By: Phil Savrin
For a second time, Freeman Mathis & Gary has been involved in the successful litigation of a high speed pursuit case that reached the United States Supreme Court.
In 2007, attorneys from the firm represented a police officer in the landmark decision of Scott v. Harris, where the United States Supreme Court upheld the use of deadly force to terminate a hazardous high-speed pursuit even though doing so endangers the life of the fleeing driver. In Scott, the pursuit reached speeds of 100 miles per hour on two-lane roads, with the fleeing vehicle crossing double yellow lines and plowing through stop signs in the process. After an extended pursuit, the officer maneuvered his vehicle to collide with the fleeing vehicle, resulting in catastrophic injuries to the driver. In upholding the use of force, the Supreme Court determined that the ongoing risk of harm to the public from the manner of the continued flight outweighs the risk of harm to the driver. In an 8-1 decision, the justices concluded that the officer did not need to wait until there was actually someone about to be injured to use deadly force. Much of the chase was captured on dashboard cameras in the police cars, which gave the justices a front row view of the action. Indeed, Scott is noteworthy because it was the first time a Supreme Court opinion contained a hotlink to digitized evidence.
The decision in Scott has had a profound impact on strengthening the liability defenses to uses of force by officers during high-speed pursuits. At the same time, some lower courts have relied on such factors as lack of clarity of a videotape or disputes over the degree of dangerous driving to find that a jury needed to resolve the reasonableness of the officer's use of force. In addition, law review articles have been written that criticize Scott for allowing judges' subjective perceptions about the risk of harm to usurp a plaintiff's right to a jury trial under the Seventh Amendment. That same criticism, in fact, was lodged by Justice Stevens in his lone dissent from the majority decision in Scott.
Any doubt as to the Scott's vitality was laid to rest last week when the Supreme Court issued its decision Plumhoff v. Rickard. Once again, Freeman Mathis & Gary attorneys were involved, this time in drafting the petition for certiorari. In Plumhoff, the driver eluded police by weaving between lanes on an interstate highway after which the vehicle was cornered on a city street. As in Scott, the pursuit and its aftermath was captured on videotape. As the officers surrounded the vehicle, the driver swerved in reverse and revved his wheels in an attempt to escape. One officer had to even jump out of the way to avoid being hit. As the vehicle was about to speed away, several officers opened fire, causing the driver to lose control and resulting in his death and that of his passenger.
Both the district court and the Sixth Circuit found juries needed to determine whether the force was reasonable, including whether the risk to the public had ceased by the time the shots were fired. In a unanimous opinion, the Supreme Court overruled the lower courts, finding the evidence was clear that the driver had been a menace on the road and was going to continue to be a risk until the pursuit was terminated, by force if necessary. Although two justices (Justices Ginsburg and Breyer) did not join all the reasons expressed by Justice Alito in the majority opinion, it is striking that none of the justices - even those considered more "liberal" - dissented from the decision upholding the use of force as within Fourth Amendment parameters.
The opinion qualifies that only on the Fourth Amendment rights of the driver were at issue and that the court has not resolved whether any rights of the passenger would be actionable. Justice Alito did suggest, however, that any claim by the estate of the passenger might need to be analyzed under the "shock the conscience" test under the due process clause as opposed to "reasonableness" under the Fourth Amendment. Justice Alito qualified further that the case is limited to its facts and a different result would be reached if, for example, force was used after the driver had surrendered.
In sum, although some gray areas remain, the Supreme Court has given wide latitude for police officers to use deadly force to terminate high speed pursuit that create unreasonable risks of harm to the public. As a result, the lower courts will have even less room to find the use of force in these context to be unconstitutional, or to allow juries to resolve the reasonableness of police activities in the perilous arena of high speed pursuits.