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SEE ALSO:
Scott v. Harris Decision: Vehicle Pursuit Implications
Scott v. Harris: Oral Arguments prior to Supreme Court decision
SURVEY RESULTS: Vehicle Pursuit and Pursuit Tactics
In Harris v. Coweta County, the United States Court of Appeal for the
11th Circuit analyzed a ramming during a police pursuit under deadly force
principles and refused to grant the officer summary judgment or qualified
immunity. The supervisor, who authorized Deputy Scott to perform the Precision
Immobilization Technique during the pursuit was granted summary judgment
and dismissed from the case because, while he authorized the P.I.T. maneuver,
the deputy did not P.I.T. Harris’ vehicle but instead rammed the
vehicle. The United States Supreme Court has decided to
consider the decision of the 11th Circuit Court of Appeal in this case.
The
United States Supreme Court will consider two questions:
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Whether a law enforcement officer’s conduct is objectively reasonable
under the 4th Amendment when the officer makes a split-second decision
to terminate a high-speed pursuit by bumping the fleeing suspect’s
vehicle with his push bumper because the suspect has
demonstrated that he would continue to drive in a reckless and dangerous
manner that put
the lives of innocent persons at a serious risk of death.
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Whether at the time of the incident the law was clearly
established when neither this Court [the Supreme Court]
nor any circuit, including
the Eleventh Circuit, had ruled the Fourth Amendment
is violated when a law enforcement officer used deadly
force to protect the
lives of innocent
persons from the risk of dangerous and reckless vehicular
flight.
If the United States Supreme Court rules that the officer’s
conduct was objectively reasonable under question 1 above, the officer
will get
summary judgment and the Court will have authorized this
type of force in vehicular pursuit cases.
If the Court finds that the
officer’s conduct was not objectively
reasonable [answers no to question 1], the Court will then
consider whether the law was clearly established, such
that an officer would have notice
as to whether or not ramming would be appropriate in this
circumstance. If the answer is that law was not clearly
established then the officer
will be granted qualified immunity, in other word, the
ramming was unconstitutional but the law had not made it
clear to a reasonable officer that it was
unconstitutional.
Under this second analysis, all future
cases will be held to the clearly established standard
announced by the Court, but this officer will not
be liable because he did not know that it was unreasonable.
If the Court determines that ramming the car was unconstitutional
(no to question 1) and that the law was clearly established
with respect to this type of force against fleeing vehicles,
then Deputy Scott will be
denied summary judgment and qualified immunity and the
case will go to trial where a jury will ultimately decide
whether Deputy Scott’s
actions were reasonable.
At the outset, it should be noted
that whenever a court is considering whether or not an
officer is entitled to summary judgment and qualified
immunity the court views the facts in the light most
favorable to the person bringing the lawsuit, in this case
Harris. Thus, the
facts as outlined
by the court may not be the facts that the officer, in
this case Deputy Scott, would agree with. Ultimately
only a jury looks at both sides of
the story. When an officer is seeking a summary judgment
and qualified immunity, they must live with the facts
viewed in the light most-favorable
to the person who is suing the officer.
Summary of Facts:
Victor Harris was clocked speeding
by a deputy while driving a vehicle that was actively
registered to him. When the deputy attempted to pull
Harris over, Harris fled. The result was a six-minute
pursuit that traveled nine miles. During the pursuit which
reached speeds of
90 miles per hour,
Harris crossed the center line, placing other motorists
at risk and passed through two red lights. The court
noted that during the pursuit Harris
maintained control of his vehicle and even used his turn
signals during his movements while being pursued. At
one point he collided with a police
cruiser that attempted to block his path in a parking lot.
During
the pursuit, Deputy Scott sought a supervisor’s permission
to use the PIT maneuver against Harris to stop the chase.
The court noted that Scott had not been trained in the Precision Immobilization
Technique
at the time. A supervisor authorized Scott to “take him out.” At
that point Scott determined that he was traveling too fast
to use the PIT maneuver so he decided to ram Harris straight
on instead. Harris was
rendered a quadriplegic as a result of the crash caused
by the ramming.
In describing the P.I.T. maneuver the court
adopted various descriptive definitions that may not
be consistent with the generally-accepted practices
in law enforcement.
