Who Killed Dr. Linda Davis? The Law Says ICE is at Least Partially to Blame.

The views expressed on the Expert Forum are those of the authors writing in their personal capacity. The views presented do not represent the American Constitution Society or its chapters. 

On February 16, Dr. Linda Davis was tragically killed when her car was struck by another vehicle fleeing an ICE arrest. Dr. Davis’s death is obviously heartbreaking for her family, her students, and her community. Her death has also impacted people who did not have the privilege of knowing her by raising important legal and policy questions about who bears the responsibility when ICE engages in reckless vehicle pursuits to enforce civil immigration orders.

Unfortunately, the chase that killed Dr. Davis was not an isolated event. Federal immigration agents have a lengthy documented history of engaging in dangerous and sometimes deadly vehicle pursuits to carry out immigration arrests. During last year’s immigration enforcement surges in Los Angeles and Chicago, ICE agents regularly used aggressive vehicular pursuit tactics. For instance, ICE agents sparked a large protest last October in Chicago when they used a PIT maneuver in the middle of a residential neighborhood to execute an immigration warrant.  The same month, ICE agents in Oxnard, California intentionally rammed the vehicle of a US citizen that it was attempting to detain. ICE has also caused a series of crashes across the country this month, including those reported in Providence, Rhode Island, Austin, Texas, and Detroit, Michigan. Given the volume and frequency of ICE-involved vehicular accidents, it is unsurprising that pursuit tactics are effectively authorized by DHS leadership. Last year, DHS rescinded Biden-era guidance that created a reasonableness standard for agents and urged consideration of risks to the public before engaging in a vehicle pursuit. In its place, the Trump administration implemented a policy that removes the reasonableness standard and fails to acknowledge the risks associated with chases. ICE’s traffic pursuit practices starkly diverge from accepted national policing standards.

National best policing practices limit vehicular pursuits to exceptional circumstances where failure to immediately apprehend a suspect presents an imminent risk of danger to the public. The Policing Executive Research Forum (“PERF”), a leading policing policy think tank has recommended that law enforcement officers not pursue a fleeing vehicle unless they have a reasonable suspicion that the driver was involved in a violent crime. PERF also advises against pursuits if the identity of the driver is known and can be detained at a later date. This guidance is informed by the extremely high risk of harm associated with pursuits as well as the legal liability that law enforcement agencies face if the chase results in a crash.  Neither of PERF’s concerns are conjectural.

Vehicular pursuits are dangerous and deadly especially when they are conducted in densely populated areas. According to the Bureau of Justice Statistics, between 1996 and 2015, “an average of 355 persons (about 1 per day) were killed annually in pursuit-related crashes.” Of the people killed in pursuit-related crashes from 1996 to 2015, approximately 33% were bystanders, 65% were occupants of the vehicles being pursued, and “slightly more than 1%” were law enforcement officers. Nationwide, these dangers are borne disproportionately by people of color.

Because pursuits cause death, injury, and property damage, they often result in lawsuits for the pursuing officer and law enforcement agency that employs them. Courts have found police pursuits are actionable under the U.S. Constitution and state common law. First, a pursuit can violate the substantive due process clause of the Fourteenth Amendment. In 1998, the Supreme Court decided Sacramento v. Lewis, which recognized that a passenger injured by a police high-speed chase can sue under 42 U.S.C. § 1983 for a violation of the substantive due process clause. While the Court declined to find that a Fourteenth Amendment violation occurred under the facts in Lewis, it held that police chases where the officer is intending to harm the suspect or worsen their legal rights would support a claim. Additionally, the Court in Lewis was careful to caution that the “intent to harm” test was specific to the particular facts of the case stating “deliberate indifference that shocks in one environment may not be so patently egregious in another, and our concern with preserving the constitutional proportions of substantive due process demands an exact analysis of circumstances.” Accordingly, a number of lower courts have distinguished Lewis. In particular, the Third, Fourth, Seventh, and Tenth Circuits have found substantive due process violations where chases lasted several minutes or were not in response to an emergency or imminent risk like they were in Lewis.

Another source of liability is state tort law. Police officers have been held liable for conducting reckless vehicular pursuits that proximately cause another driver's injury or death. In Georgia, where Dr. Davis was killed, police officers are liable for police chases when they fail to “properly balance the risk [of the pursuit] to the safety of other drivers” and exercise “due regard for the safety of other drivers." The Georgia state standard is what will ultimately control any case Dr. Davis’s family would bring against ICE.

The Supreme Court’s recent Bivens jurisprudence likely forecloses Dr. Davis’s family from pursuing a Fourteenth Amendment claim against the individual agent. However, victims of ICE misconduct can sue the federal government under the Federal Tort Claims Act (“FTCA”). Under the FTCA, state torts are actionable against the federal government to the extent a plaintiff would be able to sue a private person for similar conduct in state court. Accordingly, if Dr. Davis’s family could sue an officer for proximately causing her death under Georgia tort law, she would be able to sue the federal government for the same conduct under the FTCA.

While further details may emerge, the federal government should be liable under the FTCA based on the facts that we know. The driver that collided with Dr. Davis was being pursued by ICE to enforce a 2024 deportation order. Civil immigration matters are not the type of imminent threat or emergency situation that policing experts and courts have recognized justify the significant dangers of a chase. This is particularly true, since the pursuit occurred in a densely populated area during Savannah’s morning commute rush hour.

While the driver that struck Dr. Davis is currently incarcerated on criminal charges, he does not bear sole legal responsibility for her death. Both legal and policy guidance advise that an officer should only undertake a pursuit in emergency situations where no other options are available. Overstaying a deportation order is not the type of emergency situation that courts or law enforcement experts have found justify a vehicular pursuit. ICE agents may not be the ones facing a criminal trial for killing Dr. Davis but their employer, the federal government, can and should be sued for causing her avoidable death.

Access to Justice, Damages, Deportation, Immigration