Use of Force (Scott v. Harris) (podcast transcript)
Miller: Hi. I’m Tim Miller. With me today is Mr. Brad Lawrence. Brad and I are instructors within the Legal Division of the Federal Law Enforcement Training Center in Brunswick, Georgia. I spent about 20 years on active duty as a Marine Corps Judge Advocate before coming to the Legal Division to teach. Brad, tell us a little bit about yourself.
Lawrence: Hi everyone. I spent three years as a police officer at the University of Oklahoma, a year or so as an Immigration Inspector with the former INS and then eight years as a police officer with the U.S. Park Police in San Francisco, where I went to law school. I did spend five years as an active duty Judge Advocate for the Air Force before coming to FLETC to teach.
Miller: The Federal Law Enforcement Training Center trains federal law officers. Our division teaches federal officers, from approximately 80 different agencies criminal law and criminal procedures. Part of the training includes Legal Aspects of Use of Force, or when a police officer can use force in the line of duty and how much force is authorized. Now Brad, the Supreme Court just decided a Use of Force case. Can you tell us a little bit about the facts?
Lawrence: Sure Tim. Scott v. Harris was decided just a few days ago on April 30, 2007. Here are the facts in the case. A Georgia sheriff’s deputy clocked a speeder going 73 mph in a 55 mph zone. The deputy hit his blue lights, but the speeder, Harris, refused to stop. Deputy Scott heard the radio transmissions about the fleeing traffic offender and joined in the chase. The chase was captured on the deputy’s in-car video system. The ensuing chase reached speeds approximately 90 mph down two and four lane roads and lasted for nearly ten minutes. When Harris drove into a shopping center, officers tried to box him in; but Harris evaded the trap, collided with Scott’s vehicle in the process and then continued on down a two lane road. Following the collision in the parking lot, Scott took over as the lead pursuit vehicle. Six minutes and about ten miles after the chase had begun; Deputy Scott decided to try to terminate the pursuit. He radioed in for permission to use a “Precision Intervention Technique” or PIT maneuver. The PIT maneuver causes a fleeing vehicle to spin to a stop. Scott was granted permission; but then he decided that the PIT maneuver couldn’t be done safely because the cars were going too fast. Instead, Scott hit the rear of Harris’ car with his front push bumper. Harris lost control of his vehicle, ran down an embankment, overturned, and crashed. Harris was rendered a quadriplegic.
Miller: And Harris sued Officer Scott, for what?
Lawrence: Harris sued Scott for using excessive force to make a seizure under the 4th Amendment to the Constitution. Now the 4th Amendment provides in part for the people to be free from unreasonable seizures. And a seizure occurs when a law enforcement officer intentionally terminates a person’s freedom of movement. In all cases, the seizure must be objectively reasonable.
Miller: What was the issue faced by the Supreme Court hearing?
Lawrence: The issue was whether the lower court should have granted Deputy Scott’s request for immunity and dismissed the law suit because based on the totality of the facts and circumstances, the force used to stop Harris was objectively reasonable.
Miller: Now, let me see if I can explain qualified immunity to our listeners. The people can sue government agents for violating certain Constitutional rights. However, unlike a criminal trial, in a civil trial, the defendant officer can request qualified immunity. Immunity is a defense to trial. If granted, there will not even be a trial at all. Do you agree Brad?
Lawrence: Yea I do, but the immunity given is qualified. It’s qualified on the officer’s acts being objectively reasonable. To answer a request for qualified immunity, the district court judge looks at the totality of the circumstances and all of the facts of the case. Then the judge asks, “Could a reasonable law enforcement officer believe that the force used was lawful in light of the facts and preexisting law?” The judge also looks at those facts in a light most favorable to the plaintiff, in this case the fleeing driver, Harris. The courts have to look at the facts in a light most favorable to the plaintiff because granting a request for qualified immunity is essentially denying that plaintiff his day in court.
Miller: So what did the Supreme Court decide?
Lawrence: Tim, the Court found that Officer Scott was entitled to qualified immunity. It found his force reasonable and based on the facts, no reasonable jury could conclude otherwise.
Miller: Now, what’s important to our listeners is not the decision of the Court, but the analysis used to reach it.
Lawrence: That’s true. Here the Court asked two questions. First, did Scott use excessive force under the 4th Amendment when he applied his front bumper to the rear of Harris’ car during the high speed chase? Second, if Scott violated Harris’ Constitutional right by his actions, was the right that was violated clearly established?
Miller: And how did the Court answer the first questions?
Lawrence: The Court found that Scott did not use excessive force and violate the 4th Amendment; therefore, it never got to the second question. A prior Supreme Court decision, Graham v. Conner, held that all force used by a police officer in the line of duty must be objectively reasonable. Objective reasonableness is not capable of being precisely defined or mechanically applied. It’s based on the facts. Could a reasonable law enforcement officer believe that the force used was reasonable in light of the facts and circumstances and preexisting law?
Miller: Now at the Federal Law Enforcement Training Center, we teach our students that federal officers can seize, or apply force to terminate someone’s movement, when it’s objectively reasonable to do so. For example, the suspect may pose a threat to others or the officer might reasonably suspect the suspect is engaged in some type of criminal activity. Explain how an officer comes to a conclusion that it’s objectively reasonable to seize someone.
