High-speed police pursuits and deadly force

Just a few terms ago — in a case called Scott v. Harris — the Supreme Court established a "balancing of risks" approach for determining whether the police violate the Constitution in taking steps to bring high-speed pursuits to a conclusion. Specifically, the Scott Court called on lower courts — and presumably juries — to balance the risk that police action imposes on the driver of the car against the risk to the police and public-at-large that permitting the pursuit to persist would allow to continue. Yet in its decision this past term in Plumhoff v. Rickard, the court jettisoned Scott's careful balancing in favor of an approach designed to give the police substantial leeway in terminating chases. While there might be policy reasons for adopting such a rule, the court at least should have explicitly embraced them and admitted that it was breaking with prior precedent.

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The Plumhoff Court paid little heed to facts that suggest that the police action went well beyond the police response in Scott. First, police in Plumhoff fired their guns at the fleeing driver, while the police in Scott undertook a maneuver that would cause the fleeing car to spin out of control. The court in Scott emphasized the comparative reasonableness of the police action there as posing merely "a high likelihood of serious injury or death" to the driver, as compared to an action like "shooting a fleeing felon in the back of the head," that would impose upon the driver "the near certainty of death." In Plumhoff, the police fired not one shot, but 15 shots. The Plumhoff Court failed to acknowledge the very distinction that it had emphasized in Scott.

Second, the driver was the only occupant of the fleeing car in Scott. The car in Plumhoff, by contrast, also contained a passenger. Thus, the police action to terminate the pursuit put at risk not just the fleeing driver but also his passenger. To be sure, as the court correctly noted, "it would be perverse if [the driver's] disregard for [his passenger's] safety worked to his benefit." Even accepting this, however, does the fact that police bullets struck the passenger as well as the driver not suggest at least the possibility that a jury might have found the police action in Plumhoff too risky under the circumstances?

The Plumhoff justices seem to have relied upon police video of the pursuit and its aftermath to conclude both that the risk imposed on the public was large and that the police action was constitutionally reasonable. To be sure, the court in Scott also relied on video evidence (a trend that is likely to grow in the wake of these cases). At the same time, one wonders whether, under Scott's framework, it is in fact clear that no reasonable jury could look at the facts and conclude that the police had gone beyond what was necessary to terminate the risk to the public.

The Plumhoff Court moved the fulcrum of Scott's balancing test so as to shield police impositions of greater risk from liability. The court's decision is a sweeping victory for law enforcement authorities. Indeed, Plumhoff included an alternative basis for its ruling in favor of the police: Even if there was a constitutional violation, the violation was not "clearly established" as required by law, so that the police were entitled to immunity from suit. The court could have decided the case on that basis alone, but evidently wanted to give enforcement authorities guidance, and ultimately assurance, about the breadth of actions they could take to terminate high-speed pursuits in the future.

None of this is to say that there is no possible justification for the outcome the court reached in Plumhoff. Perhaps the court is correct that we should afford law enforcement agents considerable breadth when having to make decisions so quickly during a high-speed chase. Even if that is so, however, the court should have been more explicit about what it was doing and admitted that it was simply abandoning the balancing-of-risks approach it delineated in Scott. Left with little to reconcile the seemingly conflicting analyses in Scott and Plumhoff, law enforcement officials may find themselves at the mercy of lower courts that may be influenced more by what they see after-the-fact on video recordings than by what they read in clear Supreme Court precedents. Clear Supreme Court precedent would also invite needed public debate over how properly to balance the risks to the public and police against fleeing drivers and their passengers (who might sometimes be innocent) during high-speed pursuits.

Nash is professor of law at Emory University School of Law. He specializes in the study of the federal courts and the judiciary, and legislation and regulation. He submitted an amicus curiae brief to the Supreme Court in support of the respondent in Plumhoff v. Rickard. Follow him at @JonathanRNash.

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