The court asserted: “PIT--defined by the district
court as "a
driving technique designed to stop a fleeing motorist safely
and quickly by hitting the fleeing car at a specific point on the vehicle,
which throws
the car into a spin and brings it to a stop." This definition assumes
that the maneuver will be executed at lower speeds by properly
trained officers, and therefore can terminate a flight "safely." See,
e.g., Geoffrey Alpert's Expert Report, R. 24 at 5 (stating
that the PIT requires a set of defined circumstances in order for it to
be performed
safely (i.e., at low speeds on wide straight-aways, on
dry pavement by a properly trained driver)); National Law Enforcement
and Corrections
Technology Center Bulletin, U.S. Department of Justice,
October 1996, at 4-5 (stating that the PIT "is not applicable in
every situation, the key to its effective use is to carefully choose a
favorable spot before
attempting PIT and to first consider the possible effects
on other traffic and pedestrians"); National San Diego Police Department
Use of Force Task Force Recommendations, Executive Summary at 37 ("Utilized
at speeds of 35 mph or less, the PIT maneuver improves officer and public
safety by removing the threat of pursuit as quickly and
safely as possible.").” [It
should be noted that the definition of the P.I.T. maneuver
adopted by the 11th Circuit is not consistent with agency
policy and training on
P.I.T. since many agencies do not put a speed-cap on the
P.I.T. maneuver.]
In adopting this descriptive framework for
the P.I.T. maneuver, the court dismissed the supervisor
from the lawsuit. Finding, as reported by Deputy
Scott that the P.I.T. maneuver was not done in this case,
the court concluded that the maneuver authorized by the
supervisor, a P.I.T. was not carried
out. Since the Deputy rammed, rather than employing the
P.I.T. the supervisor did not have liability.
It should be
noted at the outset that the deputy stopped Harris’ movement
by a means intentionally applied, thus, there was a seizure
for 4th Amendment purposes. In reviewing the officer’s conduct
under the 4th Amendment, the court examined whether it was reasonable
to ram Harris at a high rate
of speed under the circumstances that the deputy faced.
In analyzing the facts here the court noted that deadly force is “force
that creates a substantial risk of causing death or serious bodily
injury…Like
other instrumentalities, the use of an automobile cannot
be construed in every circumstance as deadly force. However, an automobile,
like a
gun, can be used deliberately to cause death or serious
bodily injury.” The
court concluded that a jury could decide that the ramming
here could constitute deadly force.
The court identified the
deadly force standards from Tennessee v. Garner, 471 U.S.
1 (1985): “(1) where the officer has probable cause to
believe that the suspect poses a threat of serious physical
harm either to the officer or to others, or if the suspect threatens
the officer with
a weapon or there is probable cause to believe that he
had committed a crime involving the infliction or threatened infliction
of serious physical
harm and (2) if deadly force is necessary to prevent escape
and (3) and if, where feasible, some warning has been given.” It
should be noted that most police agencies, through policy,
require that
the subject also poses some imminent or immediate danger
to others by their escape. This
is not a constitutional requirement, but has become a generally
accepted practice in law enforcement.
In applying the deadly
force standard to this case, the court recognized that
ramming a vehicle at high speed may cause serious bodily harm or
death, “Moreover, none of the limited circumstances identified in
Garner that might render this use of deadly force constitutional are present
here. Scott did not have probable cause to believe that Harris had committed
a crime involving the infliction or threatened infliction or serious physical
harm, nor did Harris, prior to the chase, pose an imminent threat of serious
physical harm to Scott or others… None of the antecedent conditions
for the use of deadly force existed in this case. Harris’ infraction
was speeding (73 mph in a 55 mph zone). There were no warrants out for
his arrest for anything, much less for the requisite crime involving the
infliction or threatened infliction of serious physical harm…Indeed
neither Scott nor Fenninger [the supervisor] had any idea why Harris was
being pursued. The use of deadly force is not reasonable in a high-speed
chase based only on speeding and evading arrest…A high-speed chase
of a suspect fleeing after a traffic infraction does not
amount to the substantial threat of imminent physical harm that Garner
requires before
deadly force can be used. ”
The United States Court of Appeal for the 11th Circuit
did not consider whether actions by Harris during the pursuit
enhanced the danger to public
thus justifying a heightened law enforcement response.
