The Right Of Firefighters To Apprehend Dangerous Drivers

Two cases in the news lately have raised the controversial issue of whether firefighters have the right to use their red lights and siren to stop motorists who are driving erratically.

The first case was from last July when a Sacramento Metro firefighter stopped Patrick Brosnan for driving erratically.  More on that case here.

Last week the North Carolina Court of Appeals decided the case of State v. Dorothy Hoogland Verkerk. Verkerk was driving erratically back in 2011 and was apprehended by a Chapel Hill fire engine under the command of Lt. Gordon Shatley. She pled guilty to driving while impaired (second offense) but reserved the right to appeal her case arguing that she was illegally detained by the firefighters until the police could arrive. She asked the court to suppress the evidence of her intoxication as the fruit of an unconstitutional stop.

The NC Court of Appeals sent the case back to the trial court for clarification on whether it determined that Lt. Shatley was acting as a private party (and thus the law applicable to private party searches should apply) or whether he was a governmental actor, in which case more normal criminal law principles apply.

The court concluded that if Lt. Shatley was acting as a governmental agent, the stop was a seizure that could only be justified based upon “reasonable suspicion” as per Terry v. Ohio.

The court discussed that the fact that the stop could be in the nature of private citizen arrest notwithstanding Lt. Shatley’s status as a public employee provided he was not acting as an agent of law enforcement. The use of red lights and siren did not automatically transform his actions into governmental law enforcement actions.

Judge Robert C. Hunter wrote a dissenting opinion that took the approach that because a firefighter is not authorized by law to make arrests like police officers, the arrest was inherently unlawful and the evidence should be suppressed. He went on to discuss how firefighters are not trained to make arrests and the arrest in his mind was a classic example of an unreasonable search and seizure under the 4^th Amendment

The cased has reopened a debate on whether firefighters legally can and should use red lights and siren to apprehend impaired drivers. In particular Judge Hunter’s dissent – which on the surface seems to take a very logical, common sense approach – misses an enormous point: what happens when a non-law enforcement government employee witnesses a criminal act and apprehends the perpetrator. Because the person is not a police officer any evidence seized must be suppressed and the perpetrator gets to walk free? Seriously????

Picture this: a public school teacher observes someone sneak into the school and steal a computer. He stops the perpetrator and summons the police. Under the rationale of the dissent that would be an “unreasonable” search and seizure because the arresting employee was not a trained and authorized member of law enforcement. It is absurd.

Rather than debate the factual issues of these cases again and again, let’s consider the complexity of the problem we are dealing with. It defies a simple solution like Judge Hunter’s.  Consider the following:

• Does a firefighter have the legal authority to use red lights and siren to stop a civilian vehicle?

• Can a firefighter who uses red lights and siren to stop a civilian vehicle be charged criminally with impersonating a police officer?

• Does a civilian driver have a legal obligation to pull over and stop when a firefighter displaying red lights and siren so directs?

• Can a civilian driver who refuses to pull over and stop for firefighter displaying red lights and siren be cited with resisting, evading or eluding arrest; failure to yield; or some other offense?

• In a criminal case, if a firefighter uses red lights and siren to stop a civilian driver, is the civilian driver entitled to have all evidence obtained as a result of the stop suppressed as the fruit of an “unreasonable” search and seizure?

• Can a firefighter who uses his red lights and siren to stop a civilian vehicle be sued for false arrest by the civilian who he stops? How about a Section 1983 civil rights violation for a liberty interest due process violation? How about a passenger in the vehicle?

• Can a firefighter who observes an obviously impaired driver and has the means to stop the driver (apparatus, red lights and siren) be held liable to a third party who is killed or injured by the impaired driver, for failing to stop the vehicle?

• If a firefighter attempts to stop an impaired driver using red lights and siren, and in doing so precipitates an accident, can the firefighter be held liable for damages?

• If a firefighter attempts to apprehend an impaired driver using red lights and siren, and precipitates an accident, can the fire department refuse to defend the firefighter because he was acting outside the scope of his employment?

• Can a fire department discipline a firefighter who uses his red lights and siren to stop a civilian vehicle?

• Would any of the above change if the fire department’s charter, city charter, ordinances or enabling legislation made reference to the fact that the fire department’s mission and authority was to “extinguish and prevent fires,  provide emergency medical services, and to remove or cause the removal of people from harm, whatever its cause”.

This is truly a multi-faceted issue, one that no one tends to contemplate until we are there in the moment when we observe an impaired driver and we are concerned about the safety of the public we are sworn to protect.

Should the fact that the impaired driver in this case, Mrs. Verkerk, did not kill or injure herself or an innocent civilian be taken into consideration? Judge Hunter’s solution ignores this and suggests that firefighters should not attempt to save lives in this manner.

Perhaps we might ask someone who has lost a family member to a drunk driver, if they wish a firefighter had the gumption to do what Lt. Shatley did and get a drunk driver off the road.

Here is a copy of the NC Court of Appeals ruling: State v Verkerk