Julie Risher, Public Safety Attorney, Winston-Salem, North Carolina
hief, for your signature, here’s our revised pursuit policy. In accordance with the opinion of the U.S. Supreme Court, it allows officers to use PIT, which is deadly force, against speeders.” How do you respond?
- You pick up the pen and sign.
- You look at your training commander in disbelief.
- You buzz your legal advisor for an explanation.
Painful though it may be, option 3 is the best choice. Chiefs must understand what the decision in Scott v. Harris1 holds—and does not hold—in order to understand its effect on issues pertaining to pursuit, use of force, and record retention.
Victor Harris, ignoring the blue lights and siren of the officer trying to stop him for speeding (at 73 miles per hour in a 55-mile-per-hour zone), led officers on a six-minute, 10-mile chase at speeds exceeding 85 miles per hour on mostly two-lane roads. Officers had obtained the license plate number (which provides some means of follow-up). When Harris turned into a shopping center, officers positioned their cars in an attempt to block him. He collided with Deputy Scott’s vehicle before escaping. Subsequently, Deputy Scott, now the lead car in the pursuit, requested and received permission to use a precision intervention technique (PIT) maneuver to stop Harris.2 However, because the speed was so great, Deputy Scott instead decided to hit Harris’s car with his front “push” bumper. In the ensuing second collision, Harris suffered significant injuries, rendering him a quadriplegic. He subsequently brought a Section 1983 lawsuit, alleging use of excessive force.
Because the intentional collision of a law enforcement officer’s vehicle with another constitutes a Fourth Amendment seizure, objective reasonableness at the time of the seizure in light of the circumstances remains the standard by which to determine whether a seizure is constitutional.3 The 11th Circuit Court,4 relying on Tennessee v. Garner,5 concluded that the facts and circumstances here did not justify use of deadly force. The court focused on the fact that Harris’s “crime” was speeding. In addition, the court rejected the argument that, as a matter of law, Harris’s driving was “sufficiently reckless to give Scott probable cause to believe that [Harris] posed a substantial threat of imminent physical harm.”6
Cautioning against applying Garner rigidly in all situations, the Supreme Court noted that Garner explored “the use of a particular type of force in a particular situation.”7 This comment indicates that Garner guides law enforcement in shooting cases and that Scott and other vehicle cases guide in driving cases.8 The overarching consideration applicable to all use-of-force cases is the objective-reasonableness test established in Graham v. Conner.9
Balancing the nature and quality of the intrusion against the importance of the government interest, the Court compared the probability that a high-speed collision would seriously injure Harris to the less-certain threat to the public that Harris posed (and that Scott intended to eliminate).10 Although the number of lives at risk is relevant, the Court considered what it called “relative culpability” in the balancing test: “We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability.”11 The Court went on to conclude that the motoring public in the area was innocent; Harris, however, was culpable because he, by initiating the chase, had placed himself and others in danger.
The important part of the decision is that the Court found Harris more culpable not because of the nature of the underlying crime (here, the relatively minor offense of speeding) but because of Harris’s decision, in the court’s words, to “initiate” the chase by choosing not to stop in response to the appearance of blue lights and sirens.12 That culpability offset or outweighed the more substantial likelihood of Harris’s death or serious injury if Scott collided with him.13
Three additional points merit mention to place Scott in perspective. First, the Court did not address the reasonableness of the pursuit (which, of course, is not a seizure) and declined to say that forcible seizures after pursuits for minor crimes are categorically unreasonable.14 Most pursuit policies (presumably modeled on Graham and Garner) consider the nature of the underlying crime (e.g., a fleeing suspected armed robber) for which the suspect is being pursued, along with other factors such as road conditions, traffic, time of day, and so on. Generally, the trend in policies is to pursue only for more violent offenses. Some departments may want to revisit this issue, but others may prefer, because of departmental and other considerations, to adopt policies identifying certain crimes as so-called no-chase crimes, absent other circumstances indicating danger.15
Second, the Court rejected the argument that the Fourth Amendment reasonableness standard required Scott to discontinue the pursuit, noting that “the Constitution assuredly does not impose this invitation to impunity-earned-by-recklessness.”16 Rather, the Court wrote that “[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.”17 Finally, policy makers must remember that this case did not involve a claim by an injured third party. Thus, this case does not address an officer’s or city’s liability in the third-party injury context (which would most likely arise under state law).18 Thus, a review of applicable state law is an imperative part of policy development and formulation.
Role of Videotape Evidence in Pursuit and Other Driving Cases
The legal community is all atwitter because the Court itself viewed the videotaped record of the pursuit and rejected Harris’s version of the facts in light of that recording.19 Setting aside these scintillating discussions about the scope of review and evidence, why is the Court’s approach relevant to those who make policy decisions about equipment in police cars and records retention?
Videotape evidence will go a long way toward removing any subjective perception or spin on facts by plaintiffs (or by law enforcement). In fact, the Supreme Court admonished the 11th Circuit Court for accepting Harris’s version of the facts when the tape clearly indicated that the true facts were otherwise. “Indeed, reading the lower court’s opinion, one gets the impression that respondent, rather than fleeing from police, was attempting to pass his driving test.”20 Agencies will fare better (or worse, in some cases) at the summary judgment stage depending on the court’s determination of facts based on the tape. The result may be, in some cases, prompt dismissals or settlements instead of protracted litigation.
