“I’m not judging that one,” DeWine said of Harper’s death. “But here you had someone (innocent) who was killed, so it just got me back thinking about the question.
“We have in this state over 900 law enforcement agencies. There is no statewide policy. And it’s not just about how the pursuit is conducted, it’s also about whether you initiate the chase to begin with.”
Harper, 50, of Xenia, died March 17 when Kyndra J. Shackelford drove an allegedly stolen Chevrolet Impala that T-boned Harper's 1993 Chevrolet Blazer at the intersection of Wagner Ford Road and Needmore Road in Harrison Twp. Huber Heights police pursued Shackelford up to 83 miles per hour.
Huber Heights followed its policy
Huber Heights Police Chief Mark Lightner said in March that officer Mark Winterbotham followed department policy that includes pursuing “traffic violators who fail to stop upon receiving proper notice.”
Winterbotham wrote in his report that he saw a 20016 Impala matching the description of one just reported stolen from Butler Twp. cross the center line.
“The officer did exactly the way he was taught, the way he learned, and it was the way policy has told him to do,” Lightner said the day after the crash.
“The concern is that you have innocent people that are killed in chases,” DeWine said. “The issue is what is the proper balance between the desire to apprehend someone and the public safety?”
Pursuit policies vary
Montgomery County Sheriff Phil Plummer and German Twp. police Chief Joseph Andzik — a member of DeWine’s study group — employ pursuit policies more stringent, only chasing for violent felonies.
“I think Huber chases for everything,” Plummer said. “They’ve chased a lot lately. So if they come chasing through Harrison (Twp.), we try to help out with traffic control and we just watch them run through the township.”
In April, Huber Heights police started a pursuit when a pickup fled a traffic stop. That chase reached speeds of 95 mph and went through Vandalia, Huber Heights, Dayton, Trotwood and Harrison Twp. before a man and woman were taken into custody.
“Here, we try to do our best to protect the citizens,” Plummer added. “Because it isn’t worth killing you and your family over chasing some idiot … tomorrow’s another day.”
Lightner declined to comment further in light of DeWine’s task force.
Harper’s family blames driver
Shackelford, 18, the woman accused of being intoxicated when she crashed into Harper’s vehicle, has been indicted in Montgomery County Common Pleas Court on charges of aggravated vehicular homicide, failure to comply with the order or signal of a police officer and grand theft auto.
Shackelford’s attorney has asked the court for a mental evaluation to determine if she is competent to stand trial and said his client may enter a plea of not guilty by reason of insanity. No trial date has been set.
Jami Rigsby, who identified herself as a spokesperson for Harper’s family, said: “We whole (heartedly) support Huber Heights police department in regards to this pursuit, and the only true cause of the accident was the person fleeing causing the pursuit.”
Harper’s passenger, Loretta Creech, 53, of Xenia, was critically injured but survived.
Pursuit policies evolve
Andzik said when he started in law enforcement in 1994, he chased drivers for nearly any reason. Now, he said, liability and risk have led his department to stop chasing juveniles because of their lack of driving and decision-making skills.
“It was a different time and place in history.” Andzik said. “We kind of used those things that happened in the past and in our history to come to better conclusions today and make those policies and practices that are going to be best, not only for law enforcement, but for society and for the community.”
Plummer said the sheriff’s office policy changed after a lawsuit stemming from a Feb. 10, 2001, chase by deputy Ted Jackson at speeds reaching 85 mph. Suspect Paul Hendrickson’s vehicle hit the car driven by Montgomery Mott, who died.
In early 2002, then-Dayton police Chief William McManus reigned in that department’s pursuit policy to be in line with best practices.
But on Aug. 16, 2002, Dayton police Sgt. Steven Abney was out of his own district when he chased Jerrold Bailey for traffic violations. Bailey’s car ran three stop signs traveling 55 mph and hit a car driven by Steven Whitfield, who was killed.
Recent high-profile chases
Before Harper’s death, the most high-profile case of an innocent third party being killed after a police pursuit was Agyasi Ector’s death in Trotwood on July 24, 2014.
A chase started after a failed Montgomery County Sheriff's Office operation. Eventually, a Chevy Impala driven by Aaron T. Johnson crossed the center line fleeing Trotwood officers near Olive Road and Shiloh Springs and struck Ector, 27, who was walking to work. The chase reached speeds of 103 mph.
Johnson was sentenced to 16 years in prison. A civil lawsuit was settled, which included a $25,000 payment by Trotwood to Ector's estate.
