A troubling take on excessive-force claims.

The Supreme Court has made it more difficult for victims who allege police brutality to prevail in court. In Scott v. Harris, the Court found that a police officer did not use excessive force when he rammed his cruiser into a fleeing suspect's car to end a high-speed chase--even though the crash left the other driver a quadriplegic. (1)

The justices based their decision, in part, on their viewing of a videotape of the chase and the accident. This novel twist on judges' decision-making is likely to become a trend. As videotape equipment becomes common in police cars, there will be more cases where judges at all levels can watch an incident for themselves and come to their own conclusions about what happened. This development raises serious questions about what is appropriate evidence for appeals courts to consider in determining whether excessive force was used.

In March 2001, a Georgia county deputy clocked Victor Harris's car traveling at 73 mph on a road with a 55-mph speed limit. The deputy activated his blue flashing lights, signaling Harris to pull over. But Harris sped away, initiating a chase down what is mostly a two-lane road, at over 85 mph. The deputy radioed his dispatcher to report that he was pursuing a fleeing vehicle and gave the dispatcher Harris's license plate number.

When fellow deputy Timothy Scott heard the radio communication, he joined the pursuit. So did several other officers. Eventually, Harris pulled into a shopping center parking lot, where he was nearly boxed in by police vehicles but evaded the trap by making a sharp turn. He collided with Scott's police car and sped off again.

Scott took over as the lead pursuer and decided to end the chase by using what police officers call a "precision intervention technique" (PIT)--that is, hitting the fleeing car and causing it to spin to a stop. Scott radioed his supervisor for permission to use the PIT and was told to "go ahead and take him out."

But Scott changed his mind, thinking he might be going too fast to use the technique. Instead, he rammed his cruiser into the back of Harris's car. Harris lost control of his car, which veered off the road, ran down an embankment, and overturned.

Harris sued the county and the police officers under 42 U.S.C. [section] 1983, alleging that Scott had used excessive force in violation of the Fourth Amendment. (2) In his defense, Scott asserted qualified immunity. The district court denied Scott's motion for summary judgment on the issue of qualified immunity, finding that there were triable issues of material fact.

The Eleventh Circuit affirmed, holding that a reason able jury could find that Scott had used excessive force. Before the case could be remanded for a trial, the Supreme Court granted review and re versed the Eleventh Circuit.

Writing for the majority, Justice Antonin Scalia opened with a statement of the issue presented: "Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist's flight from endangering the lives of innocent bystanders?" (3)

Actually, there were two questions before the Court, which has in recent years held that a qualified-immunity analysis involves two steps. First, taking the facts most favorable to the plain tiff, a court must determine whether they show that the defendant violated a constitutional right. If so, the court must decide whether the right was clearly established and whether it would have been clear to a reasonable officer that his or her conduct was unlawful. (4) If the officer is deemed to have violated a clearly established right that the reasonable officer should have known, then there is no qualified immunity.

Both Supreme Court and lower court justices have questioned whether this two-step approach is set in stone. (5) In Scott, the Court did not use it. According to Scalia, it was so clear that there was no constitutional violation that the Court did not need to consider the second step. (6)

Focusing on 'reasonableness'

The majority gave great weight to the videotape of the crash in reaching its decision to reject Harris's excessive-force claim. Calling the tape "an added wrinkle" in the case, Scalia noted that "there are no allegations or indications that this videotape was doctored or altered in any way, nor any contention that what it depicts differs from what actually happened. The videotape quite clearly contradicts the version of the story told by [Harris]." (7)

The central question in determining whether an officer violated the Fourth Amendment by using excessive force, the majority said, is whether the officer's actions were reasonable. And in determining reasonableness, Scalia wrote, a court "must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." (8)

In other words, the Court had to balance the officers' need to protect pedestrians and other drivers by stopping Harris's car against the risk of injuring Harris. "In judging whether Scott's actions were reasonable," Scalia wrote, "we must consider the risk of bodily harm that Scott's actions posed to [Harris] in light of the threat to the public that Scott was trying to eliminate. " (9)

Again, the justices relied on the videotape to conclude that "although there is no obvious way to quantify the risks on either side, it is clear from the videotape that [Harris] posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase." (10)

The justices acknowledged that Scott's action--deliberately slamming into the back of Harris's car at high speed--put Harris at risk of serious injury or death. But the Court emphasized that Harris was culpable because he had initiated the chase, concluding that "it was [Harris], after all, who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice between two evils that Scott confronted." (11) By contrast, the Court noted, Scott's actions in ending the high-speed chase protected innocent pedestrians and motorists.

