Appealed from: United States Court of Appeals, Eleventh Circuit (Dec. 23, 2005)
Oral argument: Feb. 26, 2007
Fourth Amendment, Qualified Immunity, Deadly Force, Police Conduct
In 2001, police witnessed Victor Harris driving 73 miles per hour in a 55 miles per hour zone. When they tried to pull him over, Harris sped away. Officer Timothy Scott joined the chase and after approximately six minutes of pursuit at average speeds between 80 and 90 miles per hour and an unsuccessful attempt at stopping Harris, Scott received authorization from his supervisor to stop Harris by force. Using his push bumper, Scott made direct contact with Harris’s car, causing him to lose control and roll down an embankment. Harris suffered serious injuries. Harris argues that under Tennessee v. Garner, 471 U.S. 1 (1985), which set forth circumstances in which deadly force is reasonable to prevent escape, Scott’s use of force was unreasonable and unconstitutional. Scott argues, however, that the force used should not be characterized as “deadly force” and that a simple reasonableness, and not the more specific test of Garner, should apply. Nevertheless, Scott argues that he should be entitled to qualified immunity. The Supreme Court, reviewing the Eleventh Circuit’s opinion in favor of Harris, will determine the standard to be applied to uses of force in vehicular pursuits which will in turn affect police officers’ discretion in such situations. The Court will also further define the reasonableness requirement inherent in the Fourth Amendment, contributing to an already expansive and complex body of law.
1. Whether Respondent can show that his Fourth Amendment rights were violated when Petitioner used deadly force to terminate a police pursuit by ramming Respondent’s vehicle at a time when he posed no immediate threat to human life, and when Respondent was merely a fleeing traffic offender who was not violently resisting apprehension at any time during the course of the pursuit.
2. Whether clearly established law in 2001 gave fair warning to a reasonable police officer that it is a Fourth Amendment violation to use deadly force to terminate a pursuit by ramming the vehicle of a fleeing traffic offender at a time when the offender poses no immediate threat to human life, and when the offender is merely fleeing and has not violently resisted apprehension at any time during the course of the pursuit.
Whether Scott’s use of deadly force during a car chase to stop Harris, who was fleeing from the police’s attempt to enforce a traffic violation, violated the Harris’s Fourth Amendment rights and, in addition, whether Scott should have known that these actions would be considered a Fourth Amendment violation under the law.
Note: Because this appeal is from a summary judgment motion before trial, there have been no findings of facts in this case. Rather, for the purposes of deciding Scott’s motion for summary judgment, the lower courts are required to consider as true the facts that are most favorable to the opposing party, Harris. For completeness, the following description contains the facts as presented by both sides, with Harris’s version used where there is a discrepancy.
On March 29, 2001, two Coweta County law enforcement officers engaged in a high speed pursuit of Victor Harris, which ended in the crash of Harris’s vehicle. Harris is claiming that one of the officers, Timothy Scott, used excessive force in violation of his Fourth Amendment rights, thus causing the accident.
On the night of the accident, Officers Reynolds and Scott were parked about a mile apart, providing back up for an undercover drug deal. Reynolds observed Harris driving 73 mph in a 55-mph zone. Brief for Petitioner at 3-4. He attempted to pull him over by flashing his lights, but instead Harris sped up, passed against double yellow lines, and ran a red light. Harris v. Coweta County, Ga., 433 F.3d 807, 810 (11th Cir. 2005). Reynolds called in the pursuit of the vehicle but did not specify the reason. Brief for Respondent at 4. When hearing the call, Scott assumed that the pursuit was in connection with the drug deal and began pursuit of the vehicle along with other officers. Brief for Petitioner at 3-4. After Harris entered an empty parking lot, Scott drove directly into Harris’s path in an attempt to cut off pursuit by blocking the exit. Brief for Respondent at 6; Brief for Petitioner at 3-4. Harris unsuccessfully attempted to avoid hitting Scott’s car. After the minor collision Harris again sped away and Scott again followed him. Id. Meanwhile, law enforcement officers from a nearby town blocked off intersections to keep traffic out of Harris’s path. Id. Officer Scott, however, was unaware of this action and requested permission from his supervisor to do a Precision Intervention Technique (PIT). Brief for Petitioner at 3-4.
