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The · Psychohistorian


Eight out of nine supreme court justices ...

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... have never passed on a two lane road.

At least, that's the conclusion I have to reach after watching the following video presented as evidence in Scott v Harris. The video is taken from the dashboard cameras of two police cars, in pursuit of a speeder who tries to get away. The question is whether the driving is dangerous enough to justify the police bumping the suspect's car off the road, turning him into a quadriplegic. The court is shocked, even frightened, by what is going on:

"Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury."

So I watch the video, hoping to see an exciting Hollywood style car chase. I see the suspect signal, pull out into the left lane, pass, then pull back into the right lane. Boring. Oncoming cars ... will the suspect try to squeeze between them and the slower moving car ahead of him? No, nothing so interesting; he waits for them to go by before passing. Later on, he does pass in the presence of oncoming traffic - but only because there's a convenient third middle lane he can pass in. He pulls out into an abandoned shopping center ... a second cruiser goes past, turns around to head him off, almost rams hims, but he manages to avoid a head on collision with only a minor dent. Okay, that was a little exciting, but it wasn't the suspect doing something dangerous, it was the policeman driving the wrong way on a ramp.

I keep waiting for the interesting part. I haven't even seen any innocent bystanders, except for cars safely pulled over for the police sirens. Something here must be "frightening", right? But no. It keeps going like this - pretty much normal two lane rural driving - until the end. The only frightening part is when the police finally bump the guy off the road, and the second police car almost hits the first one.

It has to be admitted that some of the stuff the policemen do isn't so safe - unlike the suspect, they don't always pull back into the right lane after passing, and the guy who drove the wrong way on the ramp probably owes his life to the suspect's quick reactions - but I come away in rare agreement with Justice Stevens:

"A jury could certainly conclude that those motorists were exposed to no greater risk than persons who take the same action in response to a speeding ambulance, and that their reactions were fully consistent with the evidence that respondent, though speeding, retained full control of his vehicle."

Keep in mind this case is at the summary judgement stage: the decision is not whether or not the plaintiff - here the suspect that was turned into a quadriplegic - wins, but just whether or not he gets to sue at all. If he does, he still has to get the jury to decide the facts in his favor - namely, that his actions in the chase didn't justify deadly force on the part of the police.

But no, despite contrary findings by both lower courts and by Stevens, the majority concludes that "no reasonable jury" could find that the suspect was driving safely enough not to merit deadly force. I guess none of the judges on either of the lower courts nor Stevens are reasonable. Okay, I normally agree in the case of Stevens, but all of them? I think it's more likely that, living in the less populated south rather than DC, they just happened to know how to drive on two lane roads.

My own conclusion is that this videotape just goes to prove yet again that the folks who wrote the Constitution were pretty sharp in requiring that juries, rather than judges, decide the facts.

On the plus side, recent opinions have been better written than the ones I complained about a while back. Well, the ones which rely on logic rather than videos have, at least.

The opinion:

http://www.law.cornell.edu/supct/html/05-1631.ZS.html

The lower court's summary of the facts, which seem to me to describe the videotape perfectly:

"[T]aking the facts from the non-movant’s viewpoint, [respondent] remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. He did not run any motorists off the road. Nor was he a threat to pedestrians in the shopping center parking lot, which was free from pedestrian and vehicular traffic as the center was closed. Significantly, by the time the parties were back on the highway and Scott rammed [respondent], the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections."
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[User Picture]
On May 24th, 2007 02:15 pm (UTC), dcltdw commented:
I'm a litle bit confused.

Is the point of the Supreme Court justices that the responding officer was operating his vehicle in a reckless manner such that it endangered people around him, or that the suspect's actions did not merit deadly force?

I'd say that the responding officer was driving correctly.

Whether or not it merited ramming the other car, that I can't comment on -- I don't know enough about law enforcement and the risks/outcomes of high-speed chases.
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On May 24th, 2007 02:47 pm (UTC), kirisutogomen replied:
My understanding is that the question is whether the suspect was driving in such an obviously insane way that there could be no debate, i.e., that all reasonable people would naturally agree that the suspect's actions merited deadly force.

If it is at all questionable, that's a question of fact, which in our system is supposed to be the job of juries, not judges. So if you need knowledge about the risks/outcomes of high-speed chases in order to make a judgment, that makes it a question of fact, and the Supremes should leave it to the jury.

I've just realized that what may have confused you was the word "respondent." That's a legal term and does not mean the responding officer. In this case it means the suspect. He's the "respondent" in that he's responding to the appeal filed by the cop.
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On May 24th, 2007 02:51 pm (UTC), dcltdw replied:
Oooh. Now to re-read.
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On May 24th, 2007 03:12 pm (UTC), dcltdw replied:
Ohhh, okay, this is starting to make more sense.

So let's see... Cael writes:

My understanding is that the question is whether the suspect was driving in such an obviously insane way that there could be no debate, i.e., that all reasonable people would naturally agree that the suspect's actions merited deadly force.

and that leads me to juxtapose that next to Justice Stevens' remarks:

"A jury could certainly conclude that those motorists were exposed to no greater risk than persons who take the same action in response to a speeding ambulance, and that their reactions were fully consistent with the evidence that respondent, though speeding, retained full control of his vehicle."

I see two things wrong in there.

A jury could certainly conclude that those motorists were exposed to no greater risk than persons who take the same action in response to a speeding ambulance

The respondent is not trained in high speed driving, whereas EMTs are.

respondent, though speeding, retained full control

That's internally inconsistent. You can't be speeding as an untrained driver and retain full control.

You may be lucky and not lose control, but that's different.

