Barrett Must Overrule FPC Pursuit Order
Fire & Police Commission ignored century of precedent by demanding Flynn alter pursuit policy.
The Police and Fire Commission recently issued a directive to Milwaukee Police Chief Ed Flynn to change the pursuit policy of the MPD. Under the directive, the MPD would be required to continue high speed pursuits of automobiles under some circumstances, including some cases of reckless driving. Mayor Tom Barrett has the option to overrule this directive. He should overrule it for the following reasons.
The Commission directive ignores more than 100 years of common law and police reforms that were implemented to correct prior abuses. At common law, the police were permitted to use deadly force against a fleeing felon, but not against a fleeing misdemeanant. In other words, they could use deadly force against a fleeing burglar, but not against a fleeing shoplifter. They were never privileged to use deadly force for a traffic violation.
A high speed pursuit with modern automobiles is the use of deadly force. Chasing someone at 80 miles an hour through a red light at 76th and Capitol is more likely to kill someone than firing a rifle through that intersection.
The common law has been modified by most police departments over the years, for obvious reasons. At one time, for instance, Virginia police would shoot and kill fleeing moonshiners, even though they had committed no violent act, and could have been arrested later. Under the reforms that resulted, a wide range of police discretion was recognized, and deadly force, including high speed pursuits as well as the use of weapons, was limited to truly dangerous circumstances where it was necessary to arrest violent felons.
The whole element of police discretion is not discussed by most people. In fact, police officers are no different from doctors and lawyers in their use of professional discretion. They have one of the most difficult jobs in society.
There are many methods and technologies to arrest drivers later, even drivers of stolen cars. These include calling ahead for interception; video cameras; enhanced penalties for fleeing to deter it; and many others.
Historically, directives from police and fire commissions tended to order a reduction in the use of deadly force by police departments, not to order its use for traffic offenses. And these directives were not always obeyed. For instance, after various police actions in the 1960’s, Milwaukee Police Chief Harold Breier refused to order his officers to wear identifying badges on the grounds that badges could be ripped off and used as weapons. The Common Council then passed a resolution ordering him to sew on cloth badges. He still refused to comply.
A more detailed description of the evolution from the common law to modern policing practices is set out in an article I wrote, Police Discretion in Wisconsin, 1974 Wisconsin Law Review 1131. That article has been used as course material at the University of Wisconsin Law School, and is cited in the Wisconsin Statutes as reference material on the role of the Milwaukee police chief.
Chief Flynn is one of the finest police chiefs in the country, and we got him here with great difficulty. It involved a national search, and work by national policing experts. He is one of the few police chiefs in the country who has the stature, ability, and reputation to be the chief in New York, Chicago, Los Angeles, Atlanta, Boston, or any other large city. He is reportedly looking for alternatives, in light of this directive from the Police and Fire Commission. But to replace Flynn with a less experienced police chief will result in an increase of deadly force by MPD. Our entire city should let him know that we appreciate his service, and that we recommend to the Mayor that he overrule this undoubtedly well-intentioned but flawed directive.
Matthew Flynn is a Milwaukee attorney.