The role the videotape played in this case also raises issues of records retention. Had the agency not retained the tape, the Court would have relied on Harris’s version of the facts. The Court noted that Harris’s account differed significantly from the videotaped record and depicted Harris as driving in a cautious and controlled manner.21
Without the videotaped visual account of the chase, the Court might have ruled differently. When developing retention policies for video recordings of police activities, policy makers should consider the statutes of limitation applicable to potential legal claims, records retention statutes, and the scope of applicable public-records laws.22 All of these considerations will affect retention periods and disclosure requirements; any policy must take these issues into account. Many jurisdictions exempt criminal investigative records from disclosure under public-records laws, but whether the recording is a criminal investigative record will likely depend on the particular circumstances.
Scott v. Harris does not change the law; objective reasonableness is still the standard against which all seizures are measured. However, the case is significant in several respects. First, the Court is willing to consider raw evidence (in this case, the recording of the chase) rather than reserving the factual determinations for the jury in a case where the objective recording eliminates any genuine issue of material facts. In addition, the Fourth Amendment does not require officers to abandon a pursuit when the pursued drives so recklessly as to endanger others.
Finally, reasonableness is measured at the time of the seizure. In pursuits, the precursor crime leading to the pursuit may be irrelevant; rather, the balancing test compares the intrusion on the individual’s interest against the importance of the governmental interest.23 Relative culpability figures into this balancing test.■
This column is a service of the IACP Legal Officers Section, which is composed of police legal advisors who are members of IACP and the section. The opinions expressed and positions taken are those of the column’s author and do not necessarily represent the views of the IACP, The Police Chief, or even the Legal Officers Section. Attorneys who wish to submit articles for possible use in this column or anyone wishing to join the Legal Officers Section should contact Randy Means at email@example.com.
1Scott v. Harris, 127 S.Ct. 1769, 2007 WL 1237851, U.S., April 30, 2007 (No. 05-1631).
2Deputy Scott had not been trained in PIT before this pursuit occurred. However, because he did not employ PIT, the Court did not address the training issue or that PIT would be unsuitable to use at these speeds.
3Scott, 127 S.Ct. 1769, slip op. at 8, citing Graham v. Conner, 490 U.S. 386, 388 (1989).
4Harris v. Coweta County, 433 F. 3d 807 (2005).
5Tennessee v. Garner, 471 U.S. 1 (1985).
6Harris, 433 F. 3d at 815.
7Scott, 127 S.Ct. 1769, slip op. at 8. The Court also clarified when Garner permits deadly force: “(1) the suspect must have posed an immediate threat of serious physical harm to the officer or others; (2) deadly force must be necessary to prevent serious physical harm, either to the officer or to others; and (3) where feasible, the officer must have given the suspect some warning.” See id., text and footnote 9, slip op. at 9.
8The Court noted, “Although respondent’s attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end we must still slosh our way through the fact-bound morass of ‘reasonableness.’ Whether or not Scott’s actions constituted application of ‘deadly force,’ all that matters is whether Scott’s actions were reasonable.” Id., slip op. at 10.
9Graham, 490 U.S. at 388 (objective reasonableness is the proper standard).
10Harris “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. . . . Scott’s actions posed a high likelihood of serious injury or death to the respondent [Harris]—though not the near certainty of death posed by, say, shooting a fleeing felon in the back of the head . . . or pulling alongside a fleeing motorist’s car and shooting the motorist.” Scott, 127 S.Ct. 1769 at 11 (citations omitted).
11Id. at 11.
12Id. at 13.
13At this point in the opinion, the Court mentioned the length of the chase and the number of cars involved. Uncertain is whether the Court would have reached the same conclusion in a shorter, briefer pursuit. See id., slip op. at 12.
14However, Justice Stevens mentions in his dissent weighing the need to apprehend against the danger of the pursuit or the danger of the suspect remaining at large. See id., slip op. Stevens at 6.
15Because Scott is not a pursuit but a seizure case, the Court did not even mention many of the factors often included in policies set to assist an officer in determining whether to begin or continue a pursuit.
16Scott, 127 S.Ct. 1769, slip op. at 13.
17Id., slip op. at 13.
18See, e.g., Jones v. City of Durham, 360 N.C. 81, 622 S.E. 2d 596 (2005).
19Scott, 127 S.Ct. 1769, was an interlocutory appeal from the trial court’s denial of Scott’s motion for summary judgment on qualified immunity grounds. Because in such circumstances a jury or judge has not yet found facts from the evidence, the past practice has been to view the evidence in the light most favorable to the nonmoving party when there is a genuine issue of material fact. Here, the majority concluded that no genuine issue of material fact existed because no jury could believe Harris’s account in light of the videotape evidence.
20Id., slip op. at 5–6. To view the video online, see www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb.
21Id. at 6.
22At least one court has allowed a plaintiff’s claim for obstruction of justice to proceed to trial where the evidence “would allow a jury to conclude. . . that the videotape was subsequently misplaced or destroyed.” See Jones v. City of Durham, 643 S.E. 2d 631 (N.C. App. 2007).
23Here, the danger Harris posed to officers and the public outweighed the high likelihood that he would suffer death or serious physical injury as a result of the collision.