To do a PIT, an officer must hit a vehicle at a specific place, causing the vehicle to enter a spin. Harris, 433 F.3d at 810. Scott had not been trained in the maneuver but was granted permission to do it anyway by Sergeant Fenninger. Id. Fenninger testified that he was authorizing the use of deadly force when he told Scott, “Take him out.” Brief for Respondent at 8. However, Scott realized he would not be able to complete the maneuver and so instead deliberately ran into the back of Harris’s vehicle, sending him off the road and rolling down an embankment. Harris was not wearing a seatbelt and as a consequence of his injuries became a quadriplegic. Brief for Petitioner at 4-5; Harris, 433 F.3d at 811.
Harris brought numerous claims in relation to the accident, all of which were dismissed except for a claim against Scott in his individual capacity. Brief for Petitioner at 8. Scott claims that as a government official he has a qualified immunity from suit in his individual capacity. In a pre-trial motion, he asked the court to grant summary judgment in his favor on that basis. The court denied his motion, and Scott appealed. The Eleventh Circuit upheld the trial court’s decision, finding that when viewed in the light most favorable to Harris (as is required on a summary judgment motion), the facts demonstrated that Scott had violated Harris’s Fourth Amendment right to be free from excessive force. Harris, 433 F.3d at 812, 814-15. The court also found that the case law at the time of the incident was sufficiently clear to put Scott on notice that ramming a vehicle in those circumstances would be unlawful Id. at 817-18. Therefore the court found that Scott did not have qualified immunity and the trial court’s denial of the motion for summary judgment was appropriate. Id. Scott has appealed.
In Tennessee v. Garner, the Supreme Court stated that “deadly force” can be used when (1) the officer has probable cause to believe that the suspect poses a threat of serious physical harm to the officer or to others, the suspect uses a weapon to threaten the officer, or there is probable cause to believe that the suspect committed a crime involving the infliction or threatened infliction of serous physical harm; (2) it is necessary to prevent escape; and (3) some warning has been given. 471 U.S. 1, 11-12 (1985). Scott argues that this test should only apply where the force used by the officer was clearly deadly force. See Brief for Petitioner at 13.
If the court were to adopt Scott’s limit on the interpretation of Garner, officers engaging in a vehicle pursuit will be able to avoid complicated inquiries difficult to resolve in the heat of the moment and instead act on instinct. See id. at 14. This is because deadly force, as used in the Garner framework, is defined in terms of a “substantial risk” of bodily injury or death. See id. at 14. Therefore, before acting to terminate a car chase, officers must first ask themselves whether contact will likely cause death or serious injury, and if yes, identify whether the factors of the Garner framework exist. Id. at 14-15. This is a complicated process to undertake in the course of chasing a speeding vehicle, particularly because the outcome of vehicle contact is somewhat unpredictable. Id. at 15. Any delay or second-guessing in such a situation could cause the officer to miss an opportunity to stop the vehicle or allow the chase to escalate to a hazardous result. Eliminating the need for this analysis would therefore give officers much greater discretion to act in a way they deem safe and efficient.
However, forcing officers to look for the factors necessary to apply deadly force announced in Garner before initiating contact may also reduce unnecessary accidents. Although the outcome is hard to predict, contact initiated by a police officer during a car chase is often deadly. See Brief for Petitioner at 15; Brief for Respondent at 18-19. The requisite factors here limit deadly force to situations when life or limb is actually in danger and prevent officers from making a forcible stop when there is no risk of injury or when other opportunities exist for capture, such as identifying the suspect through license plate numbers and later arresting. Brief for Respondent at 20, 25. Garner, which was employed by the Eleventh Circuit in this case, effectively guards against such danger. See Harris, 433 F.3d at 815. Keeping it in place could therefore potentially increase the safety of both officers and fleeing suspects in these situations.
