May 13, 2007
On "unfounded assumptions," even videotaped ones
In the April 30th decision handed down in Scott v. Harris, the Supreme Court held that a police officer's attempt to terminate a high-speed dangerous car chase that threatens the lives of innocent bystanders was reasonable (i.e., does not violate the fourth amendment), even when it places the fleeing motorist at risk of serious injury or death (and even where, as here, the officer contravenes protocol). Hence, the officer giving chase was entitled to summary judgment on the question of qualified immunity.
1. Video "proof". The Court's increased level of interest in, and varying level of deference to, a videotape of the car chase. One would think (hope) that "going to the videotape" would make a factual review of the record -- even a de novo one -- more, not less accurate; more, not less reliable. Query whether that was the case, given the majority found that the Court of Appeals' description of the facts was "blatantly contradicted by the record," determining instead that "what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort."
2. Garner distinguished. Writing for the majority, Justice Scalia's analysis that Tennessee v. Garner "was simply an application of the Fourth Amendment's 'reasonableness' test to the use of a particular type of force in a particular situation," and not a "magical on/off switch that triggers rigid preconditions whenever an officer's actions constitute 'deadly force.'" The Justice continued: "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 factbound morass of 'reasonableness.' Whether or not [the police officer's] actions constituted application of 'deadly force,' all that matters is whether [his] actions were reasonable."
3. Justice Stevens' dissent, taking the majority to task for "basing its conclusions on its own factual assumptions"; for selectively omitting key facts that would have downplayed the danger involved; that the videotape actually confirmed rather than contradicted the lower courts' appraisal of the facts. "[T]he use of deadly force in this case was no more appropriate than the use of a deadly weapon against a fleeing felon in [Garner]," Stevens wrote. "Although Garner may not, as the Court suggests, 'establish a magical on/off switch, [i]t did set a threshold under which the use of deadly force would be considered constitutionally reasonable.... Whether a person's actions have risen to a level warranting deadly force is a question of fact best reserved for the jury.... If two groups of judges 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"
Justice Stevens concluded:
"The Court today 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.'"
In my view, the risks inherent in justifying unwarranted police conduct on the basis of unfounded assumptions are unacceptable, particularly when less drastic measures -- in this case, the use of stop sticks or a simple warning issued from a loudspeaker -- could have avoided such a tragic result.
In my judgment, jurors in Georgia should be allowed to evaluate the reasonableness of the decision to ram respondent's speeding vehicle in a manner that created an obvious risk of death and has in fact made [him] a quadriplegic at the age of 19."
4. Declination to overturn Saucier. Justice Breyer's suggestion to abandon Saucier v. Katz (requiring that lower courts first decide "constitutional questions" before questions involving qualified immunity) was not joined by the majority -- particularly where, as here, Justice Scalia wrote, the constitutional question "is easily decided."