The U.S. Supreme Court Condones Paralysis of a Speeding Driver: Taking the "Reasonable" Out Of "Reasonable Seizures"

By SHERRY F. COLB

Monday, May. 14, 2007

Recently, in Scott v. Harris, the U.S. Supreme Court, for the first time, squarely confronted the Fourth Amendment implications of dangerous, high-speed vehicular chases.

The driver in the case, Victor Harris, had failed to pull over when police flashed their lights. Instead, he fled, and police pursued, at faster and faster speeds. When there appeared to be no other way to apprehend Harris, Officer Timothy Scott rammed into the suspect's car and thereby caused a crash that rendered Harris quadriplegic.

Harris subsequently sued Scott under Section 1983, the federal statute that allows plaintiffs to seek money damages for violations of their rights under the Constitution and federal statutes. Harris claimed that Scott had used excessive force in violation of the Fourth Amendment. On an interlocutory appeal by the government, however, the Supreme Court held that the suit should have been dismissed on summary judgment. The Court ruled, by an 8-1 majority, that Timothy Scott acted "reasonably" under the circumstances.

Though the High Court rightly concluded that high-speed chases are extremely dangerous, its reaction to that conclusion placed no responsibility at the feet of the police. That the decision was nearly unanimous signals a dispiriting consensus on the legitimacy of state violence.

The Speeding Vehicle

As Justice Scalia acknowledged in his opinion for the Court, "([P]rior to the car chase), [the nineteen-year-old driver, Victor Harris] had committed only a minor traffic offense." Harris was not suspected of murder, kidnapping, or rape. What he did was drive 73 miles per hour in a 55-mile-per-hour zone. Anyone who has driven on the highway knows that such speeds are routine, and the Court does not suggest otherwise.

When a Georgia county police officer detected Harris's speed, the officer activated his blue flashing lights to indicate that Harris should pull over. Harris sped away instead, and the police, joined later by Deputy Timothy Scott, pursued him. According to the majority's interpretation of the videotape included in the record on appeal, the chase accelerated to dangerously high speeds that threatened the safety of other drivers and pedestrians in its path.

Justice Stevens suggests in dissent that perhaps the chase was not actually so dangerous, because it took place at night "in an area where no pedestrians were present." The dissent contends accordingly that a jury, rather than a group of judges (or what Justice Stevens sardonically refers to as "my colleagues on the jury") should have been allowed to review all of the facts at a trial. Perhaps Harris's driving did not really pose a serious risk of harm to police or bystanders, in which case the use of deadly force was necessarily "excessive," and therefore "unreasonable" for Fourth Amendment purposes.

The worst aspect of the Court's decision, however, is not its jury-preempting finding, on the basis of the video, that the high-speed chase in which Harris and the police were engaged posed a substantial risk of harm to the population. Few would dispute that high-speed chases generally pose a risk of serious injury, even if the particular conditions present in this case might have minimized that risk.

What makes the decision most alarming, in my view, is its underlying assumption that if, in fact, Victor Harris's driving during the chase endangered the safety of surrounding people, then the "reasonable" thing for the police to do was to continue the chase and ultimately force Harris into a life-threatening crash.

Alternatives to Deadly Force

In 1985, in Tennessee v. Garner, the U.S. Supreme Court held that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable." If a felony suspect flees when police try to arrest him, the Fourth Amendment permits the police to use deadly force to stop the suspect only if the failure to do so would pose a serious risk of harm to the officer or others (because, for example, the felony for which police are attempting to arrest the suspect is a crime of violence). Justice White, author of the majority opinion in Garner, captured well what was at stake in the decision there. He said that "[i]t is not better that all felony suspects die than that they escape."

After Garner, police had to consider the relative costs and benefits of available alternatives before deciding to use extreme violence to capture a suspect. And significantly, the alternatives on the table would have to include allowing the suspect to escape. The Court had made clear that it was not invariably legitimate to capture every fleeing felon, no matter what such capture involved.

Two Parties to the Chase

Though it does not purport to overrule Garner, the Court in Harris demonstrates a markedly distinct perspective on suspect flight. In determining that it was "reasonable" for Officer Scott to ram into Victor Harris's car, the Court focused almost exclusively on the suspect's contribution to the dangers of a high-speed chase. But, to quote a cliché, "it takes two to tango."

