A Staff Report from the Straight Dope Science Advisory Board

Can cops really commandeer cars?

April 25, 2006

Dear Straight Dope:

Every run-of-the-mill cop movie I've ever seen involves a car chase in which, at some point, an officer commandeers a civilian's vehicle. You know what I'm talking about--the cop's car crashes and he or she jumps out, flashes a badge at an innocent motorist and announces that he or she is "commandeering the car." The civilian then jumps out of the car and the cop continues the chase in the civilian's car (which usually gets wrecked as well). I don't know much about constitutional law, but this seems to be an impermissible taking of a citizen's private property. My question is: Is there any U.S. jurisdiction that actually permits this, or is it simply a figment of a screenwriter's imagination perpetuated by Hollywood?

This is a complicated question. It presents at least six issues.

First, there's an empirical question: Do police officers ever demand the use of vehicles or other property? Absolutely. For example, snopes.com found an interview with one officer who had commandeered three vehicles in a 26-year career. Blackman v. City of Cincinnati, a 1942 Ohio Supreme Court case, involves a police officer who ordered a driver to use his vehicle to chase a fleeing felon. So yes, police do commandeer vehicles. Daniel Engber, in Slate's Explainer, notes: "Policemen used to commandeer cars more often. As recently as 40 years ago, New York City cops on foot would routinely flag down taxis when they needed to bring arrested criminals back to the station house." Commandeering isn't limited to cars. After Hurricane Katrina and the subsequent flood, police commandeered a pharmacy to help the sick.

Second, is it legal for the police to order me around and take my stuff? The experts agree: Probably. Many jurisdictions require civilians not only to surrender their property to a police officer in an emergency but to help officers subdue suspects on command. The Connecticut Supreme Court noted in State v. Floyd that "the basic concept that every citizen can be compelled to assist in the pursuit or apprehension of suspected criminals has ancient Saxon origins, predating the Norman Conquest, and . . . derives from a time in which the public peace depended upon the ability of the populace to summon their neighbors, through the raising of the 'hue and cry,' to come to their assistance when a crime had occurred." In an essay published in the 1992 Yale Law Journal, Jon C. Blue, the trial judge in Floyd, elaborated on this custom:

The antecedents . . . are centuries old. Their origins lie not in the urban landscape of present-day America but in the forests and walled cities of medieval England. Long before the creation of organized police forces, the common-law process of apprehending suspected felons was the hue and cry. The person discovering a felony would raise a cry of "Out! Out!" prompting the neighbors to turn out with their bows, arrows, and knives. The "hue" would be passed by horn-blowing from town to town until the ad hoc posse caught the malefactor or gave up the chase. Any malefactor overtaken would receive summary justice.

At first the hue and cry was a custom, but as time passed, participation dropped off, so Parliament made the custom a command:

The First Statute of Westminster [1275] provided: "That all generally be ready and apparelled, at the Commandment and Summons of Sheriffs, and at the Cry of the Country, to sue and arrest felons, when any need is . . . and they that will not do so . . . shall make a grievous fine to the King." Ten years later, the Statute of Winchester not only affirmed the obligation of the populace to join in the hue and cry, but also commanded every man between fifteen and sixty years of age to have in his house a quantity of arms "to keep the Peace." Wealthy subjects were required to keep "an Hauberke, a Breast-plate of Iron, a Sword, a Knife, and an Horse." The less wealthy were obliged to keep swords, knives, bows, and arrows.

Today most jurisdictions have rules empowering sheriffs, and the police generally, to command assistance from the public. These laws are sometimes called posse comitatus ("the power of the county") statutes. Ironically, England repealed its statute permitting sheriffs to command assistance in 1967. However, Blue says, "English constables are still thought to have the power to call upon bystanders to assist them in cases of reasonable necessity."

The Supreme Court has upheld the federal government's power to commandeer private property but imposed strict limits. In United States v. Russell, the court noted:

Extraordinary and unforeseen occasions arise, however, beyond all doubt, in cases of extreme necessity in time of war or of immediate and impending public danger, in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner . . . but the public danger must be immediate, imminent, and impending, and the emergency in the public service must be extreme and imperative, and such as will not admit of delay or a resort to any other source of supply, and the circumstances must be such as imperatively require the exercise of that extreme power in respect to the particular property so impressed, appropriated, or destroyed.

