This is a second response to the oral argument on Monday in Scott v. Harris. In this post, I want to focus on the question, "Just what are the facts?"

  This is a serious question because the description of the pursuit found in the District Court and the Court of Appeals opinions seems very different from the facts you see when you watch the video. So which governs — the facts as described by the lower courts or the facts as seen in the videotape? Justice Breyer memorably framed the key question at oral argument:

What am I supposed to do? I mean, I'll look again at the tape. I certainly will do that. But suppose I look at the tape and I end up with Chico Marx's old question with respect to the Court of Appeals: Who do you believe, me or your own eyes?

  The right answer is that Justice Breyer should believe his own eyes. It's the right answer for a pretty simple reason: The facts described in the lower court decisions were technically accurate but irrelevant. The lower courts weren't actually making factual "findings" or reviewing the sufficiency of the evidence. Rather, the lower court judges simply misunderstood the legal issues before them, and therefore pointed out facts that were technically true but legally irrelevant. As a result, the Supreme Court doesn't have to choose between two sets of facts. There's really only one set of undisputed facts, and the question is their legal relevance.

  Here's the key passage about the facts from the Eleventh Circuit's decision, 433 F.3d at 817, which I have numbered in order to break out the distinct factual statements:

As noted by the district court judge, taking the facts from the non-movant's viewpoint, [1] Harris remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. [2] He did not run any motorists off the road. . . . [3] Nor was he a threat to pedestrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. [4] Significantly, by the time the parties were back on the highway and Scott rammed Harris, the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections. . . . [5] Nor does the evidence show that Scott or the other officers were in immediate danger or threatened with imminent harm. Accepting Harris' version of events, Harris did not attempt to ram, run over, side-swipe, or swerve into any of the officers (which might have put their lives in danger in the parking lot), nor did he attempt any such conduct once he was back on the highway immediately before the seizure.

  The legally relevant issue in the case is how much of a danger Harris posed to the public based on his driving. Scott had seen Harris during most of the chase, including during the scene at the shopping center. The question is, how much of a danger would Scott reasonably think Harris posed based on what Scott observed? Let's take the lower court's facts in order to see if they are responsive to the legal issue:

  [1] "Harris remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns." This is true, at least viewing the record favorably to Harris. But Harris was also driving at 100mph on a two-lane highway zig-zagging in and out of traffic and running lights. The question was the risk of a future accident, not whether it's possible to identify some discrete aspects of Harris's driving that were not themselves dangerous. So this seems pretty non-responsive to the legal question.

   [2] "He did not run any motorists off the road." This seems true based on the videotape, at least assuming that "running off the road" means really forcing a car off onto an embankment or something like that. But the question is future dangerousness, not one form of a past harm. Again, not responsive.

  [3] "Nor was he a threat to pedestrians in the shopping center parking lot . . . " Well, that seems right, viewing the evidence favorably to Harris: I don't recall seeing evidence of pedestrians in the parking lot who were directly threatened. But the question was whether Harris was dangerous based on a totality of the circumstances, not whether in an earlier 10-second window Harris had posed a particular threat to a particular type of victim.

  [4] "[B]y the time the parties were back on the highway and Scott rammed Harris, the motorway had been cleared of motorists and pedestrians . . ." At the exact moment of contact, the motorway was indeed clear. But again, that's not the question. Fast-forward a few seconds and the motorway up ahead would not be clear, and it was that future that Scott had to contemplate when assessing Harris's dangerousness.

  [5] "Nor does the evidence show that Scott or the other officers were in immediate danger or threatened with imminent harm. Accepting Harris' version of events, Harris did not attempt to ram, run over, side-swipe, or swerve into any of the officers (which might have put their lives in danger in the parking lot), nor did he attempt any such conduct once he was back on the highway immediately before the seizure." True, after the parking lot episode Harris did not direcly threaten Scott. Scott directly threatened Harris only once, in the parking lot, and the contact was made some 90 seconds later. Once again, though, that's not the relevant question. The question is whether and how much of a danger Harris posed generally, not whether at the precise moment of contact Harris posed a danger directly to Scott or other officers.

  In sum, I think the lower court's description of the facts are hard to square with the video not because they were technically inaccurate, but rather because they were so obviously incomplete. The reasonableness inquiry requires an analysis of the totality of the circumstances, and the lower court opinions did not provide that. Justice Breyer's recollection of what he saw "with his own eyes" was the totality of the circumstances of the pursuit, and that's the corrrect perspective for the Court to follow.