If the Supreme Court agrees with Scott and finds that the Garner factors do not apply, they are likely to impose a standard of reasonableness for using vehicle contact in cases such as these. Officers would then only be required to weigh the interests in potentially causing harm with those of capturing a fleeing suspect. See Brief for Petitioner at 15. This, in turn, gives an officer much more discretion in split second decisions. Id. However, lessening the standards necessary before initiating potentially-deadly force would challenge a well-established principle in Fourth Amendment jurisprudence: any use of force must be proportional to the threat. Brief for Respondent at 25.
Alternatively, the Supreme Court could apply Garner but reverse the Eleventh Circuit, thereby finding that there was probable cause for Scott to believe that Harris posed a threat of serious bodily harm. If the Court were to decide this way, it would seemingly give a green light for officers to forcibly end car chases in most situations since, from the facts of the case, the threat of serious harm here seems minimal. See Brief for Respondent 22-24.
Finally, also at issue in this case is whether or not qualified immunity is available to Scott. When considering a claimed constitutional violation, the court asks whether a reasonable officer, acting in his official capacity, would have realized his act violated clearly established law. Harris, 433 F.3d at 811. If yes, then the officer is not entitled to qualified immunity. Id. Scott argues that the “clearly established law” here did not clearly make his actions unlawful because Garner, and cases interpreting Garner, are too vague in their application to these circumstances to be considered clearly established law. Brief for Petitioner at 29. Harris, on the other hand, argues that while Garner and subsequent cases do not precisely address the facts here, they do clearly establish limits on the use of force in Fourth Amendment cases. Brief for Respondent at 31. Therefore, the Court’s decision may also give some clarity to the specificity of “established law” required for qualified immunity to be granted.
Regardless of the outcome, the Supreme Court’s decision in this case will likely shed light on what it sees as the appropriate balance between law enforcement and safety, two interests commonly at odds in Fourth Amendment cases, as well as further define the reasonableness inherent in the application of Fourth Amendment rights.
In order to win his appeal and have his motion for summary judgment sustained, Scott must show that even if Harris’s version of the facts is correct, Scott would still have qualified immunity. According to the Eleventh Circuit, “qualified immunity offers complete protection for government officials sued in their individual capacities as long as their conduct violates no clearly established statutory or constitutional rights of which a reasonable person would have known.” Harris, 433 F.3d at 811. In this case, Harris contends that Scott violated Harris’s Fourth Amendment right to be free from the unreasonable use of deadly force and that Scott reasonably should have known that such a right would be violated in this case. Thus, in Harris’s view, Scott cannot have qualified immunity. The two questions which have been certified to the Court mirror these two contentions. On these issues the burden of proof lies with Harris. See id. at 811-12.
The Deadly Force Argument
The Fourth Amendment prohibits unreasonable seizures. When a seizure is accomplished by excessive force it is unreasonable. See Graham v. Connor, 490 U.S. 386, 395 (1989).
Scott concedes that his actions constituted a seizure, but the parties disagree as to what standard of reasonableness should be applied. Harris argues that Scott’s ramming of his car was deadly force and should be governed by Tennessee v. Garner. Brief for Respondent at 16-17, 19. Garner held that the use of deadly force to apprehend a suspect was only justified in limited circumstances, such as where (1) the officer reasonably believed the suspect posed an immediate threat of harm to the officer or others, (2) the force was used to prevent escape, and (3) warning had been given if feasible. 471 U.S. at 12.
However, Scott has not conceded that he used deadly force. He claims that when contact between two vehicles is involved it is difficult to determine if such contact was deadly force. Brief for Petitioner at 14. He argues that Garner should only be applied where it is clear deadly force was used. Id. at 13-14. Since in his view that is not the present case, the general unreasonableness standard of the Fourth Amendment should apply. Id. at 14. He argues that the Court should examine the question from the perspective of a reasonable police officer at the time and balance the risks that would be caused by the contact against the risks that would be avoided in deciding if the officer’s actions were reasonable. Id. at 14-15.