Some states have imposed similar requirements. For instance, in 1999, Ken Salazar, the Colorado attorney general, opined that absent a declared emergency, police could not

commandeer the use of an electricity generator and employ it to provide electricity to other citizens. To do so . . . the sheriff would have to demonstrate that he could not have "fully performed" his peace keeping functions in that situation without the use of that action, and therefore, his power to act was implied. The sheriff would have to justify his actions based on the facts of each situation, and after the actions have occurred. Therefore, the sheriff is taking a legal risk when relying on a later justification of implied powers. By contrast, the use of traditional arrest powers is more appropriate and well defined.

Salazar was careful to note that a state statute authorized "the sheriff to 'command aid' from others; this language derives from the traditional notion of 'rounding up the posse.'" But he saw the power as limited to property commandeered in order to make an arrest: "The codification of the 'commanding aid' statute clearly contemplates aid in the making of an arrest and not otherwise."

So there you have it. In most jurisdictions, police can take your property or insist that you help them, at least under some circumstances.

Some jurisdictions permit firefighters to demand your property too. The Martinsville, Virginia fire department's website notes, "In pursuance of using horses for transportation, an ordinance was passed authorizing firemen to stop and commandeer any horse-drawn vehicle on the street to pull apparatus to the fire scene." Similarly, one court suggested that the state might destroy buildings to prevent the spread of a fire.

Third, what if you refuse to help or surrender your belongings? In jurisdictions having a posse comitatus law, you could be fined and possibly even jailed. In Connecticut, for example, failure to assist a firefighter or peace officer on command is a Class A misdemeanor, which carries a maximum penalty of a year in jail and a $2,000 fine.

Fourth, are there any limitations on this power? The earliest American case discussing the crime of "refusing to assist an officer in making an arrest" is Dougherty v. State, an Alabama case. The court held that the defendant should be acquitted if an attempt to give aid would be both futile and dangerous. Other courts have noted that the request must be legal, and a few have held that just because a law requires a citizen to obey doesn't mean the police are authorized to command--a separate statute is required for that. Still other courts have seized on the word command--they require the prosecution to prove that the defendant disobeyed a command, not just a request.

There are also constitutional limits. Is it constitutional to require people to risk their personal safety and property when a law enforcement officer asks? The Connecticut Supreme Court addressed this question in the Floyd case mentioned above. In Floyd, a statute making it a "misdemeanor for any person to refuse to assist a peace officer or fireman authorized to command assistance in the execution of his duties" had been challenged as an unreasonable seizure under the Fourth Amendment and denial of due process under the Fifth and Fourteenth Amendments. The court found the statute constitutional, but imposed conditions similar to the Dougherty case: A peace officer could command the assistance of a civilian only when such assistance is "both demonstrably necessary and reasonable under all the circumstances."

Fifth, what if they destroy or damage my property? That's less clear. In United States v. Russell the Supreme Court was faced with a claim for three steamers commandeered by military authorities during the Civil War. The Russell court found it obvious that "the taking of such property under such circumstances creates an obligation on the part of the government to reimburse the owner to the full value of the service." The court continued, "private rights, under such extreme and imperious circumstances, must give way for the time to the public good, but the government must make full restitution for the sacrifice." The court concluded that the obligation to make full restitution was based on an implied promise "on the part of the United States to reimburse the owner for the use of the steamboats and for his own services and expenses, and for the services of the crews during the period the steamboats were employed in transporting government freight pursuant to those orders."

The Supreme Court hasn't said what happens if equipment is borrowed and returned damaged, but lower courts have been reluctant to award compensation in such cases. In Blackman v. City of Cincinnati, for instance, the Ohio Supreme Court refused to compensate a vehicle owner for a crash that occurred when police ordered him to chase a fleeing suspect. Other courts have followed suit. In a much-discussed case, Customer Co. v. City of Sacramento, the California Supreme Court rejected a claim for compensation by a convenience store owner whose store was damaged when police used tear gas to flush out a suspect hiding inside. The court hinted that the result might be different if a plaintiff were seeking compensation after police "commandeered a citizen's automobile to chase a fleeing suspect, or appropriated ammunition from a private gun shop to replenish an inadequate supply. Conceivably, such unusual actions might constitute an exercise of eminent domain, because private property would be taken for public use," entitling the owner to compensation. Even then, the court recognized that Blackman suggested the opposite result.

