From today's decision in the police chase case, Scott v. Harris, comes this line that should not be remarkable, but is. "We think it appropriate in this [weighing] process to take into account not only the number of lives at risk, but also their relative culpability." In other words, society should be more concerned with the lives of innocent people than with the life of the person whose intentional, criminal conduct caused the danger in the first place. It is a comment on the state of the Supreme Court's "fleeing felon" jurisprudence that such an obvious statement needs to be made and that it is noteworthy.
The line of cases begins with Tennessee v. Garner, 471 U.S. 1 (1985). Justice White is generally high on our list of modern justices for his characteristically tailored opinions that avoid sweeping pronouncements. But even Homer nods, and Justice White penned a Brennanesque whopper in Garner. That case held that it was an unreasonable seizure in violation of the Fourth Amendment for police to use deadly force on a fleeing burglar, even if the only choices are to shoot him or let him escape. "It is not better that all felony suspects die than that they escape."
Not better in whose opinion? The Fourth Amendment uses the elastic word "reasonable," so the courts must employ some judgment. However, the rule that deadly force was authorized for felonies was consistent with the common law, and it was the law in about half the states at the time of the Garner decision. One would think that would have been sufficient to protect the state law against a constitutional edict. After all, the fleeing felon has the full capacity to render the use of force unauthorized. All he has to do is stop when ordered to stop. There is something surreal about allowing the person who is primarily at fault and who had a clear, valid choice to bring a suit against the person upon whom he forced the dilemma. The same is true when we allow such a suit to be brought for the death of the person who forced that choice.
Today's case involves the wrinkle that the escape attempt itself caused danger to others. Even the naive picture of a burglar as "nonviolent" and presenting no danger is absent here. Harris, by fleeing the police in a high speed chase, endangered the lives of others, knowing full well he was doing it. Without doubt, the police officer's action in running him off the road caused more danger to Harris than he caused to any other one person. But the court today took into account that all of this was Harris's choice, and therefore we should be less concerned with him than we are with the lives of people who were just lawfully driving down the road, minding their own business.
Also noteworthy is that the court is more sensible about the indirect effects of its ruling than the Garner court was. Garner sent a message to every criminal committing an offense classified as nonviolent that he can get away with it if he can just outrun the police. There is no need to fear being shot. Today's decision says "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...." Creating perverse incentives has not been much of an impediment in the past, and it is good to see that the court finally recognizes this.
Does Scott v. Harris establish a per se rule? The opinion rejects the plaintiff's rigid interpretation of Garner, saying, "Although respondent’s attempt to craft an easy-to-apply legal test in the Fourth Amendment context is admirable, in the end we must still slosh our way through the factbound morass of 'reasonableness.'" Yet in the end, the court does "lay down a ... 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." Evidently, the only fact that needs to be established is that the chase itself "threatens the lives of innocent bystanders." Justice Stevens offers the example of a chase through the Nevada desert as one that might not. Aside from country so desolate that there is practically no chance of anyone else being on the road, it is hard to imagine a police pursuit that does not endanger innocent people. If the rule of today's decision is interpreted and applied in terms as absolute as the concurring and dissenting opinions read it, then pursuit litigation by or on behalf of the perpetrator may be history.