I just finished reading the transcript from today's oral argument in Scott v. Harris. It was an excellent argument: The Justices were all very engaged in the case, and I thought they asked exactly the right questions. Now that the argument is over, I wanted to offer some thoughts on the deeper issues raised by the case. Instead of offering all of my thoughts in one very long post, I thought it would be better to write a few posts, each of which addresses a major issue mulled over during the argument this morning. In this first post, I want to focus on the question, "what should the test be?" (And just a reminder, in case you haven't read any of my prior threads, that I am co-counsel for Scott and co-authored the brief in the case.)

  The Justices spent a good amount of time on the question of what test they should use to determine reasonableness in a case like this. There are two key precedents, and they took very different approaches: Tennessee v. Garner , 471 U.S. 1 (1985), announced a specific rule to govern reasonableness when deadly force is used — in that case, shooting a fleeing felon in the head — and Graham v. Connor, 490 U.S. 386 (1989), then explained that the real issue in excessive force cases is a general balancing of interests. The facts of this case are unlike Graham or Garner. So the question is, what's the test? Should it be Graham reasonableness, Garner's specific rule, or something else?

  My own view is that the overarching question is reasonableness under Graham, but that the Court must giving meaning to Graham reasonableness by articulating specific rules that guide officers and courts in specific contexts. For example, Garner explains Graham reasonableness when an officer uses a gun or another device that is clearly deadly force under the circumstances. The question is, what is Graham reasonableness in a high speed car chase? Or more accurately, what inquiries could be used to help define reasonableness in different types of car chases?

  The problem with creating a single answer to this is that most pursuits implicate two distinct interests: first, protecting public safety from the dangers of the moment, and second, catching the bad guy to enforce the law in that case and deter flight more generally. Under the particular facts of Scott v Harris, the first interest was primary and the latter was secondary; this case was primarily about minimizing harm to public safety, not catching a bad guy to bring charges. But the facts of each case will fall along a continuum of both the degree of public harm and the government interest in enforcing the law.

  Scott's brief contends that while reasonableness cannot be defined for every case, at a minimum a seizure is reasonable if reasonably calculated to minimize the threat to human life and safety. This isn't intended to be the exclusive test that governs all police chases, as it deals only with the public safety interest. Clearly many seizures would be reasonable even if not so reasonably calculated based on the interest in enforcing the law. But the idea was to offer a guidepost for the use of force that the police can use; many seizures will be reasonable even if they are not about harm minimization, but at the very least officers comply with the Fourth Amendment when they reasonably believe they need to act to minimize the threat to public safety. My sense is that this is a relatively uncontroversial, minimalist guidepost: it does not explain what reasonableness always means, but rather carves out a range of police conduct that will clearly be reasonable in a way that gives relatively clear guidance to the police in car chases (more so than a general balancing test of Graham or even the specific test of Garner).

  With all of that said, you reach the same result under any of the tests. Scott's conduct was reasonable under Graham, Garner, or the harm-minimization test offered in Scott's brief. So the issue here is how to get to the result, not which result is correct.