Victor Harris's original speed, according to the majority as well as the dissent, represented an "ordinary" or "minor" traffic violation. Prior to the chase itself, that is, neither side claims that it would have been appropriate for the police to inflict catastrophic, life-long injury on Victor Harris for speeding. No Justice suggests that it would have been acceptable, at that point, to "go ahead and take him out," as Officer Scott's supervisor said when the chase had escalated, arguably out of control. It was the decision of the police, however, first to pursue Harris for a traffic violation, and then to carry that pursuit to its bitter end, that profoundly and foreseeably raised the danger level faced by bystanders.

The Court, though, does not question the decision of the police to pursue Harris when he failed to pull over. Nor does it question the officers' decision to keep going as speeds mounted. On the contrary, the Court says that "[i]t was respondent, after all, who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice between two evils that Scott [the police officer who rammed Harris] confronted." The only decision-maker, as far as a majority of the Court is concerned, was Harris. On this reasoning, his behavior made the police pursuit effectively inevitable.

The interactive phenomenon of the high-speed chase is, in fact, extremely dangerous, because each party to the chase predictably, unthinkingly, and repeatedly escalates, in the way that bidders do at an auction. In recognition of this reality, some cities have instituted policies prohibiting such chases in pursuit of anyone other than a dangerous felon. Yet the Supreme Court in Harris assumes that a decision by police to give chase in the first place is always and necessarily reasonable and that the chase may properly continue at whatever speeds the suspect and police collectively reach.

Imagining A Different Result

Consider an alternative approach that might keep better faith with the Court's ruling in Tennessee v. Garner. Such an approach would treat the vehicular pursuit of a fleeing driver as the use of extreme force - the initiation of a process that, like a bullet fired from a gun, is likely ultimately to pose a risk of serious injury or death to participants and bystanders alike. As in Garner, the Court might in that case have said that the use of the vehicular pursuit as an instrument of apprehension must be limited to cases in which the alternative - letting the suspect get away - might plausibly pose a greater risk to police and/or public safety than would the pursuit itself.

If a person suspected of a violent felony refused to pull over, police might then choose to initiate a high-speed chase to apprehend him. As the Court explained in Garner, the interest in protecting public safety may make such a choice a reasonable one. If a driver is engaged in a routine traffic violation, by contrast, as Victor Harris was, it follows that such a pursuit is unreasonable from the very beginning and only becomes increasingly so as the speeds of both pursuer and pursued climb to dangerous heights.

If one thus views the chase, as a whole, rather than focusing exclusively on its final seconds, one sees that the public safety interest which the Court invokes to justify Officer Scott's conduct in reality weighs strongly against the entire enterprise of pursuing Harris.

Perverse Incentives

In response to the notion that police should not engage in high-speed pursuits when non-threatening suspects flee by car, Justice Scalia says for the majority that this would create an incentive for reckless, dangerous driving, because "[e]very fleeing motorist would know that escape is within his grasp, if only he accelerates to 90 miles per hour, crosses the double-yellow line a few times, and runs a few red lights." In all fairness, though, it is hard to imagine many fleeing motorists immediately resorting to such dangerous strategies with no one in pursuit.

I suspect that the majority's actual (if unstated) concern about perverse incentives is a very different one: If suspects knew that they could ignore a police signal to pull over - if they could flee, in other words, without bringing on themselves the hot pursuit of speeding police cars - then they might be more inclined to flee. The Court's approval of police pursuit and any resulting injury, by contrast, could lead potential fleeing suspects to think twice about flight.

This argument, however, resembles one that the Supreme Court explicitly rejected in Tennessee v. Garner. There, the State of Tennessee argued that if police may use lethal force to stop any fleeing felon, suspects will be motivated to submit to an arrest and thereby increase the odds of their own injury-free survival. The Court rejected this argument in Garner because "while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts, the presently available evidence does not support this thesis." The same could be said of Harris.

The Future of Tennessee v. Garner

Though the Court distinguishes Garner and asserts that the decision has no application to high-speed chases, it is difficult to be sanguine about the vitality of this landmark decision after Scott v. Harris. The Court's willingness to tolerate the unnecessary use of deadly force on the highway, moreover, is potentially tragic for two distinct groups of people, one of whom the Court claims to care about. It is tragic for drivers like Victor Harris, a nineteen-year-old whom Officer Scott effectively sentenced to a life of quadriplegia. And it is tragic as well for the drivers and pedestrians who will continue - now with the Supreme Court's blessing - to be exposed to the life-threatening effects of the high-speed chase.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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