Supreme Court Rules on Police Chases, Flow Control  

By Sophia Stadnyk

Sophia Stadnyk is senior associate counsel with the International Municipal Lawyers Association in Bethesda, Maryland.

 The U.S. Supreme Court released two decisions of interest on April 30, 2007: Scott v. Harris, 127 S. Ct. 1769 (2007), and United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Authority, 127 S. Ct. 1786 (2007).

In Scott v. Harris, the Supreme Court established the rule 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.

The case arose out of a motorist’s § 1983 action against a county and its law enforcement officers that alleged the use of excessive force in connection with a high-speed chase, in violation of his Fourth Amendment rights. Harris, the nineteen-year-old driver, initially came to the attention of police for driving 73 mph in a 55 mph zone. Harris failed to pull over when followed by a deputy and a chase ensued, with Harris reaching speeds of 85 mph. Scott, a police officer, joined the pursuit, but was not told that the reason was a speeding infraction. Scott terminated the ten-mile chase by ramming Harris’s vehicle. Harris was rendered a paraplegic when his vehicle went off the road and crashed. He claimed that Scott’s actions constituted “deadly force,” which was not justified in the circumstances.

Taking Harris’s view of the facts as given, the U.S. Court of Appeals for the Eleventh Circuit, in Harris v. Coweta County, 433 F.3d 807 (11th Cir. 2005), concluded that a reasonable jury could find that Scott violated Harris’s rights, that the governing law was sufficiently clearly established, and that Scott was not entitled to qualified immunity. Citing Tennessee v. Garner, 471 U.S. 1 (1985), the court found the use of deadly force was constitutionally permissible in limited circumstances, but not in this case, as it found Harris remained in control of his vehicle and did not pose a threat to the officers, other motorists, or pedestrians.

In an 8–1 decision, the United States Supreme Court disagreed and reversed. The majority opinion was written by Justice Scalia; Justices Ginsburg and Breyer filed concurring opinions; and Justice Stevens filed the lone dissent. In a very unusual move, the Court included a videotape of the chase with its decision, and the videotape played a central role in the ruling. (During oral argument, Justice Scalia referred to the chase video as “the scariest chase I ever saw since ‘The French Connection,’” and in footnote 5 in the judgment, he stated, “We are happy to allow the videotape to speak for itself.”)

Finding that the record blatantly contradicted the plaintiff’s version of events, the Court ruled that the car chase that Harris initiated posed a substantial and immediate risk of serious physical injury to others, and that Scott’s attempt to terminate the chase by forcing Harris off the road was reasonable. Accordingly, Scott was entitled to summary judgment on qualified immunity grounds.

The Court began by noting that, at the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there was a “genuine” dispute as to those facts. On the factual issue of whether Harris was driving in such fashion as to endanger human life, his version of events was “so utterly discredited by the record that no reasonable jury could have believed him. The Court of Appeals should not have relied on such visible fiction; it should have viewed the facts in the light depicted by the videotape.” 127 S. Ct. at 1776. Based on the videotape, it was clear that Scott did not violate the Fourth Amendment. “Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force’” (id. at 1777); the real question was “whether Scott’s actions were . . . reasonable.” Id. at 1776. The reasonableness of the seizure was determined by balancing 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.

Here, it was clear from the videotape that Harris posed an actual and imminent threat to others; further, taking into account the number of lives at risk and their relative culpability, it was Harris who intentionally placed himself and the public in danger, and those who might have been harmed had Scott not forced Harris off the road were entirely innocent. As a result, the Court had “little difficulty in concluding it was reasonable for Scott to take the action that he did.” Id. at 1778. While the same lives could have been protected by the police simply calling off the chase, the Court stated that “the police need not have taken that chance and hoped for the best.” Calling off the pursuit was by no means certain to result in Harris slowing down and obeying the law; further, it was obvious what “perverse incentives” such a rule would create: “impunity-earned-by-recklessness.” Id. at 1779.

United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Authority arose out of two separate Second Circuit decisions, United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Auth., 261 F.3d 245 (2d Cir. 2001) (ruling that the counties’ ordinances requiring that solid waste in the two counties be processed at a publicly owned transfer station did not discriminate against interstate commerce), and United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Management Auth., 438 F.3d 150 (2d Cir. 2006) (finding that the counties’ ordinances were valid under the balancing test in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970)). In its petition for certiorari, United Haulers presented both the discrimination question and the Pike balancing question, and the Supreme Court granted review on both.

