Whitfield v. Dayton, 21072.

CourtUnited States Court of Appeals (Ohio)
Citation167 Ohio App.3d 172,854 N.E.2d 532,2006 Ohio 2917
Docket NumberNo. 21072.,21072.
PartiesWHITFIELD, et al., Appellants, v. CITY OF DAYTON, et al., Appellees.
Decision Date09 June 2006

Page 532

854 N.E.2d 532
167 Ohio App.3d 172
WHITFIELD, et al., Appellants,
CITY OF DAYTON, et al., Appellees.
No. 21072.
Court of Appeals of Ohio, Second District, Montgomery County.
Decided June 9, 2006.

Page 533

Kelvin I. Boddie and Richard W. Schulte, Dayton, for appellant Renita Whitfield.

Richard W. Thiry, for appellant Shawntell Bernard.

Neil F. Freund, Dayton, for appellees.

Page 534

Steven Dean, Dayton, and Jonathan Beck, Columbus, for appellee State Farm Mutual Automobile Insurance Company.


{¶ 1} This case arises from a police pursuit that took place on August 16, 2002, at around 7:00 p.m., in the city of Dayton. At that time, the city had a policy prohibiting officers from becoming engaged in vehicular pursuits except in situations involving felonies, provided that "the felony for which the arrest is sought involved an actual or threatened attack against another person which the officer has reasonable cause to believe could result in death or serious bodily harm."

{¶ 2} The pursuit policy was contained in Executive Order No. 5-2002, which was issued on January 18, 2002. The executive order changed the former pursuit policy, effective immediately, "due to concerns for the safety of officers and citizens in the community." Many police officers did not like the restrictions in the new policy. However, the police chief at the time, William McManus, testified that he had amended the policy in order to bring Dayton in line with the best police practices across the country. According to McManus, police departments were revising policies to be much more restrictive and to give officers less discretion because of the danger involved in police pursuits and the risk to officers, persons being pursued, and the public. Dayton's assistant chief, Julian Davis, who is now Chief of Police, also stressed that the new policy was intended to curb police pursuits in urban areas because pursuits are inherently dangerous.

{¶ 3} On August 16, 2002, Sergeant Steven Abney was working as a patrol officer in the city's Third District. Shortly before 7:00 p.m., Abney was out of his district, sitting at the end of an exit ramp leading from Interstate 75 to North Main Street. Abney was typing a message and was preparing to go get a cup of coffee in the Fifth District, when he saw a 1989 Delta 88 Oldsmobile ("Delta 88") traveling by him at an excessive rate of speed. The Delta 88 almost struck Abney's cruiser. When the driver stopped at the red light at the end of the exit ramp, he waved at Abney as if to apologize for the mistake. At first, Abney decided to let the driver go because he thought the driver had simply made an honest mistake. However, another citizen pulled up next to Abney, pointed at the Delta 88, and told Abney that the driver previously had been up on the highway, had been driving erratically, and should be stopped.

{¶ 4} Based on these facts, Abney turned left onto North Main Street and followed the Delta 88 for a short distance. After the two cars had cleared a few intersections, Abney decided to make a traffic stop. Abney then turned on his overhead lights, and the Delta 88 pulled over into the parking lot of a restaurant called Chicken Louie's. Abney intended to pull the driver over for a traffic offense and had already given the dispatcher the license number of the Delta 88. He did not get any information from the dispatcher that indicated the car had been stolen.

{¶ 5} Abney got out of his cruiser and walked toward the Delta 88. However, when he reached the back bumper, the driver took off. Abney went back to his cruiser, notified the dispatcher of the direction in which the car had fled, and drove in that direction. Abney claimed that he was not pursuing at that point, but was instead simply following the vehicle for a short distance to get a direction. However, both the police chief and assistant police chief testified that none of the conditions required for a pursuit were present and that Abney should never have followed the car. Under the policy, if a

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traffic stop occurs and the violator pulls away, the officer is to report the fact to the dispatcher and is not to follow.

{¶ 6} The driver of the Delta 88 was Jerrold Bailey. Bailey's brother, Greg Hobson, was a passenger in the car. Bailey claimed that he left the traffic stop because Abney had drawn his gun when approaching the car. Allegedly, Bailey was afraid of the police because they had killed his uncle. However, Bailey had been drinking and using drugs earlier that day.

