High-speed pursuits as a use of force:
A law enforcement analysis of
Scott v. Harris, 127 S.Ct. 1769 (2007)
By John R. Grasso, Esq.
Can a police 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 without violating the motorist’s federal constitutional rights? Put another way, may you, as a police officer, lawfully ram a fleeing motorist’s car from behind in order to stop it or would that action constitute an unreasonable seizure under the Fourth Amendment because of your excessive use of force?
Because almost every action you take is judged on the facts and circumstances surrounding it, consider these facts and circumstances, then answer the question I just posed — You are on a traffic post on a four-lane highway with a 55-mile-per-hour speed limit. You clock a motorist’s vehicle traveling 73 miles per hour. You pursue the vehicle with lights and siren and the motorist doesn’t pull over.
Instead, he speeds away and you chase. At times, motorist is traveling 85 miles per hour on the same 55-mile-per-hour roadway. He passes several cars traveling in the same direction by crossing over into the opposite lane of travel. However, he uses his turn signal before doing so and never attempts to pass when vehicles are traveling in the opposite direction. In fact, when there are cars traveling in the opposite direction, the motorist slows and waits for them to pass before overtaking the car in front of him.
A few moments later, motorist pulls into a parking lot of a shopping center. It is 11 p.m. on a weekday night and the shopping center is closed. Other officers have already blocked off intersections to keep the motorist from entering residential neighborhoods. There isn’t a single parked car, pedestrian, residence, or sidewalk in sight.
You and other officers attempt to box him in. Motorist makes a sharp turn and slightly collides with your cruiser. You are not injured, and damage is so minimal that you continue to pursue. Less than six minutes and ten miles after the chase began, you are back on the highway and decide to terminate the chase by employing a “Precision Intervention Technique (‘PIT’)” maneuver. However, because you are traveling too fast, you determine that you cannot safely execute that maneuver. Instead, you ram the back of the motorist’s automobile. The motorist loses control of his automobile, leaves the roadway, runs down an embankment, overturns and crashes. He is rendered a quadriplegic.
Now that you have the facts and circumstances, what is your answer? Can you lawfully ram the motorist’s automobile or will you be adjudged to have violated his constitutional rights by using excessive force to make a seizure? Let me ask it another way. Is the law sufficiently clear to give reasonable law enforcement officers fair notice that ramming a vehicle under these circumstances is unlawful?
The United States Supreme Court recently answered this question in Scott v. Harris. You might be surprised to learn that the Court held this conduct to be a lawful use of force. In other words, the Georgia deputy did not use excessive force when he rammed his cruiser into the back of the fleeing motorist’s automobile rendering the motorist a quadriplegic after a six-minute, ten- mile pursuit that began when the motorist was clocked traveling 73 miles per hour, on a 55-mile-per-hour four lane highway at 11 p.m. on a weekday night.
I caution you to read on. This pursuit hasn’t ended yet. To rely on this case for the proposition that you are now free to ram a fleeing motorist with your cruiser could prove to be a very bad decision.
Before we analyze the Court’s decision to help you understand more clearly what this decision means to you, let’s agree that ramming the motorist from behind was a “seizure.” A Fourth Amendment seizure occurs when there is a governmental termination of freedom of movement through means intentionally applied. Let’s also agree that the court in which you are sued will analyze a claim of excessive force in the course of making this type of seizure under the “objective reasonableness” standard. In other words, were the officer’s actions “objectively reasonable?” If that standard is too ambiguous to help you make a decision in a split second, the better question to ask yourself might be whether the motorist’s actions had risen to a level warranting deadly force?
This last question demands your attention because I suspect your academy training on deadly force, like mine, focused on Tennessee v. Garner. In that case, the Supreme Court held that it was unreasonable to kill a young, slight, and unarmed burglary suspect by shooting him in the back of the head while he was running away on foot and when the officer could not reasonably have believed that the suspect posed any threat. In fact, the officer never attempted to justify his actions on any basis other than the need to prevent the suspect’s escape. Garner might have taught you that certain conditions must be met before you may use deadly force. First, the suspect must have posed an immediate threat of serious physical harm to you or others. Second, deadly force must have been necessary to prevent escape. And third, where feasible, the officer must have given the suspect some warning.
If you analyze our fleeing motorist this way, you might say that the motorist did not pose that type of inherent threat to society, since prior to the car chase he had committed only a minor traffic offense and, as far as the police were aware, had no prior criminal record. If the speeding motorist was not your typical “fleeing felon,” your academy training might lead you to conclude that deadly force was not justified.
If that’s what you said, you are correct. However, the Supreme Court in this case said that Garner did not establish rigid preconditions whenever an officer uses deadly force. Instead, it said Garner was simply an application of the Fourth Amendment’s “reasonableness” test to the use of a particular type of force in a particular situation. So, instead of permitting deadly force only when it is necessary to prevent escape because of what the suspect did prior to flight, this Supreme Court said that it was the suspect’s flight itself that posed the threat of serious physical harm to others which justified the officer’s use of deadly force.
Under this analysis, it is does not matter whether your actions constituted deadly force. All that matters is whether your actions were reasonable in light of the facts and circumstances confronting you at that moment. So, in judging whether the Georgia deputy’s actions were reasonable, the Court need only have considered the risk of bodily harm that the deputy’s actions posed to the motorist in light of the threat to the public that the deputy was trying to eliminate. After closely scrutinizing the video from the deputy’s cruiser camera, the Court held that it had little difficulty in concluding it was reasonable for the deputy to take the action he did.
