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.
