The Charlotte News

Wednesday, March 26, 1941

SIX EDITORIALS

Site Ed. Note: Speaking of traffic, as in "Rip!", we note an eery concord which occurred in the wee hours of yesterday morning: a gasoline truck, a regular object of scrutiny by The News editorial column, overturned while apparently trying to take a curve too fast on the freeway leading to the Bay Bridge in Oakland, California. The 8,600 gallons of gasoline promptly spilled from the resulting fissure in the tank, caught a spark and boom, bam, boom--exploded.

By some dint of miracle, Driver Mosqueda escaped his cab, walked a mile and a half to a taxi stand where he met a cab driver who took him to the hospital with minor burns; no one else was even injured in the accident, thanks to the early hour on a Sunday.

But, the flames reached 3000 degrees, causing the steel frame of the highway above the burning truck literally to melt and buckle, along with the attached concrete, like rubber, ribboning down onto the cauldron's mass of wreckage below.

What is most eery about the thing is that it is in the same area, and indeed blocks the replacement artery built afterward, which fell in the 1989 Loma Prieta earthquake, of which we have made mention here before, as we ourselves were there then and missed being in that one by only about thirty minutes, having passed quite abnormally over the artery on our way to San Francisco that afternoon, making a fateful choice not to proceed north where normally we would have gone from this area, which would have stuck us in a long line of traffic going home early from work for the eventuality of the early traffic jam precipitated by the World Series game that afternoon between San Francisco and Oakland, an event we shall never forget, one which changed our perspective on life and its mystical spirits once and for all time.

It all becomes even a little more eery, given the mention below in "Rip" of the hypothetical involving confluence with the Albemarle Road, which, as you might fathom by logical inference, leads from Charlotte to Albemarle, passing through Locust and Red Cross to get there. Make of it as you like it, but we find it most interesting that our latest posting of these many editorials from The News on gasoline truck accidents was one involving one which by fortuity did not explode, down at the Atlantic & Pacific Tea Company outlet in Albemarle, that editorial being one which we placed online on Boxing Day, 2006, from December 19, 1939, "Narrow Squeak".

Boxing Day, 2006, incidentally, was the same day, the news of which came to us after we had written our note, that President Ford passed away.

Salutary moral to the tale is that traffic in the Bay Area is so snarled today that few now can get to work except by mass transit, which is, this day, running free of charge.

Thus, we might all breathe a little easier the next few months in cleaner air while they effect repair.

Who knows? It might catch on this time.

It did not the last time.

We ourselves, we are proud to say, however, since that fateful October 17, 1989, have scarcely ever again commuted by car. And that’s a fairly long time now, Pilgrim. Before it, we were to and fro almost every day, back and forth, waiting, waiting, creeping along, breathing exhaust, hearing horns, waiting, listening to music, waiting, examining the clock, biting our nails, running up our heart rate considerably, hoping we would not be late, waiting, waiting—for what though we have yet to determine. Well…

Perhaps, Mother, while being kind this time to everyone, will soon let loose with her sparker-show again, venting her building and quite colossal anger and let ‘em (that is, us) have it right in the jaw, as before, in 1989. We hope not, but those big old cracks in the earth are still there, boys and girls, no matter how we may build over them and try to wipe them from our minds, still just chafing ever more daily at the bit to let go themselves and release their pent-up tension. It happens.

We know; we saw it and felt it one day nearly eighteen years ago. (Our mama gave us a poppin’ or two long time ago for being, shall we say, overly consumptive of air, that is to say a bit too gregarious, and we can therefore readily appreciate the allegory within Nature itself.) No warning except that in the lead-up to these things we have noted that the deer and other wildlife start acting quite strangely, crazy even, including, at times, the human wildlife.

So, take note.

The driver sued the officer pursuant to 42 USC 1983, alleging that the officer used unreasonable and excessive force in undertaking deadly force to accomplish a seizure of the vehicle, and was thus liable for the resulting injuries.

Justice Scalia, writing for a splintered majority of eight, held that, while recognizing that under the procedural stance of the case, it having been decided for the driver in the lower courts on the issue of whether the question of unreasonable force by the officer could be submitted to a jury, the courts must view the evidence most favorably to the non-moving party for the dismissal, i.e., here the driver, in this case, there was available a videotape which the Supreme Court could and did view; the videotape (also available online) shows that the driver took life-threatening risks in driving recklessly at high speeds, passing cars on double yellow lines, running stoplights, and generally causing a dangerous situation, and that the officers therefore giving chase acted reasonably in ending the chase by butting the rear of the vehicle with their bumper. Thus, according to the majority, the question of liability of the officer could not be submitted to the jury to determine whether or not he used reasonable force and the lawsuit brought by the driver will be dismissed.

The officer in this instance, having been deemed by the Court, viewing the evidence objectively, to act as a reasonable peace officer acting under similar circumstances, to use the legal phrase, enjoys "qualified immunity" from suit under the civil rights statute which allows suit for damages by citizens against persons acting under "color of state law" for abrogation of any fundamental civil liberty recognized by Federal statute or the Constitution--but only where the officer does not enjoy the so-called "qualified immunity" by having acted reasonably under the circumstances as viewed by the reviewing court objectively after the fact.

