Reflections on the Oral Argument in Scott v. Harris: 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.

What Are the Facts in Scott v. Harris?: 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.

Scott v. Harris Handed Down: Over at SCOTUSblog, Lyle Denniston is reporting that the Supreme Court handed down Scott v. Harris (the car chase excessive force case) this morning. As co-counsel for Scott, I'm happy to report that the Supreme Court reversed the 11th Circuit and ruled in Scott's favor:

In an 8-1 decision, the Court ruled that police do not act unconstitutionally when they try to stop a suspect fleeing at high speed by ramming the suspect's car from the rear, forcing it to crash. The car chase that led to the bumping and crash, Justice Antonin Scalia wrote for the Court, posed "a substantial and immediate risk of serious physical injury to others." Thus, the attempt to terminate the chase by forcing the car off the road was "reasonable" under the Fourth Amendment. Justice Stevens dissented alone; he took a step that is somewhat unusual for him, reciting orally from the bench his reasons for disagreeing with his colleagues.

I'll post a link to the opinion when it becomes available.

  UPDATE: The opinion is here.