SUPREME COURT WATCH 

Lani L. Williams volunteers with the Local Government Lawyer's Roundtable.

Qualified Immunity for High Speed Chases

On October 27, the Court granted certiorari in Scott v. Harris, 433 F.3d 807 (11th Cir. 2005), cert. granted, 75 U.S.L.W. 3233 (Oct. 27, 2006)(No. 05-1631). By summer 2007, the Court will decide whether a law enforcement officer’s conduct was “objectively reasonable” for Fourth Amendment purposes when the officer decided to end a high-speed chase by colliding with the fleeing suspect’s vehicle. If the Court answers this question in the negative, the Court also will have to determine whether the law was “clearly established,” so as to deprive the officer of qualified immunity.

Background

The road to the Supreme Court began on March 29, 2001, just before 11 p.m., when a deputy sheriff with the Coweta County, Georgia, Sheriff’s Department flashed his lights at a vehicle driving approximately 73 m.p.h. in a 55 m.p.h. zone. Rather than slow down or stop, the driver attempted to flee, accelerating to speeds of at least 90 m.p.h., crossing double yellow traffic control lanes to pass vehicles, and driving through at least two red lights. (Because the case is before the Court at the summary judgment stage, these facts are recited in the light most favorable to the nonmovant, Harris. Scott asserts that Harris traveled in excess of 100 m.p.h. during the course of the chase.)

The initial pursuit was eventually joined by a second Coweta County Sheriff’s Deputy, Scott, as well as two Peachtree City, Georgia, police vehicles. Scott did not know that the initial violation involved driving at approximately 20 m.p.h. above the posted speed limit. The officers attempted to contain Harris after he entered a parking lot, but he was able to escape after colliding with one of the deputy sheriffs’ vehicles. The pursuit continued at speeds between 90 to 100 m.p.h., until Scott requested permission to conduct a “PIT” (Precision Intervention Technique) maneuver. A PIT maneuver is designed to stop a vehicular escape by ramming a fleeing vehicle at a very precise point to place it into a spin. It is generally conducted at relatively low speeds (35 m.p.h.). After receiving permission, Scott determined the vehicles were traveling too fast, and instead rammed Harris’s vehicle from behind. Harris lost control of his vehicle, left the roadway, and crashed. Harris was unbelted and as a result of the accident is a quadriplegic. The chase, including Harris’s use of his blinkers when changing lanes, was recorded on video.

Reviewing the district court’s denial of qualified immunity at the summary judgment stage, the Eleventh Circuit began its analysis by noting that using a vehicle to stop and apprehend a suspect is a seizure for Fourth Amendment purposes. SeeBrower v. County of Inyo, 489 U.S. 593, 596–99 (1989) (a seizure occurs when a police cruiser sideswipes a fleeing car, producing a crash, and terminating a suspect’s freedom of movement). The Eleventh Circuit then asked whether Scott exerted a reasonable amount of force in seizing Harris. Although recognizing that an automobile is not a deadly weapon in every circumstance, the court pointed to several cases in which driving an automobile was found to constitute the “use of a deadly weapon.” The court determined, under the facts present here, that there was “little dispute” that Scott used “deadly force” in seizing Harris.

Under Tennessee v. Garner, 471 U.S. 1, 11–12 (1985), the use of deadly force is only allowed when (1) an officer has probable cause to believe a suspect poses a threat of serious physical harm or has committed a crime involving infliction of serious physical harm; (2) deadly force is necessary to prevent escape; and (3) if, when feasible, warning of the use of deadly force has been given. The Eleventh Circuit reasoned that none of the factors required by Garner were present in this case. The court found that prior to the chase Harris had not posed an imminent threat of serious physical harm to the officers or others. The court also stated that Harris had not committed a crime involving the infliction or threatened infliction of serious physical harm.

The court concluded categorically that the use of deadly forces is not reasonable in a high-speed chase based only on a speeding violation and traffic infractions when there was little, if any, actual threat to pedestrians or other motorists and there is no question that there were opportunities for later arrest. Further, according to the court, a high-speed chase of a suspect fleeing after a traffic infraction does not amount to the substantial threat of imminent physical harm that Garner requires before deadly force can be used. The Eleventh Circuit rejected the argument that Harris’s driving must be considered sufficiently reckless to give the officers probable cause to believe that Harris posed a substantial threat of physical harm to pedestrians and motorists.

The Eleventh Circuit differentiated Pace v. Capobianco, 283 F.3d 1275 (11th 2002), and Cole v. Bone, 993 F.2d 1328 (8th Cir. 1993). The suspect in Pace (who had been stopped for driving without his headlight on) swerved at police officers, nearly hit another driver while driving on the wrong side of the road, and accelerated toward a police roadblock. In Cole, the driver passed other vehicles on congested Interstate 70 using both shoulders and attempted to ram several police cars, in addition to forcing more than 100 cars off the road. Both drivers were eventually shot and killed. In contrast, the Eleventh Circuit viewed Harris’s speeding as nondangerous because he maintained control of his vehicle, used turn indicators, and did not attempt to run into or over anyone, and because the roads were largely clear of other motorists because of police roadblocks.

