High-speed chases and the Constitution: Argument 2/26/07
on Feb 25, 2007 at 7:05 am
High-speed chases by police are standard fare in movies and on television, but their status under the Constitution is not finally resolved. The Supreme Court has taken on that task in the case of a police “bumping” of a fleeing suspect’s car to stop it, resulting in a crash that left the driver paralyzed in both arms and both legs.
But, as is so often true in Supreme Court cases, the arguments in Scott v. Harris (05-1631), scheduled to begin at 11 a.m. Monday, could draw the Court into a host of issues of fact and law beyond a straightforward examination of Fourth Amendment principles about “seizure” by what is sometimes bureaucratically referred to as a “precision immobilization technique,” or “PIT maneuver.”
The Harris case reaches the Court as a “deadly force” case, with much argument in the briefs about whether high-speed police chases by their very nature are potentially “deadly” and thus should be used very sparingly — as, some briefs suggest, is the policy now in most police departments. The underlying Fourth Amendment inquiry boils down to this: if the practice is rare because it is so risky to public safety, does its use when there might be non-lethal alternatives make it “unreasonable” — especially when the chase is set off by a traffic violation?
The case has the potential for clarifying how a major Supreme Court precedent in 1985 on the use of “deadly force” by police in stopping fleeing suspects, Tennessee v. Garner, applies when the suspect is in a car, not on foot. In that case, the Court said that “it is not better that all felony suspects die than that they escape.” The Garner case, though, involved police killing of a fleeing suspect who was not armed. Scott v. Harris could test whether the situation is different when officers use an auto-ramming technique to stop a suspect racing down highways and through city streets at 100 miles an hour.
Before the Court could reach that or any other substantive issue, however, it must first decide that the Georgia deputy sheriff who appealed the case had a right to appeal to the 11th Circuit Court and to the Supreme Court, when disputed facts remained to be resolved by a jury. Attorneys for the injured suspect, Victor Harris, argue the jurisdictional point, as does the American Civil Liberties Union as an amicus.
But the Court, even if satisfied that it has jurisdiction, may also pause before resolving the Fourth Amendment reasonableness issue. Because this case also involves a claim by the deputy sheriff that he was entitled to legal immunity, the Court has been asked to fashion a new method for judging immunity claims by police and other public officers, with less emphasis on whether a constitutional violation occurred at all. That request has been pressed fervently by 28 states and Puerto Rico, as amicisupporting the deputy.
Arguing the case on Monday for Coweta County (Ga.) Deputy Sheriff Timothy Scott will be Philip W. Sarvin of Freeman Mathis & Gary in Atlanta. He will yield 10 minutes of his half-hour to Deputy Solicitor General Gregory G. Garre, arguing the federal government’s view that Scott did not violate the Fourth Amendment and, in any event, he is entitled to “qualified immunity.” Representing Victor Harris will be Craig T. Jones of Edmond & Jones in Atlanta.
The case arises out of a nighttime incident on March 29, 2001, near Peachtree City, Ga., when one deputy sheriff detected a driver going at 20 miles over the speed limit. The deputy, Clinton Reynolds, flashed his light to alert the driver, but the driver, 19-year-old Victor Harris, did not respond. Reynolds activated his cruiser’s blue lights, but that only led Harris to speed up, With the fleeing car racing at more than 100 miles an hour, Deputy Scott joined in the chase.
After the pursuit entered the downtown area, with several police cars in the chase, and after Harris’ car collided with a cruiser driven by Deputy Timothy Scott, Scott obtained approval from his supervisor to ram Harris’ car from the rear. Scott later said the maneuver was carried out when no other motorists appeared to be in the immediate area. After being bumped, Harris lost control of his car, and it ran off the road, crashing and resulting in his severe injuries.
Harris sued with a Fourth Amendment “excessive force” claim, and Scott claimed qualified immunity. A federal District Court found that the use of force to stop the vehicle was out of proportion to Harris’ speeding offense, refused to rule summarily in Scott’s favor, and rejected his immunity claim.
The Eleventh Circuit Court agreed, saying that ramming Harris’ vehicle “under the facts alleged here, if believed by a jury, would violate Harris’ constitutional right to be free from excessive force during a seizure.” The Circuit Court rejected the qualified immunity claim, finding that it was clearly established law at the time of the incident that police use of deadly force was constitutionally forbidden when a situation requires “less-than-lethal force” — such as, here, the chance for a later arrest. The nature of the underlying crime — here, speeding — also is a key factor, the Circuit Court said.
In deciding first whether a constitutional violation had occurred, and then weighing whether it was clearly established at the time of the incident, thus barring immunity for the deputy sheriff, the Circuit Court was following the two-step analysis the Supreme Court has said is mandatory in immunity cases. (The Court made that approach necessary in its 2001 decision in Saucier v. Katz.)
That two-step procedure has been criticized by Justices who make up a clear majority of the Court, and by others, who argue that it leads to unnecessary constitutional declarations by the courts, such declarations are often based upon incomplete factual records, and they may be insulated from review on appeal. In this week’s case in the Court, 28 states and Puerto Rico have urged the Court to lift the mandatory requirement of this procedure, and substitute a system where, more often, the first and only inquiry will be whether a claimed constitutional right did exist at the time of the incident. That would avoid the necessity of starting with a conclusive finding on the merits of a constitutional violation before proceeding to the step of evaluating whether any asserted right existed at the time of the incident involved.
On the Fourth Amendment issue itself, the deputy sheriff, supported by the Justice Department and the states and Puerto Rico, argues that high-speed chases are a necessary police tactic, and they should be evaluated more according to the kind of risk that the suspect poses. “A fleeing car can be a deadly weapon,” Scott’s brief says, “and an officer who acts reasonably to minimize the dangers of death or injury satifies the Fourth Amendment.” Courts must take into account the whole situation, balancing the risks of acting and failing to act.
The Justice Department implies that the Garner decision should not be controlling, because that involved police use of a gun. Bumping a car from the rear, even at high speed, it argues, “is not the equivalent to pointing a gun at the suspect and shooting him. An accurate gunshot is certain to cause serious injury or death to the suspect, whereas bumping the suspect’s car from behind is not.”
Harris’ brief contends, on the merits, that a finding that excessive force was not used against him “would immunize from constitutional liability all law enforcement officers who knowingly apply deadly force in order to seize a fleeing traffic offender.” His appeal has the support of the National Association of Criminal Defense Lawyers and a group called the National Police Accountability Project. The NACDL brief says that “the policies of almost every American law enforcement agency, state and federal, prohibit the use of deadly force in these circumstances.”
The Court is expected to decide the case before recessing for the summer in late June.
