Scott v. Harris seemed to settle the liability question with respect to the United States Constitution. Scott held that an officer’s attempt to stop a motorist who posed a threat to the public by his or her high speed flight did not violate the Fourth Amendment, even if the officer’s attempt placed the motorist in danger of serious bodily harm or death. At the time Scott was decided we acknowledged that the basic elements of this Fourth Amendment included posing a threat to the public and high speed flight. While this seemed to end Federal Liability for high speed pursuits where officers used force to stop the subject, a recent decision from the United States Court of Appeals for the 6th Circuit establishes that, at least in that Circuit, there can still be liability for tactics during a pursuit that is not a high speed pursuit and where the court finds there was no public safety danger.
In Walker v. Davis, [i] the United States Court of Appeals for the 6th Circuit examined the actions of Deputy Davis of the Allen County Kentucky Sheriff’s Office during a pursuit. It is noted that since the case was being considered on motions for summary judgment and qualified immunity the court viewed the facts in the light most favorable to the Estate of Mr. Germany, the person killed in the pursuit. The deputy maintained that the collision with the motorcycle was an accident but even if considered by the court to be intentional, it still would not have violated the Fourth Amendment under existing U.S. Supreme Court precedent.
The court described the pursuit and actions of the deputy as follows:
Shortly after midnight in rural Kentucky, a police officer clocked Germany riding his motorcycle at 70 miles per hour in a 55 miles per hour zone. That officer (who is not a defendant here) tried to pull over Germany for speeding, but Germany refused to stop. Deputy Davis then heard about the pursuit over the radio. As Germany approached Davis’s location, Davis blocked the road with his cruiser. Germany maneuvered around him cleanly. Davis then gave chase. The entire pursuit lasted about five minutes and took place on empty stretches of highway. Germany never went above 60 miles per hour during the chase itself. He ran one red light.
Germany eventually turned off the road and cut across a muddy field. Davis followed close behind in his cruiser. According to the Estate’s reconstruction expert—who analyzed, among other things, the location of paint transfers between the two vehicles—Davis then intentionally rammed Germany’s motorcycle. Germany was thrown from the motorcycle and dragged underneath the cruiser, crushing him to death.
In defending the deputy, attorneys argued for the application of the holding from the United States Supreme Court in Scott v. Harris.
In rejecting Deputy Davis’ argument for dismissal of the case on summary judgment and qualified immunity grounds the court held:
It has been settled law for a generation that, under the Fourth Amendment, “[w]here a suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” Tennessee v. Garner, 471 U.S. 1, 11, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985). Here, Germany posed no immediate threat to anyone as he rode his motorcycle across an empty field in the middle of the night in rural Kentucky. That fact, among others, renders this case patently distinguishable from Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 167 L. Ed. 2d 686 (2007), in which Harris had led the police on a “Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury.” Id. at 380. The chase here was a sleeper by comparison.
Nor does it matter that, at the time of Davis’s actions, there were few, if any, reported cases in which police cruisers intentionally rammed motorcycles. It is only common sense—and obviously so—that intentionally ramming a motorcycle with a police cruiser involves the application of potentially deadly force. This case is thus governed by the rule that “general statements of the law are capable of giving clear and fair warning to officers even where the very action in question has not previously been held unlawful.” Smith v. Cupp, 430 F.3d 766, 776-77 (6th Cir. 2005) (internal marks omitted).
Whether, in fact, the collision here was intentional is for a jury to decide. Davis insists it was not. But the facts, as we must view them, make out a violation of Germany’s clearly established constitutional rights.
Thus, the United States Court of Appeals for the 6th Circuit has found that there may be liability for a use of force during a pursuit if the facts and conduct during the pursuit are distinguishable from Scott v. Harris. Law enforcement should note that the distinguishing aspects of this pursuit were two-fold. First, it was not high-speed and second, there was no danger posed to the public under the facts when viewed in the light most favorable to the plaintiff.
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Note: Court holdings can vary significantly between jurisdictions. As such, it is advisable to seek the advice of a local prosecutor or legal advisor regarding questions on specific cases. This article is not intended to constitute legal advice on a specific case.
CITATIONS:
[i] Walker v. Davis, 649 F 3d 502 (6th Cir. 2011).