Having concluded that ramming Harris’s vehicle constituted an unreasonable use of deadly force to affect a seizure, the court of appeals turned to the question of whether Scott was nonetheless entitled to qualified immunity. It concluded he was not because it was clearly established at the time of the incident that it was unreasonable for an officer to seize a fleeing suspect through the use of deadly force absent a threat of serious physical harm to the officer or others. Critical to the Eleventh Circuit was the low level of the offense committed by Harris (speeding) and the facts above indicating that at least in the eyes of the Eleventh Circuit, Harris’s speeding was not a danger to anyone.

Before the Supreme Court

Scott’s successful petition for certiorari essentially asks the court how dangerous a suspect fleeing in an automobile must be before officers can use deadly force to seize the suspect. The Eleventh Circuit factually distinguished those cases in which suspects forced others off the road, drove through heavy traffic areas, and attempted to injure officers. Nonetheless, Scott’s petition asserts that the Eleventh Circuit’s opinion conflicts with Scott v. Clay County, 205 F.3d 867 (6th Cir. 2000) (officer shot at car after high-speed chase during which suspect drove his car near or at officers), and Smith v. Freland, 954 F.2d 343 (6th Cir. 1992) (officer shot suspect after a high speed chase and after the suspect repeatedly rammed the officer’s vehicle), in addition to the Cole case mentioned above.

Scott’s petition for certiorari states that under the Eleventh Circuit opinion “law enforcement officers are forced into the untenable position of waiting until a fleeing suspect . . . actually maims or kills an innocent bystander before initiating a seizure.” This is not quite an accurate assessment of the Eleventh Circuit opinion. As mentioned above, the opinion draws a distinction between the facts of this case (late at night, relatively little other vehicular traffic, no attempts to affirmatively injure the officers or others by ramming them or running them off the road) and similar seizures in which the suspects have engaged in activity that constitutes a more grave and concrete threat to safety. The question before the Court is where along the continuum of actions for which deadly force is and is not reasonable does this case lie, and can the Court fashion a rule that officers in the field can apply easily?

The deadly force criteria from Garner, 471 U.S. at 11–12, bear repeating:

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

The question on these particular facts is whether Harris would have appeared to reasonable police officers to have been sufficiently dangerous. But, because the Court does not simply answer questions for the case before it, there are many more questions for future cases that the Court will surely consider:

• If traveling almost 20 miles an hour above a posted speed limit is not sufficiently dangerous to justify the use of deadly force, what about traveling 30 miles an hour above the speed limit? 40? 50?

• How should courts define the underlying crime in situations like this? The Eleventh Circuit cited Graham’s statement that reasonableness depends on careful attention to facts, including the severity of the crime at issue. See Graham, 490 U.S. at 396. But what is the appropriate crime in cases involving high-speed chases? Is it the initial speeding infraction (or running a red light or failing to signal before making a turn) or is it the continued reckless driving and evasion of police officers?

• How much traffic must be on the road before other motorists are considered endangered enough to allow the use of deadly force? And is it really significant whether the police have been able to clear other motorists from the roadway, as the Eleventh Circuit posited? If it is significant and the police let the driver go because they cannot apprehend him without the use of deadly force, what responsibility do the police have to innocent parties who may later be injured by the suspect?

• What if the suspect carefully uses his turn signals and weaves through traffic like an accomplished stunt
driver in circumstances akin to those in the Cole case?

It is unlikely the Court will answer all of these questions, but with luck practitioners may be able to tease some hints out of the opinion when it is issued.

The easier question for the Court likely will be whether Scott violated a clearly established right in 2001 when he rammed Harris’s vehicle. The Eleventh Circuit posited that it was clearly established in 2001 that a seizure must be reasonable under the circumstances (including a review of the offense charged), that an automobile can be used as deadly force, and that deadly force cannot be use in the absence of the Garner preconditions. See 433 F.3d at 818–19.

Although these are true statements, questions remain when this framework is applied to this case. It is debatable whether a reasonable officer in Scott’s position would have had probable cause to believe Harris posed a threat of serious physical harm. Traveling 15 to 35 m.p.h. over the speed limit surely is dangerous, especially at night. In light of this fact, one wonders whether it was “clearly established” that traveling at these speeds was not sufficiently dangerous to allow an officer to collide with a suspect to affect a seizure.

It will be interesting to see what kind of guidance the Court provides officers who often have only a few seconds to make decisions about the apprehension of criminal suspects.