Kentucky deputy chases car at 130 mph over an unlit license plate. That's fine, court says

LOUISVILLE, Ky. — The high-speed police chase through Edmonson County, Kentucky, reached speeds of 130 mph. And the alleged offenses that prompted couldn't have been more minor.

Twenty-year-old Brandon Embry had failed to illuminate his license plate on Feb. 27, 2018. And one of his two passengers, both minors, had failed to buckle his seat belt.

But when Embry fled, Deputy Sheriff Jordan Jones chased him for 18 miles until Embry's Grand Am was T-boned by an SUV and crumpled.

As Jones approached the car, he ordered a 14-year-old boy slumped over in the back seat to show his hands. When the boy failed to comply, the deputy fired a Taser into his back.

There was a reason the boy had not complied. He was unconscious.

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In an opinion issued Nov. 17, a federal appeals court panel ruled 2-1 the boy’s mother, Wendy Browning, may proceed with a lawsuit accusing Deputy Jones of using excessive force against her severely injured son.

But the appeals court unanimously dismissed a claim on behalf of the parents of both children accusing the sheriff’s department of being grossly negligent in pursuing the chase, despite the risk to the passengers, who were injured so severely they were flown by helicopter to a Nashville hospital.

The court said because the Edmonson sheriff’s office pursuit policy gives nearly total discretion to deputies to decide when to start or stop a chase, they couldn't be found liable for violating the blanket policy.

Under Kentucky law, the court said, public employees, including police, are entitled to immunity for discretionary acts.

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The decision infuriates Louisville attorney Greg Belzley, who represents the parents of the two juveniles.

"This sends a clear message to law enforcement agencies across Kentucky," he said. " … instead of having a good, restrictive pursuit policy that protects the lives of innocent citizens, have a bad one that doesn’t and you won't be held responsible."

In other words, Belzley said, the court found “because the policy was too ambiguous to prohibit this kind of irresponsible conduct, the defendants had no liability for engaging in it.”

Ironically, according to the court’s own opinion, officers in law enforcement agencies with stricter pursuit policies, including the Louisville Metro Police Department, have been found liable for violating them.

Attorney Aaron Smith, who represented the Edmonson County sheriff’s office, declined to comment on Belzley's assertions, since the case is still pending.

But in an email, smith noted that Embry, a convicted felon, "chose to run from the police with two minors in his vehicle" and "actually caused their injuries." He pleaded guilty to multiple criminal charges, including wanton endangerment, and is serving a 5-year prison sentence.

Since the crash, the Edmonson department has not changed its pursuit policy, and Sheriff Shane Doyle, who monitored the pursuit while it was ongoing, has said he doesn’t think it should have been discontinued, Belzley said in a brief.

“Basically, Doyle lets his officers chase whomever they want, however they want, regardless of the consequences,” Belzley said.

Jones still works for the department.

“No one has told Jones that he did anything wrong, or that an unilluminated license plate is no reason to chase somebody at 130 mph through the city limits of Brownsville and into the outskirts of Bowling Green,” Belzley said.

The brief says the chase went past or through 219 driveways and intersections.

According to the National Highway Traffic Safety Administration, from 1996 to 2015, more than 7,000 people died in police pursuits, and nearly two-thirds of them were occupants of the pursued vehicle.

“To be sure, the driver should not have fled,” Belzley said, “but we pay our police to be the adult in the room.”

He said the minors in Embry’s car were “unwitting, innocent and terrified” during the chase and begged him to stop.

How the Taser was used

Following the crash, the court said, Jones punched Embry in the forehead, apparently to stop him from fleeing. The blow knocked him unconscious.

Jones then turned his attention to the boy in the backseat, ordering him to show his hands multiple times without receiving a response.

Jones testified he’d heard a report the occupants may have thrown ammunition from the car and was worried they might be armed.

A girl in the car testified Embry had thrown a gun out during the pursuit, according to Smith's brief, and Jones thought the boy might be hiding a weapon.

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But affirming Judge Greg Stiver’s refusal to throw out that portion of the suit, the appeals court noted the “uncontested fact that C.S. (the boy) was found slumped over in the backseat” and showed no signs of resisting.

“The only crime that C.S. committed was failing to wear his seatbelt,” wrote Judge John Rogers of Kentucky for the panel. "That by itself is a minor traffic violation that does not warrant the use of a taser."

In a dissent, Judge Eric Murphy of Ohio said the deputy should not be second-guessed.

“If you were a police officer, what risk of getting shot would you be willing to face before using your taser to incapacitate a suspect who may (or may not) be armed after he appeared to ignore your commands to show his hands?” he asked.

What happened during the chase

Jones testified he believed Embry would have continued his "reckless and wanton conduct if not stopped," Smith said in his brief.

The deputy also said traffic was extremely light during the pursuit, the area was very rural, the weather was clear and the roads were dry and clean.

Stivers denied Edmonson County’s motion to dismiss Jones and Doyle from the lawsuit, but the appeals court panel reversed him.

It said the sheriff’s policy makes the decision to initiate or continue a pursuit "discretionary with each individual officer."

The panel noted the only requirement in deciding to discontinue the pursuit is the officer use his "discretion to see if the danger to human life is greater than the need to continue the pursuit."

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The policy says it is “impossible to develop guidelines to cover every conceivable situation that may occur” and deputies must use their “training, experience and common sense.”

In contrast, the court said, LMPD policy says the decision to initiate a pursuit must be based on the pursuing officer’s reasonable belief the suspect is a felon or suspected felon.

It also says pursuits must be terminated immediately if the officer:

• Loses visual contact with the pursued vehicle;

• Doesn’t believe it to be safe to continue the pursuit;

• Is unfamiliar with the area;

• Or is out of radio range with supervisors.

Andrew Wolfson: 502-582-7189; awolfson@courier-journal.com; Twitter: @adwolfson.

This article originally appeared on Louisville Courier Journal: Court: Blanket policy allowed Kentucky deputy to engage in risky chase