Additionally, many law enforcement agencies, through policy
and training, direct officers
to consider the subject’s additional criminal actions during the
pursuit in the evaluation process as a consideration justifying
the continuation of the pursuit.
The court of appeal also examined
whether or not Harris’ continued
flight posed a danger of serious bodily harm or death to
other motorists such that deadly force would be justified to neutralize
the threat to
innocent motorists. The court rejected an argument that
Harris posed this type of threat in stating: “We reject the defendants'
argument that Harris' driving must, as a matter of law, be considered
sufficiently reckless
to give Scott probable cause to believe that he posed a
substantial threat of imminent physical harm to motorists and pedestrians.
This is a disputed
issue to be resolved by a jury. As noted by the district
court judge, taking the facts from the non-movant's viewpoint, Harris
remained in control
of his vehicle, slowed for turns and intersections, and
typically used his indicators for turns. He did not run any motorists
of the road…Nor
was he a threat to pedestrians in the shopping center parking
lot, which was free from pedestrian and vehicular traffic as the center
was closed.
Significantly, by the time the parties were back on the
highway and Scott rammed Harris, the motorway had been cleared of motorists
and pedestrians
allegedly because of police blockades of the nearby intersections.” The
court concluded, by looking at the facts in the light most-favorable
to Harris, that Harris was not a serious threat to other
motorists. As such,
the court denied Deputy Scott summary judgment and qualified
immunity setting up the appeal to the United States Supreme
Court.
The issue presently before the Supreme Court involving
the concept of “ramming” is
addressed in law enforcement agency policies around the
country. The majority of these policies limit the use of
ramming to those circumstances where
deadly force would be justified. The question is, does
the serious danger created by the fleeing motorist justify
the use of deadly force to eliminate
the threat? An interesting note is that agencies that address
ramming generally allow it in the deadly force situation,
while those that prohibit
ramming do so citing the damage which occurs to police
vehicle including the possibility that the air-bag will
deploy rendering the police vehicle
incapable of continuing the pursuit. Additionally, while
agencies allowing the P.I.T. maneuver are somewhat limited
due to the requirement of training
that accompanies the use of this technique, more agencies
allow ramming yet almost none mention training for such
a tactic.
Scott v. Harris, may simply be the United States Supreme
Court’s
opportunity to answer a question that was left open in
a previous case. The question is can an officer constitutionally
use deadly force to stop
a motorist who is fleeing from the officer, where the flight
itself creates the potential danger of serious bodily harm
or death to others in the
area of the pursuit.
In Brosseau v.Haugen the United States
Supreme Court examined a case involving the use of deadly
force by Officer Brosseau of the Puyallup,
Washington Police Department who shot Kenneth Haugen
in the back as he fled in his vehicle from the police.
The
concept of qualified immunity involves shielding a police
officer from a lawsuit where the officer’s actions do not violate
clearly established federal rights. In other words, where the law
is unclear on a particular course of conduct an officer
does not have notice that the
conduct is wrong and is immune from suit.
In analyzing whether
an officer is entitled to qualified immunity, a court undertakes
a two-step process. The first step asks the question:
Did the officer’s conduct violate the constitution? If the answer
to this question is no, then the officer is not liable and the case is
over. During this analysis the court looks at all the facts in the light
most favorable to the person suing the police officer. If the answer to
this first question is yes, the officer’s conduct did violate some
right then the court proceeds to a second question. The second question
is: Was the right so clearly established that a reasonable police officer
would know that his or her conduct violated the right. If the answer to
this question is “no” the officer again escapes liability
because he or she did not know that the conduct in question
was bad. Only if the answer is that a reasonable police
officer was on notice that the
conduct was bad, could the lawsuit proceed. [This two-step
process was outlined by the United States Supreme Court
in Saucier v. Katz, 533 U.S.
194 (2001).]
In Brosseau v. Haugen, the United States Court
of Appeal for the 9th Circuit had ruled that Officer
Brosseau was not entitled to qualified
immunity in her use of deadly force against Kenneth Haugen.
Officer
Brosseau began investigating Haugen as the result of
a complaint filed by Glen Tamburello, a former crime partner
of Haugen, who reported
that Haugen had stolen tools from him. During her investigation,
Officer Brosseau learned that Haugen had felony warrants
for his arrest.
