Though two Justices tried hard in separate opinions to ease the impact of the Supreme Court’s rulng Monday on high-speed police chases, the fact remains that the main opinion had the unqualified support of six Justices and did lay down a hard-and-fast constitutional rule. Here is how the Court phrases the rule it established: “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.” Given the inherent dangerousness of most high-speed chases, this flat rule — the “Scott v . Harris” rule, as it may come to be known — appears to validate as “reasonable” any intentional police tactic of ending the chase by causing a wreck. The only apparent limitation on the choice of any specific tactic is the option that police have to adopt, or not to adopt, it.
Justice Stephen G. Breyer, in his concurrence, caught the essence of the new rule, by describing it both as “a per se rule” and as “too absolute.” Still, he sought to argue that the Fourth Amendment rule should depend upon the very specific facts of each high-speed chase. Justice Ruth Bader Ginsburg, in her concurrence, said “I do not read today’s decision as articulating a mechanical, per se rule.” But none of the five other Justices who comprised the real majority signed onto that assessment.
There is much in Justice Antonin Scalia’s main opinion about how the facts of this case look on close examination, and especially how those facts emerged in a videotape made from the dashboard of one of the pursuing police cruisers. But the articulation of the facts appears, in this instance, to serve only to justify a conclusion that the officer involved was entitled to summary judgment without any further exploration of facts at a trial. Justice John Paul Stevens in dissent suggests that the Court has engaged in an “unprecedented departure from our well-settled standard of review” of facts as found by lower courts, by setting itself up as a panel of “eight jurors on this Court.” That description, however valid, does not do away with the reality that this decision is a constitutional holdingmore than it is an essay about facts, and very likely will be applied by lower courts beyond its specific factual setting.
When Scott v. Harris, a Fourth Amendment decision, is read together with a 1998 decision in Sacramento County v. Lewis (finding no due process violation by an officer in a high-speed chase resulting in an accident unless the officer set out explicitly to harm the fleeing suspect), it is now quite clear that police discretion about use of “deadly force” will be the controlling legal factor in future high-speed chase cases.
Scott v. Harris, of course, is going to have a special place in the Court’s overall jurisprudence for another reason: it marked the first time that the Court provided a link to a video in evidence so that the public could view it for itself — here, the tape that the majority found so convincing as to what had happened on the highways and streets in and near Peachtree City, Ga., six years ago.
Also lurking in the case was the developing issue of whether the Court is about to abandon its two-step formula for examining “qualified immunity” cases. That is the “Saucier” formula, spelled out in Saucier v. Katz in 2001, that requires courts to first decide whether a constitutional violation occurred before they turn to whether it was “clearly established” at the time of the incident involved. Justice Breyer in his separate opinion called directly for the overruling of that approach, saying it leads the Court unnecessarily into making contitutional decisions. The majority, however, said the Court did not have to deal with it at this point. A group of 28 states, as amici in the case, had urged the Court to re-think this approach.
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