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Nebraska is the only state in the country which imposes strict liability for law enforcement motor vehicle pursuits on a law enforcement agency even when it is the driver of the vehicle being pursued that causes injury to an “innocent third party”. This means that this liability is imposed even if the law enforcement agency is not in any way negligent in its pursuit and follows to the letter the motor vehicle pursuit policy that all law enforcement agencies in Nebraska are required by statute to have in place.
This law, written by Senator Ernie Chambers, was passed some 30 years ago, in an effort to protect an “innocent third party” who is injured due to a police pursuit. In the debate at that time, Senator Chambers spoke of compensation for parties who were not involved in the chase, such as innocent bystanders and persons in other vehicles that might be hit by the fleeing vehicle. I don’t believe that anyone would have envisioned how the law has evolved over time.
Since the Legislature did not define “innocent third party” for purposes of the strict liability pursuit law, the courts have judicially constructed a definition. However, in a recent lawsuit, the Nebraska Supreme Court held that a passenger in a fleeing vehicle, who was drinking from an open container of beer and was in possession of methamphetamine, was nonetheless still an innocent party. As a result, the self-insurance pool for the counties had to pay $1 million in damages. This holding caused one Supreme Court judge to issue a separate opinion, where he stated that he doubted that most members of the Legislature would characterize such a passenger in a vehicle fleeing from law enforcement as an innocent third party. However he concurred with the final result of the court because the Legislature had not replaced the court’s definition with one of its own. He went on to emphasize that the Legislature has the power to change the result in a future case by narrowing the definition of “innocent third party”.
After this lawsuit, a local county commissioner and deputy sheriff contacted me and asked if the law could be changed. As a result, I introduced legislation. LB 188, which defines “innocent third party”, was debated for six hours over the last two weeks. I offered a motion to invoke cloture, which received 37 votes, 4 more than required. This cut off debate, allowing for a vote to be taken on the advancement of the bill, which was also successful.
LB 188 does not change the law relating to bystanders or for persons in other vehicles. It only affects passengers in the fleeing vehicle and only under certain circumstances such as if they are sought to be apprehended by law enforcement or if they have engaged in conduct chargeable as a felony, which for the most part have been spelled out through case law.
Over the years, the number of police pursuits has decreased significantly, which is good. However, law enforcement still need this option in certain circumstances. LB 188 will give the court some standards to consider in determining whether a passenger in a fleeing vehicle is really an “innocent third party” and therefore eligible for automatic recovery of up to $1 million in taxpayer money.
LB 188 was not designated as a priority bill and may be the last bill that is debated this year without priority status. Next week is the deadline for designation of priority bills. After that date, typically only bills with priority status or bills that are non-controversial and eligible for consent calendar, are placed on the agenda.
I encourage you to contact me with your thoughts and opinions on legislation being debated by senators or if you have questions on any bills. I can be reached at District #1, P.O. Box 94604, State Capitol, Lincoln, NE 68509. My email address is email@example.com and my telephone number is (402) 471-2733.