The following day, Tamburello confronted
Haugen in Haugen’s driveway.
The confrontation escalated to a full-blown disturbance which prompted
the response of the police, including Officer Brosseau. When Officer Brosseau
arrived, Haugen fled on foot. While officers searched for Haugen they “instructed
Tamburello and Atwood to remain in Tamburello’s pickup. They instructed
Deanna Nocera, Haugen’s girlfriend who was also present with her
3-year-old daughter, to remain in her small car with her daughter. Tamburello’s
pickup was parked in the street in front of the driveway; Nocera’s
small car was parked in the driveway in front of and facing the Jeep [Haugen’s
Jeep]; and the Jeep was in the driveway facing Nocera’s car and
angled somewhat to the left. The Jeep was parked 4 feet away from Nocera’s
car and 20 to 30 feet away from Tamburello’s pickup.”[The
detailed analysis of the vehicles positions is important to the Court’s
decision as to potential threat to Nocera and her child
as well as Tamburello and Atwood when Haugen attempted
to flee in the Jeep]
At some point Haugen was spotted and Officer Brosseau
pursued him on
foot to his Jeep. Brosseau believed that Haugen was running
to the Jeep to retrieve a weapon. Haugen entered the Jeep
and locked the door. He
then began rummaging for his keys. Officer Brosseau used
her handgun to smash the driver’s window and attempted to reach in and stop Haugen
striking Haugen with her gun in the process. Haugen was able to start
the car. “As the Jeep started or shortly after it began to move,
Brosseau jumped back and to the left. She fired one shot through the rear
driver’s side window at a forward angle, hitting Haugen in the back.
She later explained that she shot Haugen because she was ‘fearful
for the other officers on foot who she believed were in the immediate
area and for the occupied vehicles [Nocera and her child as well as Tamburello
and Atwood] in Haugen’s path and for any other citizens who might
be in the area.’” Haugen continued to flee but stopped after
realizing he had been shot. Haugen pled to a felony eluding charge which
included the element of “a wanton or willful disregard for the lives…of
others.” Haugen filed a lawsuit based upon the shooting.
In analyzing
Brosseau’s qualified immunity claim, the United States
Court of Appeal for the 9th Circuit concluded on the first question of
qualified immunity [Did the officers conduct violate a federally protected
right?] that Officer Brosseau’s use of deadly force violated a federally
protected right. In its review, the United States Supreme Court asserted “We
express no view as to the correctness of the Court of Appeal’s decision
on the constitutional question itself. We believe that, however that question
is decided, the Court of Appeals was wrong on the issue of qualified immunity.” [The
second question of the analysis-Was the right so clearly
established that a reasonable officer know that the conduct violated a
federally protected
right.”
The Court in reviewing lower court cases on this issue
pointed out that some cases had found no violation of the
4th Amendment where
fleeing motorists
who posed a threat had been shot as well as cases where
summary judgment and qualified immunity had been denied
where officers shot the fleeing
motorists. The Court concluded that these cases demonstrate
that the use of deadly force against a fleeing motorist
requires a fact-driven analysis
and that the law in this area was not clearly established
thus Officer Brosseau should have been granted qualified
immunity.
Citations:
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Harris v. Coweta County, 433 F.3d 807 (11th
Cir. en banc 2005), cert. granted U.S. Supreme Court
Scott v. Harris, 2006 U.S. LEXIS 8010 (U.S.,
Oct. 27, 2006)
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See, Boveri v. Town of Saugas, 113 F. 3d 4
(1st Cir. Mass. 1997) (“To
be sure, as the chase progressed, the Honda’s wild driving plainly
created an escalating risk of harm to bystanders—but the officers’ continuation
of the pursuit must be judged against the exigencies of the situation
that had developed. The law enforcement interest in apprehending the Honda
had grown, as had the danger to the public inherent in leaving a reckless
(potentially inebriated) driver on the road. ”)
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See
e.g. Jefferson County Colorado (CALEA ACCREDITED) Policy
752 Vehicular Pursuit: Directing officers to consider: “Any actions the suspect(s)
may have taken since the inception of the pursuit. This includes any ‘new’ violations
of criminal statutes e.g. felony eluding. ”
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Brosseau
v.Haugen, 543 U.S.194 (2004),
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