Forgiving the Murderer
Jones Day? Maybe I Was Wrong

Scott v. Harris: De Novo Review In The Supremes?

Yesterday's Supreme Court decision in Scott v. Harris gives constitutional support to decisions by law enforcement officers to ram the cars of motorists engaged in flight. It also changes the norms for Supreme Court practice. The court essentially conducted de novo review of factual questions considered by both the District Court and the Eleventh Circuit Court of Appeals.

The facts of the case are simple: In March 2001, a Georgia dputy saw Victor Harris speeding. The deputy gave chase, at speeds sometimes in excess of 85 miles per hour over a 10 mile course. Other officers participated in the chase. At one point, the deputy radioed for permission to use stop the car by using the Precision Intervention Technique. He was given permission to "[g]o ahead and take him out." The officer rammed the back of the fleeing vehicle, causing the driver to crash. Mr. Harris is now a quadriplegic.

In a suit filed under 42 U.S.C. Section 1983, Mr. Harris claimed the deputy used excessive force. The defendants moved for summary judgment, and lost. The Eleventh Circuit heard an interlocutory appeal on qualified immunity, and the defendant again lost. Certiorari was granted limited to whether an officer "can, consistent with the Fourth Amendment, attempt to stop a fleeing motorists from continuing his public-endangering flight by ramming the motorist's car from behind?" The answer is now unequivocally "yes."

One of the oddest things about the rulings is that the majority engaged in de novo review of the underlying record. The chase was videotaped from within the defendant's cruiser. Both the District Court and Circuit court made factual findings about the chase. The Supreme Court disagreed with the Circuit after watching the tape for itself. As Justice Scalia notes: "The videotape quite clearly contradicts the version of the story told by respondent and adopted by the Court of Appeals." When chastised by Justice Stevens in dissent for this, Scalia invited the public at large to review the videotape, noting in a footnote that the tape can be found at the following site: http://www.supremecourtus.gov/opinions/video.scott_v_harris.rmvb.

Prior to this decision, it never occurred to me that the Supreme Court would engage in the finding of facts. What's become of remand for new factual determinations? What's more, why no hue and cry about this unseemly form of judicial activism?

The decision is frightening on substantive grounds as well. It seemingly ignores the state-created danger doctrine. It is elementary that a chase requires at least two components: a chaser and the chasee. This decision blurs that distinction and holds, in effect, that if a chase creates danger to others police can use what amounts to deadly force to end the chase. The wild rest returns: "Go ahead and run, sucker," the law enforcement officer drawls, as he removes his six-shooter from his holster. "I'll be watching."

I watched the video of the chase at the Georgetown Law Center's seminar on police misconduct this year. It is not a shocking chase. I've seen far worse. Scalia's histrionic rendition of it suggests he's been too far removed from fact-bound inquiry for far too long. Certainly, there is danger and there is risk, but the danger arises from the chase.

As the decision notes, Mr. Harris was traveling 73 miles per hour in a 55-mile-per-hour zone. That is not uncommon on the roadways. And it does not in and of itself create the risk of harm to others.

What created the risk of harm to others was the chase. Clearly, Harris was wrong to flee. It is a crime. But is the creation of "public endagering flight" really necessary here? Doesn't reasonableness require law enforcement officers to make intelligent decisions about risk? It does not strain reason to require officers to do what many local high-speed chase policies require -- disengage from a chase when it yields risk to third parties.

The Supreme Court has effectively held that it is reasonable for officers to use deadly force when trying to stop someone for speeding. If the speeder flees, chase. And if the chase creates danger, ram him off the road.

The decision is now law. Begin the body count and call tham Nino's Corpses.

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