Fact is, it's not easy recovering for damage caused by the police regardless of circumstances. Courts have refused compensation to people whose property the police damaged while executing arrest warrants or search warrants. They've also refused compensation when police intentionally damaged property in an effort to flush out a suspect. Of the state courts that have considered the issue so far, only three, Minnesota, New Jersey, and Texas, have allowed those with damaged property to recover.

Of course there are other sources of recovery. If you have the right kind of insurance, it probably covers your vehicle if it's damaged by police while they use it for law enforcement purposes. Many jurisdictions also either voluntarily compensate those who suffer damages when following the instructions of law enforcement personnel, or are required by local law to do so. Some victim compensation funds allow claims like this. Those injured while assisting police are often given workers' compensation benefits under the police departments workers' compensation program.

Sixth, if I'm helping the police and someone else gets injured, can they sue me? There's no clear rule. Many courts say that a person who obeys a police command for assistance is immune from suit, as the Wisconsin Supreme Court did in Kagel v. Bruger. But other courts have let cases go forward. In 1978, the United States Office of Legal Counsel noted, "We are aware of no common-law authority excusing an individual's negligence, even when acting under the direction of law enforcement officers."

References

Agthe, Dale, Annotation, Municipal Or State Liability For Injuries Resulting From Police Roadblocks Or Commandeering Of Private Vehicles, 19 A.L.R.4th (1980)

Attorney General Opinion, State of Colorado, Ken Salazar, No. 99-7, AG Alpha No. PS AD AGAWA, September 8, 1999: http://www.ago.state.co.us/agopinions/ago9907.cfm  

Babington v. Yellow Taxi Corporation, 250 N.Y. 14, 164 N.E. 726, 61 A.L.R. 1354 (1928) (Cardozo, C.J.) (Taxi driver was obligated to assist police officer on command and so was performing his duties when he was injured after police officer jumped on the running board and ordered driver to chase another car in order to arrest its occupant)

Blackman v. City of Cincinnati, 42 N.E.2d 158 (Ohio 1942)

Blue, Jon C., High Noon Revisited: Commands Of Assistance By Peace Officers In The Age Of The Fourth Amendment, 101 Yale L.J. 1475 (1992) (Arguing that statutes permitting officers to command citizens to assist them are unconstitutional)

Cohen, Charles, Takings Analysis of Police Destruction of Innocent Owners' Property in the Course of Law Enforcement: The View from Five State Supreme Courts, 34 McGeorge L. Rev. 1 (2002)

Coleman v. State, 63 Ala. 93, 1879 WL 950 (1879) (noting state statute permitting sheriff executing warrant to summon persons to assist)

Comfort v. Commonwealth, 5 Whart. 437, 1840 WL 3960 (Pa. 1840) (affirming conviction for failure to assist constable)

Customer Co. v. City of Sacramento (1995) 10 Cal.4th 368 , 41 Cal. Rptr. 2d 658, 895 P.2d 900: http://login.findlaw.com/scripts/callaw?dest=ca/cal4th/10/368.html (registration required).

Dougherty v. State, 106 Ala. 63, 17 So. 393 (1895) ("When one is duly summoned by an officer, having lawful authority, to assist him in making an arrest, the duty of the citizen to obey is absolute," but jury could acquit if it believed that an attempt to make said arrest, or to aid therein would have been both futile and dangerous to the life and limb of defendant.)

Eggleston v. Pierce County, 148 Wash.2d 760, 64 P.3d 618 (2003): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2003_sc/712964ma1&invol=3 (no compensation when plaintiff's home was rendered uninhabitable by the execution of a criminal search warrant and preservation order)

Engber, Daniel, Can the Police Commandeer Your Car? What else could they ask you to do? Slate, May 6, 2005: http://www.slate.com/id/2118242/

History of the Bellevue Fire Department: http://www.fdbd.org/history_of_the_bellevue_fire_dep.htm

The History of the Martinsville Fire & EMS: http://www.ci.martinsville.va.us/FireEMS/department%20History.htm

