Coplaw Update

May 2007

The below are direct excerpts from the US Supreme Court Ruling:

Judging the matter on that basis, we think it is quite clear that Deputy Scott did not violate the Fourth Amendment . Scott does not contest that his decision to terminate the car chase by ramming his bumper into respondent’s vehicle constituted a “seizure.” “[A] Fourth Amendment seizure [occurs] … when there is a governmental termination of freedom of movement through means intentionally applied.” Brower v. County of Inyo, 489 U. S. 593, 596–597 (1989) See also id., at 597 (“If … the police cruiser had pulled alongside the fleeing car and sideswiped it, producing the crash, then the termination of the suspect’s freedom of movement would have been a seizure”). It is also conceded, by both sides, that a claim of “excessive force in the course of making [a] …‘seizure’ of [the] person … [is] properly analyzed under the Fourth Amendment ’s ‘objective reasonableness’ standard.” Graham v. Connor, 490 U. S. 386, 388 (1989) . The question we need to answer is whether Scott’s actions were objectively reasonable.

We must first decide,....whether the actions Scott took constituted “deadly force.” (He defines “deadly force” as “any use of force which creates a substantial likelihood of causing death or serious bodily injury,”.

 Tennessee v Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute “deadly force.” Garner was simply an application of the Fourth Amendment ’s “reasonableness” test, Graham, supra, at 388, to the use of a particular type of force in a particular situation.

“Garner had nothing to do with one car striking another or even with car chases in general … . A police car’s bumping a fleeing car is, in fact, not much like a policeman’s shooting a gun so as to hit a person.” Adams v. St. Lucie County Sheriff’s Dept., 962 F. 2d 1563, 1577 (CA11 1992) (Edmondson, J., dissenting), adopted by 998 F. 2d 923 (CA11 1993).

Whether or not Scott’s actions constituted application of “deadly force,” all that matters is whether Scott’s actions were reasonable.

In determining the reasonableness of the manner in which a seizure is effected, “[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” United States v. Place, 462 U. S. 696, 703 (1983) .

Thus, in judging whether Scott’s actions were reasonable, we must consider the risk of bodily harm that Scott’s actions posed to respondent in light of the threat to the public that Scott was trying to eliminate.

Although there is no obvious way to quantify the risks on either side, it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase.  It is equally clear that Scott’s actions posed a high likelihood of serious injury or death to respondent—though not the near certainty of death posed by, say, shooting a fleeing felon in the back of the head, see Garner, supra, at 4, or pulling alongside a fleeing motorist’s car and shooting the motorist, cf. Vaughan v. Cox, 343 F. 3d 1323, 1326–1327 (CA11 2003).

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. It 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 confronted. Multiple police cars, with blue lights flashing and sirens blaring, had been chasing respondent for nearly 10 miles, but he ignored their warning to stop. By contrast, those who might have been harmed had Scott not taken the action he did were entirely innocent. We have little difficulty in concluding it was reasonable for Scott to take the action that he did.

...we are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger. It is obvious the perverse incentives such a rule would create: Every 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. The Constitution assuredly does not impose this invitation to impunity-earned-by-recklessness. Instead, we lay down a more sensible rule: 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.

The pursuit video tape can be downloaded from the US Supreme Court website: http://www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb . The reader is also encouraged to read State of Connecticut  v. Browne, 84 Conn.App. 351, 854 A.2d 13 (Conn. App. 08/10/2004)  Also the reader is encouraged to read the State of Connecticut Model Pursuit Policy: Connecticut Model Pursuit Policy

Force Continuum Defined: Proportionality of force under all the facts and circumstances compelled by necessity.