Bill would make eluding police `violent'

State troopers are seeking legislation to help protect law enforcement officers from possible criminal charges if a felony vehicular pursuit results in a death.

But that added layer of insulation for officers isn't a get-out-of-jailfree card, according to Oklahoma State Troopers Association, which submitted the proposed change.

House Bill 2281 would make eluding an officer a “violent crime,” if the fleeing motorist “endanger(s) any other person” or causes a crash that results in “great bodily injury” to someone — or felony eluding.

“The officer still has to be justified and do everything the right way,” Keith Barenberg, Troopers Association president, told the Tulsa World this week. “This is not an out for any officer. He is still liable for what he does.”

The bill passed last week in the House with a vote of 70-26 despite much confusion on what the measure would actually do.

Some lawmakers argued against the bill, at least in part, because they thought it added felony eluding to the list of so-called “85 percent” crimes, meaning offenders must serve at least 85 percent of their sentence before becoming eligible for parole or probation.

But the bill doesn't involve the minimum percentage requirement statute. It places felony eluding under the definition of what constitutes a violent crime in the repealed Oklahoma Prison Overcrowding Emergency Powers Act.

While the rest of that act has been repealed, Troopers Association attorney Gary James said the defined list of violent crimes remains in use through case law.

“It's become the de facto definition of a violent crime in Oklahoma,” James said.

James said his concern is the abundance of law dictating that officers can't use deadly force when someone is committing a nonviolent crime. He said an attorney could argue that an officer who rammed a fleeing suspect used deadly force on a nonviolent offender because felony eluding isn't listed under that “de facto” list of violent crimes in the state.

“It just clears up our Oklahoma statute to fall in line with the U.S. Supreme Court that you have the right to use deadly force on a violent crime and not a nonviolent crime,” James said.

Misdemeanor eluding — a motorist who attempts to escape law enforcement but doesn't endanger the public — wouldn't be considered a violent crime under the legislation.

James said a tactical vehicle intervention — or TVI — isn't considered deadly force by the Oklahoma Highway Patrol. An officer performs that type of intervention by using the front quarter-panel a patrol vehicle to make contact with the fleeing vehicle's rear to spin it out.

Ramming a vehicle off a road — a different action than a tactical vehicle intervention — is considered deadly force by the highway patrol, James said.

But what constitutes deadly force by policy isn't uniform across law enforcement agencies in Oklahoma. Nor is whether tactical vehicle interventions or ramming are allowed by policy, either.

For example, the Tulsa Police Department's policy doesn't authorize ramming or bumping. The Tulsa County sheriff's office prohibits contact between vehicles unless there is a “clear and present danger” that can only be prevented by such a maneuver and in which deadly force is justified, according to its policy.

The Oklahoma Highway Patrol declined to comment on the Troopers Association's pending measure.

The legislation's cosponsor, Rep. Daniel Pae, R-Lawton, initially told the House the bill is necessary for officers to have the justification to use deadly force on a fleeing driver who has injured another person or damaged property.

Later, Pae walked that statement back to say he meant in order to perform a tactical vehicle intervention, not use deadly force.

Afterward, Barenberg said he spoke with a handful of lawmakers who opposed the bill to better explain its intent.

One of those was Rep. Jason Lowe, D-Oklahoma City, who also is a criminal defense lawyer.

Lowe told the Tulsa World that after Barenberg's explanation he now has no problem with HB 2281 and probably would have voted in favor of it. Lowe's only minor concern is piling on violent crimes in Oklahoma.

“I think we have enough violent crimes on statute,” Lowe said. “I just don't think we need to add more to it. I'm a big believer in rehabilitation instead of incarceration.”

The fiscal analysis of HB 2281 notes that violent offenses can prolong prison sentences. So the bill could increase the prison population and the public costs to incarcerate those inmates.