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Special Note: on Monday, February 26th,
Jack Ryan - Co-Director of LLRMI, attended the oral arguments
for Scott v. Harris
at the United States Supreme Court. This
case is one that all of law enforcement should keep an
eye on due to its impact on policy and training in respect
to pursuits and use of force.
The materials here are strictly
the observations and interpretations of the author based
upon attendance at the oral argument.
The actual decision in this case will be rendered by
the Court sometime before the 2006-2007 term expires in
June.
By Jack Ryan
On Monday February 26, 2007 the United States Supreme
Court heard oral argument in Scott v. Harris, a case stemming
from a high-speed pursuit in Coweta County Georgia. Harris,
the motorist was speeding through Coweta County which drew
the attention of law enforcement. Officers attempted to
stop Harris, at which point he fled at high-speed. Deputy
Scott of the Coweta County Sheriff’s Office joined
the pursuit. Deputy Scott’s involvement in the pursuit
was captured on his mobile video recorder. The pursuit
ended when Deputy Scott intentionally bumped Harris’s
vehicle, while traveling at approximately ninety-miles
per hour, causing the Harris vehicle to crash. Mr. Harris
was rendered a quadriplegic as a result of the crash.
Mr.
Harris filed a lawsuit against Deputy Scott which alleges
that Scott’s “ramming” of his
vehicle constituted an unreasonable seizure under the Fourth
Amendment. Prior to trial, Deputy Scott sought summary
judgment and qualified immunity from the lower courts.
Essentially this means that Deputy Scott has argued that
it is not unconstitutional to ram the fleeing motorist
since allowing the motorist to continue their flight would
pose a danger of serious bodily harm or death to other
motorists. If the courts agree that this ramming was not
unconstitutional then Scott would be entitled to summary
judgment, thus ending the case. If the courts find that
Scott’s action were unconstitutional, Scott may still
avoid liability by arguing that the law with respect to
the use of deadly force against a fleeing motorist who
is creating a serious danger to others by his flight, is
not clearly established, thus Scott did not know his actions
were unconstitutional. The United States Court of Appeals
for the 11th Circuit denied Deputy Scott’s motions
for summary judgment and qualified immunity which led to
this appeal.
The oral argument was extremely lively,
with the Justices interrupting the attorneys with a flurry
of
questions that
seemed to narrow the case to some basic issues.
The most
significant issues seems to be: At what point does a
fleeing motorist create such a danger to other motorists,
by their flight, that law enforcement could use deadly
force tactics to seize/stop the suspect?
Deputy Scott’s attorney argued that the 90 mph bumping
or ramming was not deadly force. Based upon a flurry of
questions, it seemed apparent that several of the Justices
were not convinced. Justice Stevens, asked several questions
regarding whether it would be reasonable for an officer
to believe that he or she could make contact with a vehicle
at 90 mph and not cause a serious crash. Stevens followed
this up by asking Scott’s lawyers if they were arguing
that deadly force could be used to stop any fleeing motorist.
Stevens was not alone, Justice Souter also wanted to know
if it was reasonable for Scott to believe that a 90 mph
bump is not deadly force. Justice Scalia also questioned
whether any reasonable officer would believe that the 90
mph contact was not deadly force. This seemed to be Deputy
Scott’s most difficult argument, but based upon what
followed, the Court appeared to be willing to consider
the use of deadly force in some pursuits.
Mr. Harris’ attorneys argued that deadly force would
only be reasonable if the requirements of Tennessee v.
Garner had been met. Garner was the 1985 case involving
a challenge to the Tennessee law that allowed police to
use deadly force to stop a fleeing felon. Fifteen-year
old Garner, who fled from a burglary at an unoccupied residence
was shot and killed by officers that had responded to this
crime in progress. Harris’ attorney argued that police
would only be able to use deadly force if Mr. Harris had
presented the officers with a deadly threat or he was fleeing
from a violent felony involving the infliction or threatened
infliction of serious bodily harm or death. Under Garner
a warning is required where practical and reasonable.
The
questions put forth by members of the Court pointed out
that Garner dealt with when police could use deadly
force to prevent the escape of a fleeing felon and did
not deal with the police trying to stop a fleeing motorist
whose continued flight posed a serious threat to other
motorists. It seems that this is an area, where a clear
decision by the Court will provide law enforcement with
an additional rule on when it is objectively reasonable
to use deadly force.