Justice Stevens dissented. He indicated that the chase began on a four-lane divided highway, that there were no pedestrians present along the roadway, and that it was reasonable to conclude that most or all of the 13 cars the driver passed were already pulled to the side of the road, responding to the sirens of the chasing officers. He also noted that the Court was departing from its normal procedure of deferring to the lower courts’ assessment of facts by holding that the District Court’s and Court of Appeal’s rendering of the facts, leading them to hold that the driver’s case could go to the jury for determination of whether the chase by the officer and the force finally used in bumping the vehicle from the roadway was reasonable under the circumstances, was unreasonable.

Justice Stevens concluded therefore that while each such case turns on its facts, a chase through the desert, for instance, being a far different matter than one through a heavily populated area, just as with factors of the nighttime chase here and the fact that the original reason for the chase was a minor traffic citation, not a crime calling for the use of deadly force in capturing the suspect, as well that the officers already had the license information of the vehicle and could thus effect an arrest later, this particular chase, viewed in a light most favorable to the driver under the procedural circumstances under which the matter came to the Court, was one which should be allowed to proceed to the jury for determination of whether the officer used proper force, that the courts within Georgia were more familiar with their roads and traffic patterns than the Supreme Court of the United States sitting in Washington, and thus the decision of the lower courts to allow the matter to proceed should be affirmed.

We have made comment before in conjunction with The News editorials, usually by Cash, on high speed chases in and around Charlotte during the late 1930's through 1940-41 in which they regularly deplored this sort of activity, usually involving chasing moonshiners, opining that such chases placed the average motorist on the roadway in far more danger than the offending conduct which gave rise to the chase in the first place, and thus, weighing the competing social benefit of catching a relatively minor offender against the danger inherent in giving chase to do so, such chases should cease.

We agree with the learned hand of Cash, having read too many stories of the sort of this one from Georgia where the chase ends in fatalities or serious injuries, not only placing the chased at risk, but moreover the chasing police officer, pedestrians, or other innocent motorists and their passengers winding up stumbling unaware into harm’s way.

Indeed, this sort of inherent danger obviously increases by manifold turns on a rainy night in Georgia, when we are all wont to be more tired and sleepy, only to be fast awakened and given then to erratic reaction to find around the sudden turn of a curve a hurtling Cadillac, driven by someone contemplating Maybelline or else, coming at us down the road apace being chased by a copper’s lit up V-8 Ford at about 110 a half a mile ahead.

And, to their great credit, many states and localities are abandoning this dangerous practice of giving chase for minor offenses, opting instead to sock it to the driver with felony charges after he or she reaches the place of final safe haven.

In any event, we agree with Justice Stevens that the jury in the locality where it occurred should make the ultimate decision on it, not the Supreme Court of the United States viewing a grainy, rain-blurred, hard to fathom video tape, (hard to fathom even for our 20-20 uncorrected eyes in fact, assuming the generation copy online is equal in quality to that viewed by the Court, which may be a false assumption).

The videotape views like an arcade game and is scary to watch. Thus, we won’t link you to it and you can use your own discretion.

Obviously, the driver was somewhere out of his ordinary on the evening in question, though there was no indication of alcohol or drug use. Why he ran is not indicated either. He apparently was cruising in his dad’s Cadillac and did not wish to be caught speeding, for whatever reason. He is now tragically crippled for life. The whole story is a sad and unnecessary one and the 19-year old young man should have known better. But, whether the officers should or should not have given chase on the rain-slickened road at night, prompting the high speed careering attempt at escape by the young and scared driver, is a question, we believe, that should be left to the sound judgment of a jury, not to be decided, as if something off Judge Wapner (at 4:00, channel 99) or one of those Speeder Wanted Dead or Alive "reality" shows, by the Supreme Court.

The issue at stake, remember, is whether or not the jury may decide whether or not the officer (and, in actuality, the entity employing him, the city or county) is liable for damages for the young man’s paralysis, not whether there is liability in fact.

Respectfully, therefore, we join in dissent with Justice Stevens and think that the jury ought be able to decide the issue, as it relates to their own community, involving a careful balancing act between countenancing strict law enforcement for minor traffic offenses, the extent to which public safety might be generally compromised by speeders, in this case one originally clocked at 73 in a 55 m.p.h. zone, and the accretion to public safety concerns from the dangers added by the chase itself, which here led to speeds over 90, passing of vehicles in no passing zones, running of several stoplights, and, by the officer’s bump, the driver’s own near death and lifelong paralysis at the end.

For editorials on errant police chases in The News, see "Plea for Caution", April 25, 1938, "Menace By The Law", October 25, 1938, "The Worse Crime", July 8, 1939, "Their Duty", July 13, 1939, "Dry Hazard", August 17, 1940, and "New Rules", October 23, 1940.