Justice Scalia And the Whole Court Break Rule #1 of Appellate Review

Scott v. Harris

When Deputy Scott tried to pull someone over for going 77 in a 55 the driver sped off and initiated a high-speed chase. Lower courts ruled that the case for excessive force could go forward partly because Scott’s actions could constitute “deadly force.” This case addresses whether it is ever reasonable for officers to put a fleeing driver in serious risk of injury or death in order to bring such a chase to an end.

The initial question in a case such as this, where the officer asserts “qualified immunity” – essentially ‘I was just doing my job’ - is whether the facts, taken in the light most favorable to the party asserting the injury, show a violation of a constitutional right. Next is whether that right was clearly established at the time. While the facts must be those as alleged by the person asserting a violation, and all inferences taken in their benefit, and while there has been no factual finding yet (the case is still in summary judgment) there is a recording of the chase that clearly contradicts Respondant’s assertions that there was little or no danger to bystanders. Since there is no “genuine” dispute over the facts gleaned from the video tape. “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgement.” “The Court of Appeals should not have relied on [the facts as recounted by the party asserting a violation]; it should have viewed the facts in the light depicted in the videotape.”

A Fourth Amendment seizure occurs when there is a governmental termination of freedom of movement through means intentionally applied. Respondent argues that before “deadly force” can be used certain preconditions must be met: (1) the suspect must have posed an immediate threat of serious physical harm to the officers or others; (2) deadly force must have been necessary to prevent escape; and (3) where feasible, the officer must have given the suspect some warning (Garner). Justice Scalia notes that the second prong was not about necessity, but rather about the need to prevent serious harm, and the need to prevent escape was just an example. A police car ramming a fleeing car is less deadly than shooting a fleeing suspect with a gun, and a fleeing suspect in a car poses a substantially greater risk than one on foot, as in Garner.

Now it is a straightforward balancing test. The officer’s actions posed a risk, but not a “certainty” of death (as in Garner). “So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability.” The police were not required to take the risk of ceasing the chase in the interests of safety – “Respondent might have been just as likely to respond by continuing to drive recklessly as by slowing down and wiping his brow.” Anyway, such a requirement would be, most decidedly, bad policy.

Justice Ginsburg, concurring, joins the opinion but notes that this is not a per-se rule, and that Justice Bryer apparently agrees that the constitutional question here warrants an answer.
Justice Bryer, concurring, joins the opinion but wants the world to know that after having watched the video his mind was made up that no reasonable juror could afind that Officer Timothy Scott acted in violation of the Constitution. Justice Bryer also highlights the “fact-specific” nature of the case, and that this suggests that courts should not be required to address “constitutional questions” before the “qualified immunity question. It is relatively new, subject to much criticism, a waste of resources, and makes bad law. Finally, Justice Bryer disagrees with the per-se rule that “[a] police officer attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

Justice Stevens, dissenting, alone, takes issue with the majority’s “de novo” review of the video tape. “[T]he tape actually confirms, rather than contradicts, the lower courts’ appraisal of the factual questions at issue. More importantly, it surely does not provide a principled basis for depriving the respondent of his right to have a jury evaluate the question whether the officers’ decision to use deadly force to bring the chase to an end was reasonable.” Justice Stevens then recounts what the video portrays in a way that a reasonable juror could conclude that Respondent’s version of the facts was right. Moreover, it might have been more reasonable to discontinue the chase and pick up the driver after running the license plate – another question the jury should have addressed – especially since many police departments have adopted just such a rule. “If two groups of judges” (ie: the judges on the court of appeals) “can disagree so vehemently about the nature of the pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a reasonable juror could disagree with the Court’s characterization of events.”

The Court today, Justice Stevens argues, sets forth a per se rule that presumes its own version of the facts: “[A] police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”