Vol. 22 No. 5- U.S. supreme court approves pursuits to protect the Public

April 30, 2007

In a nearly unanimous decision (8-1), the United States Supreme Court, on April 30, 2007, ruled that a deputy sheriff’s attempt to stop a fleeing suspect by forcing him off the road was reasonable because the fleeing suspect posed a substantial and immediate risk of serious physical injury to the public.

In the case of Scott v. Harris, the Court reversed both the federal District Court and the Eleventh Circuit U. S. Court of Appeals and granted summary judgment on behalf of the deputy and others, despite the fact that the deputy’s actions caused the respondent to lose control of his vehicle, which then left the roadway, ran down an embankment, overturned, crashed and left the respondent a quadriplegic.

Videotape evidence

The Court noted that normally in qualified immunity cases, “courts are required to view the facts and draw reasonable inferences in the light most favorable to the party opposing the [summary judgment] motion.  In qualified immunity cases, this usually means adopting.the plaintiff’s version of the facts. There is, however, an added wrinkle in this case: existence in the record of a videotape capturing the events in question.”  The Supreme Court went on to point out that “respondent’s version of events is so utterly discredited by the record that no reasonable jury could have believed him.  The Court of Appeals should not have relied on such a visible fiction; it should have viewed the facts in light depicted by the videotape.”

“When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”  In addition to all else, this case proves the benefits to law enforcement when it can justify its actions through the use of audio and/or videotape evidence.

Use of Force

Although the Court does not explicitly state that the deputy’s actions constituted the use of deadly force, it implies it and then states that the primary issue is whether the amount and type of force used was reasonable.  It rejecting the respondent’s argument that the use of deadly force was not justified under the U.S. Supreme Court’s decision in Tennessee v. Garner, 471 U.S. 1 (1985), the Court states that “Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officers’ actions constitute ‘deadly force’.” Rather, Garner was an application of the “reasonableness” test which is then to be applied to “the use of a particular type of force in a particular situation.”  The Court stated that “whether or not (deputy) Scott’s actions constituted application of “deadly force,” all that matters is whether Scott’s actions were reasonable,” under the circumstances presented.

The Court held that, “.Scott’s actions posed a high likelihood of serious injury or death to the respondent—though not the near certainty of death posed by, say, shooting a fleeing felon in the back of the head.,” as was the situation in Garner.  (Emphasis in original.)  “So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person?  We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability.”  Since it was the respondent who engaged in reckless, dangerous behavior, endangering officers and the public, “we have little difficulty in concluding it was reasonable for (deputy) Scott to take the action that he did.”

Terminate the Pursuit?

In response to the argument by Harris, that the innocent public could have been protected by the pursuit being ended by law enforcement, the Supreme Court stated there was no certainty that ending the pursuit would have ended the danger to the public.  “We think the police need not have taken that chance and hoped for the best.  Whereas Scott’s action—ramming respondent off the road—was certain to eliminate the risk that respondent posed to the public, ceasing the pursuit was not.” (Emphasis in original.)

The Court also stated that, “.we are 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.  It is obvious the perverse incentives such a rule would create..”

“(W)e lay down a more sensible rule:  A police officer’s attempt to terminate a dangerous high-speed 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 of death.”


The decision to pursue a fleeing suspect continues to be one of the most significant decisions a peace officer must make, and must make in a split second.  The Supreme Court has assisted officers in making this decision by articulating circumstances when a pursuit is justified because allowing the suspect to flee poses a greater danger to society, than does the danger to him in attempting to stop him.  However, it must be remembered that the decision in Scott v. Harris is based upon federal law and an interpretation of the constitutional provision of the Fourth Amendment.  California , as well as all other states, can impose a more rigid standard and has done so, if one wishes to maintain the immunity from civil liability contained in the California Vehicle Code.

As of July 1, 2007, in order to retain immunity from civil liability, under state law, California law enforcement agencies must be in compliance with Vehicle Code sections 17004 and 17004.7, as established by SB 719.  Although there is, in our opinion, nothing in the new law which substantially alters what has been the practice in California for the past dozen years, there are new administrative and procedural obligations which must be implemented and followed.  It is imperative that all law enforcement agencies ensure that their current pursuit policies meet those requirements in order to maintain and secure the protections against liability for injuries caused to or by fleeing suspects.  As always, it is of great importance that you confer with your agency’s legal counsel to ensure compliance with these new provisions.

If you wish to discuss the details of this case, however, please feel free to contact me by phone, at 714 – 446-1400 or via e-mail at mjm@jones-mayer.com.