The significance of the Court’s decision depends on whether they take a categorical approach or a fact-specific approach. If the Court agrees with Harris that Scott used deadly force when he bumped the car and justifies that holding by generalizing contact between two speeding vehicles as inherently deadly, then all future Fourth Amendment cases involving contact of any sort between police vehicles and other cars will be analyzed under the deadly force rules set forward in Garner. If, however, the Court agrees with Harris on this point only because of the specific circumstances present in this case, the parties in future cases will have to argue whether or not such vehicle contact constituted deadly force in their circumstances.
If the Court agrees with Scott, however, that this does not constitute deadly force, then it would seem that the Garner rules would rarely apply in vehicular contact, since Scott made contact at very high speeds and did not use a maneuver like PIT which is designed to end vehicular pursuits more safely. See Capt. Travis Yates, “Police Driving: Safety Behind the Wheel”, PoliceOne.com.
Regardless of whether the Court characterizes Scott’s ramming of Harris’s car as deadly force, they must still answer the question whether that force was excessive. Under Garner their decision will give more guidance to what circumstances constitute “probable cause”; an analysis under a general balancing test will shed light on how much weight should be given to police interests versus the risks associated with vehicular contact to end high speed pursuits.
The Notice Argument
The Court will only reach the second issue in the case if it first determines that Scott did violate Harris’s Fourth Amendment rights.
Harris argues that the law at the time of the incident clearly established that bumping his car from the rear under those circumstances would be a violation, and therefore Scott was on notice that his actions were unconstitutional. Brief for Respondent at 30. Even when the specific action in question has not been ruled upon before, if the unlawfulness of the action is apparent from prior law then a government official still will lose his qualified immunity. Anderson v. Creighton, 483 U.S. 635, 640 (1987). Harris argues that a trilogy of cases, Garner, Graham, and Brower v. County of Inyo, 489 U.S. 593 (1989) establish that deadly force can only be used when the person fleeing poses an immediate danger, and even non-deadly force must be proportional to the threat posed by the offender. Brief for Respondent at 31. Since Harris was being pursued for a mere traffic violation and posed no immediate danger to others, Scott’s should have known that his use of force was outside the limits established by those three cases. Id.
Scott contends that the law was not so clearly established as to give him fair warning that his actions would violate Harris’s rights. Also relying on Anderson, he argues that the law had to establish that using the push bumper to stop Harris’s flight would be unlawful. To support this he points out that at the time of the incident no case had been decided holding vehicle to vehicle contact a violation of the Fourth Amendment but that several cases had explicitly held that such contact did not constitute such a violation. Finally, Scott points to Brosseau v. Haugen, 543 U.S. 194 (2004), in which the Supreme Court held that Graham and Garner dealt in too high a level of generality to provide a basis for stripping an officer of qualified immunity. Brief for Petitioner at 25-26.
Harris and Scott’s interpretation of the level of specificity required for a law to be “clearly established” in the Fourth Amendment context vary significantly. Consequently, if the Court reaches this question they can potentially clarify greatly the standard to be applied in such cases.
Police officers engaged in hot pursuit of a fleeing vehicle are forced to make important decisions in a short amount of time. The Supreme Court here will determine the inquiry necessary to make decisions that promote both the general interest of apprehending a suspected criminal and the specific interest of avoiding unnecessary harm to the suspect, officers, and surrounding community. Although the decision will give guidance to officers attempting to stay within the boundaries of the Fourth Amendment, its logic will not be tested until put to practical use in the field.
- LII Law about... Criminal Law
- Valerie Alvord, Police Pressured to Call Off Chase, U.S.A. Today, Jan. 15, 2003.
- Human Rights Watch, Shielded from Justice: Police Brutality and Accountability in the United States