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Oral Argument in Scott v. Harris:
Tomorrow the Supreme Court is holding oral argument in Scott v. Harris, the Fourth Amendment excessive force case that I have blogged about (and for which I am co-counsel for the petitioner). Unfortunately I won't be at the argument: My efforts to return to DC from Chicago today after the Federalist Society student symposium at Northwestern have been stymied by the major storm that hit both Chicago and the DC area, which means that I won't be able to get a flight back to DC until Monday night at the earliest. I hope to blog about the argument when the Court releases the transcript tomorrow afternoon, but I may be en route all day so it's hard to know. (It would be particularly nice to have the audio of the argument to listen to as well, as I could give you a more informed take on what the Justices were thinking, but the Court does not release audio tapes of most arguments until enough time passes that no one cares anymore.) Meanwhile, there has been a lot of press coverage of the case today, both in print and on TV. Warren Richey of the Christian Science Monitor offers his take here.

Related Posts (on one page):

  1. Oral Argument in Scott v. Harris:
  2. Briefs in Scott v. Harris:
  3. Merits Brief in Scott v. Harris:
Andy Treese:
Wow. I also planned to fly in to watch argument, and was frustrated when my flight in got cancelled. I imagine it's a bit more annoying if you're co-counsel for a party.
2.25.2007 6:32pm
HoustonSelgin (mail):
The court appears to be concerned that Scott used excessive force by using his vehicle to stop Harris. It sounds insane to me that an officer could be sued in this situation. The idiot teen could easily have killed someone but for the actions of this officer, or could easily have made HIMSELF a quadriplegic by running into a telephone pole on his own. You would be hard-pressed to find a jury ANYWHERE in this country that would buy this argument that somehow his rights were violated. That teen violated mine and everyone else's right to expect a safe environment on the road - to sue the officer is a classic example of shifting responsibility for one's own actions. Also a classic example of trial lawyers trying to make a buck at the expense of law and order, and incidentally, the career of a law enforcement officer who performed his duties in a perfectly reasonable manner.
2.25.2007 8:48pm
John Herbison (mail):
HoustonSelgin, the Eleventh Circuit noted that the ramming of Harris' car could constitute a use of "deadly force" and that a jury could so reasonably conclude. The court accordingly analyzed this situation according to Fourth Amendment restrictions upon a police officer's use of deadly force.

"[A] law enforcement officer . . . performed his duties in a perfectly reasonable Manner."??? Do you seriously contend that a police officer should be permitted to become executioner without benefit of trial for the heinous offenses of speeding and evading arrest?
2.25.2007 11:26pm
David M. Nieporent (www):
John,

1) Of course, the criminal in this case didn't die, so the police officer was't an "executioner," but even if he had died, do you have any evidence the officer was trying to kill him?

2) The criminal in this case wants to have it both ways. He wants to argue that a speeding car is "deadly force" when the police officer used it on him, but that it's harmless when he's the one behind the wheel.

Leaving aside whether we ever want to have a policy which rewards criminals for fleeing from police officers trying to make lawful arrests, in this case he was recklessly endangering many people's lives. This was not, unlike Tennessee vs. Garner, a case of an unarmed criminal. In this case, the criminal was armed with the same "deadly force" the police had. Should they have waited to see if he ran someone down before they tried to stop him?
2.25.2007 11:58pm
John (mail):
I wonder why the Court took this case. It seems loaded with fact questions about reasonableness of conduct, beliefs, etc., which one would think are usually a jury's bailiwick. Of course, leaving this to the jury virtually assures that the cop will get screwed, so maybe we will find some Supreme announcements as a matter of law...
2.26.2007 12:25am
subpatre (mail):
Reality intrudes: Under these circumstances what realistic options are available to law enforcement?

In confronting criminal uses of brute force, knives or even firearms and explosives; there are a number of measured counter-responses available to LE that reduce the certainty of disproportionate(?) force on a citizen. From negotiation to chemical mace to Taser(R) to body armor.

In the case of a recklessly speeding vehicle, these options don't work. A high speed vehicle is to powerful —carries far too much energy— for any armor except the (partial) protection of another vehicle.

Shooting the vehicle (tires, engine) guarantees richochets and has a low probability of success. Shooting the driver has a medium chance of stopping the vehicle due to a high probability of fatality.

Using one vehicle to wreck the other (lets not mince words here) is a practical solution to stop the ongoing danger. It has its own dangers; a high probability of minor injury to citizen or police and a distinct possibility of —as occurred here— more serious consequences.

The ultimate question is what method or technique would better put a stop to people who endanger others' life and limb in order to conceal another minor crime? Until that is solved, vehicle-to-vehicle contact is the cops' best option.


Richey's fear that police will start routinely ramming everyday drivers is unfounded. Pursuits are one of the highest liability activities (they always incur damage) and are administratively restricted.
2.26.2007 1:04am
John Herbison (mail):
True, Mr. Harris was merely rendered quadraplegic rather than killed. That is no doubt why the Elventh Circuit focused of the substantial risk of causing death. The teenaged driver of the pursued vehicle was "was armed with the same 'deadly force' the police had" only if he had intentionally rammed another vehicle while traveling at dangerous speeds.

The Eleventh Circuit did not discuss, apart from a conclusory, one sentence footnote, whether the district court's denial of summary judgment was appealable under the "collateral order" doctrine in light of Johnson v. Jones, 515 U.S. 304 (1995). Since this is jurisdictional, the Supreme Court must consider that aspect of the case as well.
2.26.2007 1:55am
marghlar:
In the case of a recklessly speeding vehicle, these options don't work. A high speed vehicle is to powerful —carries far too much energy— for any armor except the (partial) protection of another vehicle.

Makes mme think that we should enable remote control kill switches on cars, with only law enforcement given the codes to stop engines of cars that won't pull over. The only problem is that it would surely be hacked by people who want to cause chaos in new and interesting ways.

But if it could be done in some sort of secure way (a very strong encryption scheme, perhaps??) it would be a real boon to public safety.
2.26.2007 2:25am
David M. Nieporent (www):
John, I'm sure that the fleeing criminal's potential victims would have been much less unhappy with being recklessly killed instead of intentionally killed. As you say, the standard is "substantial risk of causing death." The fact that he was lucky enough, when running red lights and driving on the wrong side of the road at 90 MPH to weave through traffic, not to hit anybody yet, surely isn't relevant. Are police obligated to wait until he does hit someone?

(If they did that, of course, they'd be sued by the person who was hit.)

Of course, they could let him get away and pray that he decides to stop driving recklessly before he does hit someone.
2.26.2007 5:30am
CM:
I would have rented a car.
2.26.2007 12:09pm
OrinKerr:
CM,

Yeah, I thought about that. The roads were treacherous, too, though; it seemed unlikely I would have made it back to DC in time for the argument even if I drove straight through the night without stopping.
2.26.2007 1:33pm