The Oneida and Herkimer County ordinances required that the garbage generated by local households and businesses within the counties be delivered to one of several waste processing facilities owned by the Oneida-Herkimer Solid Waste Management Authority, a public corporation, thereby preventing the garbage from being processed at nonlocal facilities. The Authority charged a per-ton tipping fee for receiving waste, a fee that was apparently significantly higher than the fees charged on the open market elsewhere in the state.

The counties, however, did not exclude private commercial entities from other aspects of the local market for waste disposal. The ordinances expressly allowed any licensed private entity, whether local or nonlocal, to collect solid wastes from area businesses and households for delivery to the Authority’s processing facilities, and private entities were also involved in removing wastes from the Authority’s facilities after processing (through an open bidding process, the Authority periodically selected a private hauler to transport processed wastes/recyclables from its facilities for delivery to other locations). Several solid waste management companies and an association representing their interests brought a § 1983 action against the counties and the Authority, claiming that the ordinances regulating the collection, processing, transfer, and disposal of all solid waste within the counties violated the Commerce Clause. Specifically, they argued that, as long as private entities were permitted to collect garbage from customers, they could not be required to deliver that waste to an in-state facility—whether publicly or privately owned—as this necessarily prevented them from using processing facilities outside the counties and thus diminished the interstate trade in waste and waste disposal services.

The U.S. Court of Appeals for the Second Circuit, however, ruled in favor of the counties and the Authority and held that, because the ordinances directed solid waste exclusively to facilities owned by the Authority, they did not favor local business interests and, therefore, were not discriminatory. Following proceedings on remand to determine whether the ordinances, despite their nondiscriminatory nature, satisfied the Pike balancing test, the district court concluded that the flow control ordinances were constitutionally permissible. The burden imposed on interstate commerce by the ordinances was no greater than the burden imposed on intrastate commerce, and the court granted summary judgment in favor of the defendants. This ruling was affirmed on appeal, when the Second Circuit, applying Pike, held that, even assuming that the nondiscriminatory ordinances burdened interstate commerce, any burden would be far outweighed by the ordinances’ “clear and substantial” local benefits; thus, the Commerce Clause was not violated. The Supreme Court granted certiorari because the Sixth Circuit had previously issued a conflicting decision holding that a flow control ordinance favoring a public entity did facially discriminate against interstate commerce in National Solid Waste Management Ass’n v. Daviess Cty., 434 F. 3d 898 (6th Cir. 2006).

On appeal, the Supreme Court affirmed the Second Circuit’s decisions and upheld the ordinances. Chief Justice Roberts delivered the opinion of the Court, except as to Part II-D; Justices Souter, Ginsburg, and Breyer joined that opinion in full. Justice Scalia filed an opinion concurring as to Parts I and II-A through II-C; Justice Thomas filed an opinion concurring in the judgment. Justice Alito filed a dissenting opinion, in which Justices Stevens and Kennedy joined.

The Court began by noting that this case presented “flow control ordinances quite similar to the one invalidated in [C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383 (1994)]. The only salient difference is that the laws at issue here require haulers to bring waste to facilities owned and operated by a state-created public benefit corporation. We find this difference constitutionally significant.” 127 S. Ct. at 1790. Because this case did not involve a private facility, Carbone was not the controlling law. The flow control ordinances in this case benefitted a clearly public facility, while treating all private companies exactly the same. Such flow control ordinances did not discriminate against interstate commerce for purposes of the dormant Commerce Clause.

The contrary approach of treating public and private entities the same under the dormant Commerce Clause would lead to unprecedented and unbounded interference by the courts with state and local government. The dormant Commerce Clause is not a roving license for federal courts to decide what activities are appropriate for state and local government to undertake, and what activities must be the province of private market competition. . . . We should be particularly hesitant to interfere with the Counties’ efforts under the guise of the Commerce Clause because “[w]aste disposal is both typically and traditionally a local government function.”

127 S. Ct. at 1796 (quoting United Hauler’s Ass’n, 261 F.3d at 264).

Applying the Pike test, the Court first pointed out that, after years of discovery, no disparate impact on out-of-state, as opposed to in-state businesses, could be found regarding the ordinances. The Court held it was “unnecessary to decide whether the ordinances impose any incidental burden on interstate commerce because any arguable burden does not exceed the public benefits of the ordinances.” Id. at 1797.

Copies of both decisions—and the car chase video—are available at the Supreme Court’s website at www.supremecourtus.gov/opinions/06slipopinion.html.