If that’s not powerful enough for you, the Court went further to hold that police need not back off and end a chase merely to avoid the potential injury that might result from continuing it. After all, one can make a legitimate argument that ending the chase would eliminate the potential harm to the public that continuing the chase might pose. Instead, it said the police need not have to take that chance and hope for the best. Why? First, the Court said that whereas the deputy’s action – ramming the motorist’s car off the road – was certain to eliminate the risk that the motorist posed to the public, ending the chase was not. Second, the Court said that it was, and get this, “loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger.” (The Court called this a “perverse incentive.”)
Instead, the Court laid down what it considered a “more sensible rule.” “A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”
After that very clear and newly created rule, I could end this article on a high note by saying something like “go gettem’ boys and girls.” And while that might be fun, it wouldn’t be fair. There is more to this decision than meets the eye. The Supreme Court was without any doubt persuaded by the video from the deputy’s cruiser camera. I might suggest that it was so persuaded by the video that without it, this case would have come out very different. In fact, Justice Breyer wrote in his concurring opinion that “watching the video footage of the car chase made a difference to my own view of the case.”
I’ll wrap this up by suggesting that before ramming your cruiser into a fleeing motorist’s rear-end, consider that your actions will be judged on the facts and circumstances of your case. Also, remember that a good trial lawyer will have months to digest those facts and circumstances and you will have had only moments. This decision will not save from you from being sued. Even though the Supreme Court said that ramming your cruiser into the rear end of a motorist’s car traveling 80 miles per hour is less dangerous than shooting at a person and even though it said that a fleeing motorist is more dangerous than a fleeing robbery suspect, I suggest you decide for yourself whether these conclusions were correct. After all, you have been in car chases and the Justices of the Supreme Court probably have not.
The facts of your case will be different from the facts in this case. If I were representing the injured motorist in his suit against you, you can bet I would focus on those differences in order to convince a Rhode Island court of four things. First, I would argue that my client’s flight was not nearly as dangerous as the one in Georgia and therefore did not threaten the lives of innocent bystanders to the degree that the motorist did in that state. Second, I would argue that what you did was clearly excessive in light of my client’s flight. Third, I would argue that because of the first two arguments, you clearly violated my client’s constitutional rights by using more force than was justified to affect an arrest. And finally, I would argue to the judge or jury that you must pay for the damages my client suffered for two very good reasons. First, justice demands my client be made whole. Second, only by making the police pay a heavy judgment can the judge or jury assure that Rhode Island police officers will stop ramming motorists who have broken a few traffic offenses off the road and into wheel chairs.
Okay, if you have to think about this case during a high-speed pursuit, and I strongly encourage you to focus on your driving instead, just remember this. Sure, the United States Supreme Court has made it clear that it’s the chase itself that determines the type of force you may us. The reason the chase began in the first place isn’t really the issue. But if it were me behind the wheel of the cruiser, I would sleep a lot easier after crashing it into a fleeing motorist if the motorist had been fleeing from something a little more substantial than 18 miles per hour over the speed limit, blowing a few red lights, crossing the center lane a few times, and denting my patrol car.
Special Attention to your state’s statutes and department’s policies
Because I live in Rhode Island, I will use its law to make a very important point. Search your State’s statutes for a similar law. You might be surprised to find something similar to this one.
Rhode Island General Law § 31-27-4.2 governs high speed vehicular pursuits by police and limits such conduct to those situations which involve:
1. the attempted apprehension of persons wanted for felonies or misdemeanors that “threaten, have threatened, or will threaten the health, life, or safety of a person(s); or
2. the pursuit of a motor vehicle operator who has committed “flagrant moving violations which have endangered the lives and safety of others, and was operating in a reckless manner before the pursuit was initiated, and is continuing to operate in a manner that recklessly endangers the lives and safety of others.”
It appears according to this statute that there are no other lawful reasons to engage in or continue a high speed pursuit. In other words, if what you have in front of you does not meet these minimum requirements, do not pursue. This statute is ripe for an article all of its own. Let’s save that for another day. In the meantime, take a close look at its language and you should recognize right away that this statute invites argument.
Of course, this statute has no effect on the excessive force discussion above. There is very likely to be a situation where your pursuit met the statutory minimum requirements but was an unlawful use of force nonetheless. Again, the situation dictates, not your State’s statutory guidance, whether your force was reasonable under the Fourth Amendment. Nevertheless, it behooves you to be familiar with your own statute(s) in its entirety if you have one. Clearly, Rhode Island’s statute not only sets forth the minimum requirements that must exist before an officer may engage in a high speed pursuit, it sets forth the requirements the officer must comply with during the actual pursuit (not included above).
Your department might have its own policy on high speed pursuits. Some jurisdictions simply do not allow high speed pursuits under most circumstances. Again, departmental policies and procedures are not relevant to a Fourth Amendment argument. In other words, you need not have violated a departmental policy in order to be adjudged liable for using excessive force to affect a seizure.
This article is not intended to provide you with legal advice. Instead, it is intended to make you more aware of the dynamic body of law that guides your decisions on the street. Like a ballistic vest locked in your trunk during a gun fight, this article is intended to remind you that knowing the law is helpful only when you possess that knowledge before you make a decision, not after.
About the author
John R. Grasso is an apprentice attorney practicing law in Rhode Island. He is a retired patrolman with the Cranston (RI) Police Department
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