Lawrence: It’s the facts. You mentioned that an officer might stop somebody he suspected of criminal activity. Now, we call this a Terry Stop based on the Supreme Court decision, Terry v. Ohio. Such a seizure is authorized when based on the facts and the officer’s experience, the officer can articulate with reasonable suspicion that criminal activity is afoot. For example, suppose a police officer sees a teenager in a mall parking lot lifting up the door handles on a new Lexis, peaking inside, and looking around nervously as he’s trying to see if someone’s watching him or not. Based on the officer’s experience and those facts, he might reasonably conclude that the kid’s trying to break into the car. That is reasonable suspicion to stop the kid.
Miller: And based upon the officer’s experience that people attempting to break into cars often carry tools to do so, the officer might reasonably handcuff the suspect and frisk him for weapons.
Lawrence: True. And, if the suspect moved away from the officer after being told to stop, the officer might reasonably conclude the suspect was resisting the investigative stop and then physically stop him. The amount of force the officer uses must be objectively reasonable. In judging whether an officer used reasonable force, the courts have traditionally considered such factors as the seriousness of the crime; whether the suspect is resisting arrest; the threat the suspect poses to the officer or others; and whether the suspect is fleeing from arrest. The Supreme Court in Scott v. Harris also considered some additional factors when stopping a fleeing motorist like Harris; specifically, the risk of bodily harm to the suspect against the threat the suspect poses to the officer or other people.
Miller: Okay now let’s stop beating around the bush. Why was it reasonable for Scott to intentionally rear-end Harris’ car like he did?
Lawrence: Let’s look at the totality of the circumstances Tim. First, the Sheriff’s deputies had cause to believe that Harris was committing a crime, speeding, and could reasonably stop him for doing that. Harris sped away. Officers tried to box Harris in at a shopping center, but Harris eluded capture, colliding with Deputy Scott’s vehicle in the process. Harris then sped down a two lane public highways approaching 90 mph. Highways that had innocent motorist on them. Scott decided to rear-end Harris. That action was likely to kill or to cause Harris great bodily harm; however, the threat posed to the many other people on the road, the innocent bystanders, was just as great. Now moreover, the Court looked at the relative culpability of those involved. It was Harris, after all, who intentionally placed himself and the public in danger by engaging in this reckless high speed chase.
Miller: Now, how did the Court respond to Harris’ argument that the innocent public could have been protected and the whole tragedy avoided, if the police simply stopped the chase, stop chasing Harris in other words?
Lawrence: Not favorably at all. Such an argument assumes that Harris would have stopped his reckless driving once he saw that the blue lights were no longer right behind him. Now Harris may have slowed down. On the other hand, he may have continued speeding away, assuming that the police either had a shortcut or some other strategy that they were going to use to catch him. Second, the Court would not lay down a rule that would require the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger. That would merely encourage suspects to run from police when they had a chance.
Miller: You know many officers have considered Tennessee v. Garner as the seminal case concerning deadly force. What does the Supreme Court say about that in Scott v. Harris?
Lawrence: Well Garner has often been cited as establishing when deadly force is authorized. And the court in this case disagreed with that interpretation. Garner held that it was unreasonable to kill a young, unarmed burglary suspect by shooting him in the back of the head while he was running away on foot and when the officer could not have reasonably believed he posed any threat to anybody. Garner was simply an application of the 4th Amendment’s reasonableness test. The seminal case on the Use of Force is Graham v. Connor. In Graham, the Court held that the force must be objectively reasonable.
Miller: Can we give our officers any type, any specific guidance about when deadly force is objectively reasonable?
Lawrence: Yes we can. Although Tennessee v. Garner is not “the test” anymore, it is still very useful in deciding when deadly force is authorized. Deadly force is force likely to cause death or serious bodily harm. Let’s consider a couple of situations where deadly force might be objectively reasonable. Consider a situation when a suspect is facing off against a police officer. Deadly force is reasonable when the officer or another is threatened by the suspect in a manner likely to cause death or serious bodily harm.
Miller: So let’s get back to that situation we discussed earlier about the guy the cop reasonably suspected of breaking into the car. First, the cop could use reasonable force to stop that suspect. He could use handcuffs too because you know the guy might have a weapon on him or might need to refrain or keep him from grabbing a weapon. If the suspect tried to run, he could tackle the suspect if necessary. It would not be reasonable; however, to use deadly force at this time. Now deadly force may be reasonable if the suspect turned on the police officer and pulled a weapon such as a gun or knife or the suspect attacked the officer and then tried to take the gun. When might it be objectively reasonable for a police officer to use deadly force in the case of a fleeing suspect?
Lawrence: When the officer has probable cause that the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm and the suspect at large poses an inherent risk of death or serious bodily harm.
Miller: So getting back to the kid who tried to break into the Lexis. If the kid simply ran away when the officer ordered him to stop, deadly force would not be objectively reasonable.
Lawrence: I agree. However, assume the officer is responding to an armed robbery, a bank robbery, and he sees an armed bank robber running out the front of the bank. Garner and other cases have held that it’s objectively reasonable to use deadly force when the officer has probable cause to believe the suspect has committed a crime involving the infliction or threatened infliction of serious bodily harm, and the suspect at large poses an inherent risk of death or serious bodily harm.
Miller: Now when does an officer have to give a warning?
Lawrence: The officer should give some type of warning when it’s feasible or objectively reasonable to do so. There may be situations when giving a warning might not be feasible. The officer might not have time to give a warning or it could be a case when giving a warning might endanger the officer or somebody else, innocent bystanders. Imagine that same armed bank robber running out of the bank with a machine gun in his hands. A warning may do nothing more than tell the robber where to shoot the gun.
Miller: Mr. Lawrence, thank you much. Our listeners can learn more about federal criminal law and procedure by visiting our website at: http://www.fletc.gov/training/programs/legal-division/podcasts
Thank you very much.