J.L. Short Hook and Ladder Company #1: http://www.mechanicville.com/firedept/J.L.Short.htm

Kagel v. Brugger, 19 Wis.2d 1, 119 N.W.2d 394 (1963) (owner of vehicle commandeered for use in roadblock not liable to person injured by roadblock)

Keesling v. State, 288 Md. 579, 420 A.2d 261, 19 A.L.R.4th 923 (1980)

Kelley v. Story County Sherriff, 611 N.W.2d 475, 480 (Iowa 2000): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=ia&vol=sc%5C20000601%5C98-0030&invol=1 (no taking where law enforcement officers damaged plaintiff''s door while executing warrant to arrest houseguest)

"Looters take advantage of New Orleans mess," MSNBC, http://www.msnbc.msn.com/id/9131493/

McCoy v. Sanders, 113 Ga. App. 565, 148 S.E.2d 902 (1966): http://www.lawskills.com/case/ga/id/64948/  (no taking when police drained plaintiff's fishpond searching for body)

McIlroy, Chris, Bioterrorism and State Public Health Laws: New Challenges, May 17, 2004, National Governors Association Center for Best Practices: http://www.nga.org/Files/pdf/0405BIOTERRORISMLAWS.pdf

Miller, Graham, Note and Comment: Right of Return: Lee v. City of Chicago and Continuing Seizure in the Property Context, 55 DePaul L. Rev. 745 (2006)

"Maybe You Can Drive My Car," snopes.com: http://www.snopes.com/autos/law/posse.asp  

2 Op. Off. Legal Counsel 219, 1978 WL 15306 (O.L.C.) (1978)

Owen, C. Wayne, Note: Everyone Benefits, Everyone Pays Does The Fifth Amendment Mandate Compensation When Property Is Damaged During The Course Of Police Activities? 9 Wm. & Mary Bill Rts. J. 277 (2000) (reviewing takings law in the context of damage caused by police)

"Pilot Aiding Police Pursuit Shot," CBSNews: http://www.cbsnews.com/stories/2005/05/05/national/main693173.shtml

Quinion, Michael, Questions & Answers: Hue and cry, Worldwide Words: http://www.worldwidewords.org/qa/qa-hue1.htm

State v. Brown, 264 N.C. 191, 141 S.E.2d 311 (1965) (reversing conviction for refusing to assist sheriff where statute requiring assistance had been repealed)

State v. Deniston, 6 Blackf. 277, 1842 WL 2764 (Ind. 1842) (The refusal, without a sufficient excuse, to assist a constable in preventing the escape of a person in his custody, is an indictable offense)

State v. Ditmore, 177 N.C. 592, 99 S.E. 368 (1919) (requiring entry of guilty verdict on charge of refusing to assist sheriff)

State v. Floyd, 217 Conn. 73, 584 A.2d 1157 (1991) (reversing pretrial dismissal of charge and interpreting statute narrowly to avoid perceived constitutional difficulties)

State v. Santiago, 22 Conn.App. 683, 578 A.2d 668 (1990) (affirming conviction for refusing to assist an officer) appeal dismissed, 218 Conn. 483, 590 A.2d 434 (1991).

Strahilevitz, Lior, Case Note: When the Taking Itself Is Just Compensation, 107 Yale L.J. 1975 (1998) (discussing Sullivant)

Sullivant v. Oklahoma City, 1997 OK 68, 940 P.2d 220: http://www.oscn.net/applications/oscn/DeliverDocument.asp?citeID=20463 (state constitution did not require compensation for taking when landlord''s building was damaged during lawful search)

United States V. Caltex, Inc., 344 U.S. 149 (1952): http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=344&invol=149#t6 (distinguishing impression of equipment for subsequent use from cases where the Army's purpose is limited to the sole objective of destroying property of strategic value to prevent the enemy from using it to wage war more successfully)

United States v. Russell, 80 U.S. 623 (1871): http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=80&invol=623

Williams v. State, 253 Ark. 973, 490 S.W.2d 117 (1973) (affirming conviction for refusing to assist an officer)

Wozniak, Frank, Annotation, Right To Compensation For Real Property Damaged By Law Enforcement Personnel In Course Of Apprehending Suspect, 23 A.L.R.5th 834 (1991)

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