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Use of Force - Part IV


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Part IV: Scott v. Harris11 - The Supreme Court established the relationship between Garner and Graham.
Edward Garner was a fleeing burglary suspect who posed no articulable threat to the officer or others. But what if Garner was someone who posed a continuing threat to society if allowed to remain at large, like a murderer? The Supreme Court stated:

“If…there is probable cause to believe that [the suspect] 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.”

For several years, the lower courts believed that the Garner decision set rigid, preconditions as to when deadly force was authorized to stop a suspect’s flight. The fact that Graham’s objective reasonableness test is the standard for judging all force was not made clear until the Supreme Court’s decision in Scott v. Harris.

Mr. Harris was speeding when an officer signaled for him to stop. Harris fled and a high-speed car chase ensued. Enter Officer Scott. Officer Scott pushed Harris off the road by ramming the rear bumper of Harris’ vehicle. At the speeds both cars were traveling (almost 100 miles per hour) Harris claimed that the push was “deadly force” and that it was unreasonable to use it to stop his flight. He referenced the example in Tennessee v. Garner. Harris’ argument was that he was a mere speeder, not someone who posed a continuing threat to society if allowed to remain at large, like a murderer.

The Supreme Court disagreed with Harris’ argument. Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute “deadly force.” Graham v. Connor’s objective test controls every case.

The heart of Graham is to weigh the nature of the intrusion on the suspect’s liberty (what the officer did) against the countervailing governmental interest at stake (or why the officer did it.) So what did Officer Scott do …?

Scott pushed Harris’ car off the road while Harris was traveling almost 100 miles per hour. But why? What was the governmental interest at stake …?

The Court applied the facts to the Graham factors. True, the underlying offense was only speeding, but Harris fled. And this was no foot chase. This was flight by means of a two-ton vehicle. Harris raced down narrow, two-lane roads in the dead of the night, and at speeds in excess of 85 miles per hour. Harris swerved around more than a dozen other cars, crossed the double yellow line, and forced other cars off the road to avoid being hit. He ran multiple red lights and traveled for considerable periods of time in the occasional center left-turn-lane. Harris did all that while being chased by numerous police cars. Harris even rammed one of the police cruisers. Only after observing those facts did Officer Scott push Harris off the road.

Harris’ flight by means of a speeding vehicle posed a significant threat of serious physical harm to others and created the strong governmental interest that made what Scott did fall within the range of reasonableness.12 Scott received qualified immunity.

Scott v. Harris established the relationship between the Garner and Graham decisions. Graham established the test for judging all force. The test is objective reasonableness. The Garner decision provides examples as to when force highly likely to have deadly effects is reasonable. One is a murderer who would pose an continuing threat to society if allowed to remain at large. But that is just one example. Scott states that there are no rigid pre-conditions (or set of facts) that must exist before using deadly force. The court must wade through the facts, and when the facts come together so that a reasonable officer could believe that the suspect poses a significant threat of death or serious bodily harm, deadly force falls within the range of reasonableness.

1. Plumhoff v. Rickard – Shooting at Moving Vehicles.13
Scott v. Harris left open under what circumstances shooting at a fleeing motorist was reasonable. That question was answered in Plumhoff v. Rickard. Like Mr. Harris, Mr. Rickard started a high-speed pursuit after a minor traffic offense. The chase exceeded 100 miles per hour and lasted over five minutes. Rickard passed more than two dozen vehicles, several of which were forced to alter course. He eventually collided with a police car and came to a temporary standstill. Still, Rickard promised to continue the chase. With his front bumper flush against a police car, Rickard hit the accelerator causing the tires to spin. Officer Plumhoff fired the first three shots into the car. Rickard then threw the car into reverse and started to drive away. Other officers fired 12 more shots into the car. Richard crashed and he and his passenger died of some combination of gunshot wounds and injuries from the crash.

Rickard’s estate sued. The officers requested qualified immunity, but the lower court refused to grant it. The lower court believed that there were significant differences between this case and Scott v Harris. The lower court noted: (1) Richard was only traveling 4 or 5 miles per hour when force was used; (2) Richard had a passenger in the car; and finally, (3) instead of being pushed of the road, the officers fired 15-rounds at him.

The Supreme Court reversed the lower court. The differences were insignificant. While traveling much slower than Harris, the facts demonstrated that Richard would continue his dangerous flight. All 15-shots were fired to end that threat.

And the passenger did not make any difference. The question was whether the officers violated Richard’s Fourth Amendment rights, not his passengers. 14

2. San Francisco v. Sheehan – Immunity for Tough Decisions.
Before a judge can deny an officer qualified immunity, the judge must find that the officer violated a clearly established constitutional right. The law was not clear in the Sheehan case. Ms. Sheehan lived in a group home for people suffering with mental illness and was not taking her medications. “Get out of here!” she shouted after a social worker entered her room. “You don’t have a warrant! I have a knife and I’ll kill you.” Two officers were dispatched to the home to take her to a hospital. When they entered her room, Sheehan charged with the knife and the officers retreated to the hallway.

From the relative safety of the hallway, the officers had some options. One was to wait for backup and try to de-escalate the situation. Instead of waiting, however, the officer re-entered the room. Predicatably, Sheehan charged again with the knife. Predicatably (her lawyer would argue) the officers were forced to shoot her.

The issue in this case was not whether the officers could enter Sheehan’s room without a warrant. They could; this was an emergency. Deadly force to seize Ms. Sheehan - - viewed at least from the moment of the shooting - - was also reasonable. The issue was over the Ninth Circuit’s provocation doctrine. The Ninth Circuit denied the officers qualified immunity because the court believed that the officers may have needlessly provoked the deadly encounter when they entered the room the second time.

The Supreme Court reversed. Even assuming the officers did provoke the encounter, the law was not clear. The Court found wanting any robust consensus of precedent that would have put any reasonable officer on notice about when it was reasonable, or not, to re-enter the room.

Qualified immunity is designed to protect all but the plainly incompetent or those who knowingly violate the law. It is certainly not a noble standard to live up to. However, qualified immunity has a vital purpose in cases where police officers are likely to face public ridicule for not acting and personal liability when they do. Before the officer can be forced to face the burdens of litigation the law must be clearly established so that any reasonable officer would know “that’s unconstitutional - - I can’t do that!”


11 Scott v. Harris, 550 U.S. 372 (2007).

12 There is not a Fourth Amendment prohibition against vehicle pursuits of fleeing misdemeanants. Harris argued that the public would have been protected, and the tragedy avoided, if the police simply ceased their pursuit. However, the Court stated, “…we are loath to lay down a [constitutional] rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives at danger.” Still, state law and agency policy may place heightened restrictions on pursuits due to the extreme risks they pose to the officers and the public. See Day v. State of Utah, 980 P.2d 1171, 1179 (Utah 1999).

13 Agency policy may also place restrictions on shooting at moving vehicles.

14 There is some disagreement among the lower courts as to whether a passenger in this situation can recover under a Fourth Amendment theory. See Plumhoff v. Rickard, 134 S. Ct. 2012, fn. 4 (2014).