The Court said that no reasonable juror could come to an opposite conclusion. As Scalia explained, "The car chase that respondent initiated in this case posed a substantial and immediate risk of serious physical injury to others; no reasonable jury could conclude otherwise. Scott's attempt to terminate the chase by forcing respondent off the road was reasonable, and Scott is entitled to summary judgment." (12)

The decision is important for three key reasons. First, the Court made it clear that excessive-force claims against police officers must be evaluated under a reasonableness test. In Graham v. Conner, the Court held that police use of excessive force violates the Fourth Amendment. (13) In Tennessee v. Garner, the Court found that the inappropriate use of deadly force violates the Constitution. (14) But in Scott, the Court decided that these earlier cases simply articulated reasonableness tests, and as long as the police conduct passes these tests, there is no liability.

Second, the Court's approach will make it more difficult for people who start high-speed chases to successfully sue police officers for excessive force. The Court stressed that Harris started the chase and that this fact was critical in making Scott's actions reasonable.

The problem with this argument is that Scott did not need to continue the chase. He had Harris's license plate number; he could have let Harris go and then arrested him later--for the original offenses and also for the chase. Under the Court's reasoning, an innocent third party--like a pedestrian--who gets hurt during a chase is in a different position than the person who started the chase and was hurt: The former may recover damages, but the latter may not be able to.

Third, the Court's reliance on its viewing of the videotape is troubling as a matter of appropriate appellate methodology. Fact-finding is the trial court's job. But here, the Court gave no deference to the trial court's review of the evidence. The justices did not let a jury watch the videotape and decide what happened. Quite the opposite, in fact: They simply looked at the evidence themselves and came to their own conclusion.

Irreconcilable differences 

It is impossible to reconcile this situation with the traditional view of appropriate appellate procedure. Cameras are increasingly common in police cars across the country. There will be many more instances where police conduct shows up in photographs, videotapes, or other recordings. These technological advances provide the tremendous advantage of a contemporaneous, unbiased record of what happened. But it is deeply troubling when an appellate court, acting on its own, watches a tape and decides the facts of a case for itself.

In County of Sacramento v. Lewis, a 1998 case, the Court made it tougher for plaintiffs to recover damages for injuries suffered in high-speed chases under a due process theory. (15) In that ruling, the Court held that police officers can be held liable under due process only if their conduct "shocks the conscience"--that is, if they acted with the intention of causing harm to the victim.

In Scott, the Court has made it harder for plaintiffs to recover for harms suffered in high-speed chases under an alternative theory, that the police used excessive force. These higher burdens on the plaintiff--and the concerns raised by the justices' self-appointed fact-finding--make this decision a troubling one on several levels.

Notes

(1.) 127 S. Ct. 1769 (2007).

(2.) See e.g. Tenn. v. Garner, 471 U.S. 1 (1985).

(3.) Scott, 127 S. Ct. at 1772.

(4.) Saucier v. Katz, 533 U.S. 194,199 (2001); see also Wilson v. Layne, 526 U.S. 603, 609 (1999).

(5.) Brosseau v. Haugen, 125 S. Ct. 596, 601 (2004) (Breyer, J., concurring); see African Trade & Info. Ctr., Inc. v. Abromaitis, 294 F.3d 355, 358 (2d Cir. 2002) ("We may, in an appropriate case, decline to rule on the question whether an asserted right exists where, as here, we conclude that it was not clearly established at the relevant time."). Accord Erlich v. Town of Glastonbury, 348 F.3d 48, 55-56 (2d Cir. 2003); Koch v. Town of Brattleboro, 287 F.3d 162, 166 (2d Cir: 2002). But see Tatum v. City & Co. of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006) (the content of the right must be determined before analysis of qualified immunity); Mazuz v. Md., 442 F.3d 217, 225 (4th Cir. 2006) (qualified immunity analysis must follow the proper sequence prescribed by the Court).

(6.) "We need not address the wisdom of Saucier in this case ... because the constitutional question with which we are presented is easily decided." Scott, 127 S. Ct. at 1774.

(7.) Id. at 1775.

(8.) Id. at 1778 (citation omitted).

(9.) Id.

(10.) Id.

(11.) Id.

(12.) Id. at 1779.

(13.) 490 U.S. 386 (1989).

(14.) 471 U.S. 1 (1985).

(15.) 523 U.S. 833 (1998).

ERWIN CHEMERINSKY is the Alston &Bird Professor of Law and Political Science at Duke University.