{¶ 7} As we mentioned, Abney turned on his overhead lights when he originally made the traffic stop. Abney left the lights on while "following" Bailey, who sped off at around 7:03 p.m. About 47 seconds later, Abney radioed dispatch that he was trying to "catch Bailey." Abney testified that he decided he was justified in starting pursuit 36 seconds after this dispatch, because Bailey had committed a felony crime against persons by driving on the wrong side of the road, as if intentionally trying to force an accident. This rationale was viewed with skepticism by Abney's supervisors. Specifically, Chief Davis testified that he would not interpret Bailey's action in speeding and driving left of center as a felony against unknown citizens. Instead, it would have been an attempt to get away from the police. Chief McManus also agreed that pursuing Bailey under this circumstance was a policy violation.

{¶ 8} After deciding to pursue, Abney chased Bailey for another five minutes with lights and sirens on, through several miles of urban and residential streets. At around 7:05, a cruiser driven by Officer Smith arrived and took over as lead cruiser in the chase. At the time, Smith was working for Abney in the Third District. Smith said that he heard Abney's dispatch about Bailey while sitting on a back street about a block from Interstate 75, monitoring traffic coming into downtown Dayton from Third Street. Smith then decided to go over and assist Abney.

{¶ 9} Smith claimed that in a minute or less, he was able to travel from his location on Third Street, to the interstate, up the interstate to the next exit, down the exit ramp, and up North Main Street, without using his siren and lights, and by observing speed limits and stop lights. This explanation was also the subject of skepticism on the part of Lt. Sherrer, who was the commanding officer for the entire city that day. Sherrer indicated that the pursuit occurred a long distance outside the Third District and was not just on the border. Therefore, Smith's account of how he arrived did not make sense.

{¶ 10} In any event, by about two minutes after Bailey fled the traffic stop, Smith was the lead car in the pursuit. Smith reported to dispatch at 7:05 and 17 seconds (or a little more than two minutes after Bailey fled) that he had seen someone throw a shotgun out the window of the Delta 88. Again, both McManus and Davis testified that this would not have justified pursuit.

{¶ 11} After the gun was thrown out, the Delta 88 traveled westbound on Vincent Avenue, where Bailey slowed to about five miles per hour and checked at the stop sign to see whether traffic were clear. Bailey then turned southbound on Main Street, and traveled about 45 miles per hour, with the two cruisers behind him. During the trip down Main, Bailey changed lanes once and went into the lane for oncoming traffic at one intersection, to avoid a collision with a van. Smith stated that at that point, he did not see that Bailey was trying to use his vehicle as a weapon. Instead, Bailey was trying to get away from the police. Eventually, Bailey

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turned onto Riverview Drive, and accelerated to about 50 miles per hour.

{¶ 12} Both Abney and Smith were several miles outside their district when the pursuit occurred. They traveled at speeds as fast as 55 miles per hour, in residential neighborhoods with which Smith, at least, was unfamiliar. It was early evening on a summer night, and there were parks, playgrounds, and a swimming pool in the area, as well as residences and apartment buildings. Although Abney and Smith claimed they drove slowly at times, kept a substantial distance between themselves and Bailey, and proceeded with care though intersections, a witness who observed the pursuit on West Riverview Drive testified that the Delta 88 drove by her at a high rate of speed, between 55 and 60 or even higher, with three police cars traveling right behind at the same rate of speed. The witness also said that the police were immediately behind the Delta 88, only one car length away. According to the dispatch times and the witness's testimony, the location where this occurred was slightly less than two minutes before the collision.

{¶ 13} After passing the car occupied by the witness, Bailey continued down West Riverview and then turned onto Catalpa Drive, going northbound. Bailey was driving about 55 miles per hour and ran three stop signs on Catalpa before running the last stop sign at Catalpa and Oxford. At that point, Bailey collided with a car being driven westbound on Oxford. The driver of that vehicle, Steven Whitfield, was killed as a result of the accident, and Whitfield's passenger, Shawntell Bernard, was injured.

{¶ 14} Officer Smith testified that he was aware that Bailey was driving 55 miles per hour and was running stop signs in a residential neighborhood where the speed limit was 25 miles per hour. In addition, the road in that area went up a rather steep hill. As we noted earlier, Smith was unfamiliar with the neighborhood, as it was out of his district.

{¶ 15} Lt. Sherrer arrived on the scene shortly after the accident occurred. Sherrer heard about the pursuit almost five minutes before the crash. For a short time, he was unable to communicate because the battery on his portable radio was not working. However, for almost four minutes of the pursuit, Sherrer was in his car, which...

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