Mr. Harris’ attorney also argued that
the United States Court of Appeals for the 11th Circuit
has determined
that Mr. Harris was not a danger to other motorists since
there were few motorists in the area, the shopping mall
that the pursuit passed through was closed, Harris was
using his directional to signal turns and there were not
pedestrians in the area. It was argued that the Court was
bound by the lower court’s finding of facts. This
was one of plaintiff’s most difficult arguments in
that the Justices took turns commenting on their review
of the mobile video recording. Each of the Justices commented
on just how dangerous Mr. Harris flight was, based on their
own view of the tape. Justice Scalia commented that the
tape was the “scariest” chase he had seen since
the “French Connection.” Justice Ginsburg commented
that the chase was “fraught with danger.” Justice
Souter asked: How could a jury find that Mr. Harris did
not pose a substantial risk to other motorist? Chief Justice
Roberts, Justice Alito, and Justice Breyer also made reference
to Mr. Harris’ conduct as observed on the tape as
exhibiting conclusive evidence that he created a substantial
risk to other motorists on the road.
It was also argued
that police could have simply discontinued the pursuit.
It was argued that such a discontinuation
would have led Mr. Harris to slow down. Mr. Harris’ attorney
argued that “experience” establishes that when
police stop pursuing bad guys slow down. This was a reference
to one speculative piece of research, the surveying of
a small group of prisoners who had been pursued by police.
These convicted prisoners indicated they would have slowed
down if police had stopped chasing them. Justice Scalia
took issue with this research, questioning what the rule
should be with respect to pursuits. Should police be required
to stop chasing at a certain speed? Justice Scalia also
wanted to know whether the researcher drew any conclusions
with respect to a rule which required police to stop pursuing
at a certain speed. He suggested that perhaps a rule on
this issue would be an incentive to suspects to flee.
Justice
Kennedy raised the catch-22 that law enforcement may
be in should they decide to discontinue the pursuit
of a fleeing motorist who presents a threat to other
motorists by this conduct. Justice Kennedy asked whether
the laws
of some states may allow the officer to be sued if the
officer were to discontinue the pursuit and the suspect
crashes further down the road and hurts someone.
Mr.
Harris’ attorney conceded that it was the discretion
of an officer whether to continue a chase or terminate
the chase and that the choice was the officers. He acknowledged
that an officer would have no “duty” to discontinue
a pursuit. This concession, coupled with the argument that
a continued chase presents a danger to other motorists
seemed to open the door to a finding that the actions of
Scott were reasonable.
An overview of the argument suggests
several points. It seems apparent that the Court considers
contact with a
vehicle at high-speed, during a pursuit, as deadly force
since such contact is likely to lead to a crash. A crash
at high-speed is likely to lead to serious bodily harm
or death and thus, constitutes deadly force. There is
no question, that this case is a use of force case that
creates
an opportunity for the Court to provide clearer guidance
to officers on the use of deadly force.
That leads to
the question on whether it is reasonable for the law
enforcement to use a deadly force tactic to
stop a vehicle when the officer has a reasonable belief
that the suspect, by their flight, poses a threat of
serious bodily harm or death to other motorists. This is
a question
that was not addressed in Tennessee v. Garner and thus
could give law enforcement its first deadly force decision
in more than two decades.
Based upon several questions,
it seems doubtful that the Court would place any limitations
on when police could
pursue a fleeing motorist. The questions in this area
seemed to indicate an unwillingness to limit chases by
constitutional
rule due to the potential that such a rule would create
an incentive for suspects to flee from the police.
There
are also some procedural issues in the case that may limit
the effect of this decision. One key issue is
whether the Supreme Court is bound by the factual findings
of the lower court and thus is precluded from using their
own view of the tape on the issue of Mr. Harris’ dangerousness
to other motorists.
The decision in this case will be made
before the Court concludes its term in June and is an
important one for
law enforcement to keep an eye on. The written decision
should prompt law enforcement to review Use of Force
and Pursuit policy and training in light of the decision.
Special Thanks: Jack Ryan and the Legal & Liability
Risk Management Institute wants to thank Chief Lou Dekmar
of the LaGrange, Georgia Police Department for his invitation
to attend this oral argument. The Georgia Association of
Chiefs’ of Police filed an Amicus brief on this case
that provides significant research on the Precision Immobilization
Technique (“PIT”) as distinguished from the
contact that occurred in this case.
Jack Ryan
Co-Director/Legal Counsel
Legal & Liability Risk Management Institute
http://www.llrmi.com/
(800) 365-0119
jackryan2@cox.net
LLRMI is a division of the Public Agency Training Council
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