(concurring specially).
I concur in reversing and remanding this case for a new trial.
I would further hope that time has tempered the hysteria surrounding this fatal accident and that sound objective thought by the prosecuting attorney and the trial court will give appellant a fair trial on the facts and under the appropriate South Dakota law.
This incident began by appellant’s making of a U-turn in the middle of a street in Sioux Falls at 2 o’clock in the morning, which was seen by police officers who immediately gave chase in an effort to apprehend and arrest appellant for this minor traffic violation. The appellant obviously panicked and tried to outrun the police vehicle. Other police cruisers joined in this chase, which wound through the streets of Sioux Falls for a period of six or seven minutes and at times reached speeds of over 100 miles per hour. This ill-fated procession reached its tragic climax at the intersection of 10th and Minnesota where two Argus Leader employees’ small pickup was struck by appellant’s auto. The two innocent occupants of the pickup were killed in this collision. Just a short distance to the rear were two police cruisers traveling at the same rate of speed and still in pursuit of this traffic offender. By split-second chance, it was appellant’s auto which collided with the decedents’ pickup, rather than the police cruisers.
I hold no brief for the appellant in his commission of such traffic offenses, or in his attempt to evade arrest by traveling at such speeds. By the same token, however, I am outraged by the police engaging in this high-speed chase through the streets of Sioux Falls even at this hour of the morning to arrest a man for a minor traffic violation.
As a result, two innocent people died and appellant found himself initially charged with two counts of murder. As far as I know, the officers were not even reprimanded for their irresponsible conduct. Perhaps note should be made of the civil liability rule that “[a] police officer has a right to use whatever means necessary to make an arrest and unless he exceeds proper and rational bounds or acts in a negligent, careless or wanton manner, he is not liable for damages sustained, even by innocent parties ...” Wrubel v. State, 11 Misc.2d 878, 880, 174 N.Y.S.2d 687, 689 (1958) (emphasis added). See City of Miami v. Horne, 198 So.2d 10 (Fla.1967); Reed v. City of Winter Park, 253 So.2d 475 (Fla.App.1971); SDCL 32-26-15; SDCL 32-31-5.
I realize that in the presence of a violation of the law it is the duty of an officer to take steps to suppress the offense and apprehend the violator; however, this must be done within the limits of rationality. Here *108the acts of these officers has brought them to the very edge of this precipice of rationality and may even have plunged them over that edge.
The records of the Sioux Falls Police Department will reveal that this is not the first time that such chases have resulted in tragic and sometimes fatal accidents. Lacking any knowledge of a major crime having been committed, these officers were simply over-reacting to a minor traffic offense which could have been handled in a manner which did not endanger innocent people. The officers had a description of the auto and the license number; the arrest could have awaited another day. No great harm would have occurred if the appellant had completely evaded prosecution for this minor offense. Instead, these officers chose to increase the danger by engaging in a high-speed chase of appellant.
The original charge of murder was thrown out by the trial court. Nevertheless, while all of the news reports were fresh in the minds of prospective jurors, the case was brought on for trial within a couple of months before a judge that appellant had properly sought to disqualify. The trial court allowed the case to go forward on the first-degree manslaughter charges. As a result, appellant stands convicted of two counts of first-degree manslaughter and is serving a term of fifty years in the South Dakota Penitentiary. These charges were presented to the jury on the basis that the auto was being used as a dangerous weapon when driven at high speed in downtown Sioux Falls at 2 o’clock in the morning when appellant knew or should have known that such action was likely to cause serious injury or death. If this is true, it is even more apparent that trained police officers should have known that this chase was likely to result in serious injury or death. This young defendant’s mental state should have been weighed in the light of the contributions of these officers to his irrational and unlawful behavior. When this case is retried in the calm of the courtroom with outside influence at a minimum, I am hopeful that common sense will prevail and this appellant will receive a fair trial in the tradition of American justice.