Lebanon grade school teacher Pamela Argabrite sued Miami Twp., the Montgomery County Sheriff’s Office and others after she was struck by suspect being chased at 80 mph on State Route 741 on July 11, 2011.
Argabrite sued for damages in 2012, alleging she'd had multiple surgeries, medical and hospital expenses of more than $630,000 and a loss of past and future earnings in excess of $57,000.
Argabrite claimed officers’ conduct was “extreme and outrageous” — the proximate cause standard strengthened when Whitfield’s family sued and lost — when law enforcement chased a known burglary suspect, Andrew Barnhart, who died when his vehicle hit Argabrite’s.
Decision could alter chase immunity
Argabrite's suit was denied in Montgomery County Common Pleas Court and that decision was upheld by the Second District Court of Appeals. The case was argued in Ohio's Supreme Court in February.
Kenneth Ignozzi, Argabrite’s attorney, argued that “the court of appeals have simply usurped the legislature and added common law things in there that are not supposed to be in there” when it comes to liability of police officers’ conduct in chases.
Miami Twp. attorney Joshua Schierloh said during oral arguments that it wasn’t foreseeable Barnhart would cause an accident.
“When you’re chasing somebody at a high rate of speed through a densely populated area, all kinds of bad things are foreseeable, aren’t they?” Ohio Justice Paul E. Pfeifer asked. ” I mean, this individual stole a TV and he’s dead. That’s a pretty bad consequence.”
Schierloh argued that without the no proximate rule: “You will embolden criminals to act dangerously, knowing that the faster they drive, the more traffic violations they commit, they will assure themselves of their freedom. That is not sound public policy for Ohio.”
Justice William O’Neill responded: “Whitfield is not law, it’s a court of appeals opinion.”
Study group will work for answers
“Chases are one of the scariest, most dangerous things we do,” said Plummer, who looks forward to a standard policy. “I understand the cops, they want to chase, their job is to catch the bad guys, but we’ve got to restrict it through policy because of public safety.”
Andzik said following procedure isn’t enough.
“What is a best practice? What is a better policy?” he asked. “When we do have those failures that an officer does follow policy, but it turns out it may have been the wrong thing to do?”
DeWine said the group’s suggestions — which he hopes are ready in about three months — should provide motivation.
“It is not absent some action by the legislature,” DeWine said. “It would not compel any law enforcement jurisdiction to adopt, but it certainly would have some high persuasive value. And I would think that after it’s adopted, every police department should at least look at it.”
Recent regional fatalities after suspects fled police
March 17, 2016: 50-year-old Marcus Harper of Xenia was killed when his car was hit by a allegedly stolen car driven by Kyndra J. Shackelford, who faces vehicular manslaughter charges in Montgomery County Common Pleas Court.
Oct. 15, 2015: Shannon Gonzalez, 37, Springfield, died after she was struck by a car driven by Raymone West. West allegedly sped away from a traffic stop by an Ohio State Highway Patrol trooper. West is scheduled to go to trial in Clark County Common Pleas Court in September on charges including vehicular manslaughter.
Nov. 16, 2014: Tommy C. David, 44, of Middletown died in Monroe after a multi-jurisdictional chase. David's vehicle went off of Ohio 63, went down a hillside and struck a fence and a tree.
July 24, 2014: 27-year-old Agyasi Ector was killed while walking to work in Trotwood. Aaron T. Johnson crossed the center line fleeing Trotwood officers. The chase reached speeds of 103 mph. Johnson was sentenced to 16 years in prison.
June 24, 2014: 12-year-old Kayla Mongold of Springfield died when she was walking with a friend and was hit by a car driven by Joseph Thomson, who had fled from police who tried to stop him for speeding. Thomson was sentenced to 12 years in prison.
July 11, 2011: Lebanon grade school teacher Pamela Argabrite was struck by suspect Andrew Barnhart, who was being chased by Miami Twp. police at 80 mph down State Route 741. Barnhart died. Argabrite's lawsuit is awaiting decision by Ohio's Supreme Court on whether a jury should hear the case.
Ohio/U.S. deaths to innocent third parties involved in police vehicular pursuits
2008: Ohio 11; U.S 96
2009: Ohio 7; U.S. 117
2010: Ohio 7; U.S. 128
2011: Ohio 9; U.S. 100
2012: Ohio 5; 120
2013: Ohio 0; 117
2014: Ohio 8; 112
2015-16: Data not yet available
Note: Includes occupants of third-party vehicles and non-occupants such as pedestrians. The numbers do not include police officers or suspects killed in chases.
Source: National Highway Traffic Safety Administration
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