Hmm, and so (provided I'm reading this right, which I am not at all convinced I'm putting these pieces together properly -- thanks for the help!), the Court says

"Far from being the cautious and controlled driver the lower court depicts, what we see on the video more closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury."

I would not describe the chase as Hollywood-style; that seems like fishing for an emotional response. I'll agree that the driver is neither cautious nor controlled (see above). Were police officers and innocent bystanders placed at great risk? Yes, no question: it wasn't a divided highway.

To me, I'll freely admit that this kind of high speed maneuvering happens routinely -- but I don't see how that's relevant to a legal opinion. Nrr, text sucks because I'm losing nuance: I'm not trying to say "dude, you're wrong, pshaw!", but rather, "I don't know how common practices are supposed to influence legal rulings".
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On May 24th, 2007 05:38 pm (UTC), greyautumnrain replied:
speeding verses control
That's internally inconsistent. You can't be speeding as an untrained driver and retain full control.

Umm, says who? What is so magical about the posted speed limit that you are not in control of your vehicle the moment you are over it?

Take route 2, a road that I am sure we are all familiar with. During morning rush hour I know from experience that going heading away from the city most cars are going over 70 miles per hour. The guys in the right lane might be doing 80 miles per hour, and there may be some old folks in the left lane doing 55 or 60. The posted speed limit on that stretch of road is 55 miles per hour. Are you saying that everyone except Gramps in his Crown Vic doing 55 is not in control of their car?

How about if the state changed the speed limit on that road to 65 miles per hour instead of 55 miles per hour, but everyone was driving exactly the same way. Would now 40% of the people suddenly be in control of their cars as opposed to just Gramps because they aren't technically speeding anymore? How about if that identical stretch of roadway where in the UK, where the speed limit would be 70 miles per hour. Is it suddenly the case that the average driver is now in control of the car because they aren't speeding, even though they are driving exactly the same way?

And by the way, how do you know the driver isn't trained in high speed driving? I'll admit, I haven't read all the documents surrounding this case, but its possible that he could be. You don't need to be a police officer or an EMT; psychohist has taken special driving courses, its not that uncommon. Would you change your opinion of his driving if you knew he had special training?

In other words, I think you are wrong. There is a difference between speeding (exceeding the legally posted limit) and not being in full control of your vehicle. In fact, I would argue that in this country the posted speed limits are often well below the speed that the average driver can drive in a reasonably safe and controlled manner, but that's getting a bit off track.
— On May 24th, 2007 05:57 pm (UTC), dcltdw replied, “Re: speeding verses control” · Expand
— On May 24th, 2007 06:19 pm (UTC), greyautumnrain replied, “Then what the heck are you saying?” · Expand
— On May 24th, 2007 06:32 pm (UTC), dcltdw replied, “Re: Then what the heck are you saying?” · Expand
— On May 24th, 2007 07:13 pm (UTC), greyautumnrain replied, “Re: Then what the heck are you saying?” · Expand
— On May 24th, 2007 07:36 pm (UTC), dcltdw replied, “Re: Then what the heck are you saying?” · Expand
— On May 24th, 2007 07:38 pm (UTC), dcltdw replied, “Re: Then what the heck are you saying?” · Expand
— On May 24th, 2007 08:13 pm (UTC), greyautumnrain replied, “you keep changing your arguement” · Expand
— On May 24th, 2007 08:27 pm (UTC), dcltdw replied, “Re: you keep changing your arguement” · Expand
— On May 24th, 2007 08:54 pm (UTC), greyautumnrain replied, “Re: you keep changing your arguement” · Expand
— On May 24th, 2007 08:19 pm (UTC), kirisutogomen replied, “Re: Then what the heck are you saying?” · Expand
— On May 24th, 2007 08:37 pm (UTC), dcltdw replied, “Re: Then what the heck are you saying?” · Expand
— On May 24th, 2007 08:56 pm (UTC), greyautumnrain replied, “Re: Then what the heck are you saying?” · Expand
— On May 24th, 2007 09:00 pm (UTC), treptoplax replied, “Re: Then what the heck are you saying?” · Expand
— On May 24th, 2007 08:39 pm (UTC), psychohist replied, “Re: Then what the heck are you saying?” · Expand
— On May 24th, 2007 09:05 pm (UTC), dcltdw replied, “Re: Then what the heck are you saying?” · Expand
— On May 26th, 2007 04:17 pm (UTC), kirisutogomen replied, “Re: Then what the heck are you saying?” · Expand
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On May 24th, 2007 04:50 pm (UTC), treptoplax commented:
The whole premise of the defense - that if the suspect's driving wasn't an immediate danger, deadly force may not be used - has always struck me as dubious. Surely, if we have a hard-and-fast rule that police may not, by the mere fact of a suspect evading arrest, use dangerous means to stop him, the predictable result will be more accidents, not less, as criminals are thus encouraged to flee the police.


That being said, as to the matter of fact, how can it be obvious if you can't get 9 Justices to agree on it? Um, duh?
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On May 24th, 2007 07:57 pm (UTC), kirisutogomen replied:
This is what amuses me about this ruling. What we have is a question of whether something is so blatantly obvious as to deserve summary judgment. Now, there's a line between blatantly obvious and almost-blatantly-obvious, such that things near the line are teetering on the boundary between summary judgment vs. needing to go through an actual jury trial. And just as with any other fine-grained legal distinction (the minimum doubt that is reasonable doubt, how improbable probable cause can be, etc.) there are going to be cases that ride the edge sufficiently closely that appeals will be heard by every level of appeals court. The issue at hand is riding the edge between incredibly obvious and flagrantly obvious.

And now apparently the answer is that all but one person agrees that there is no room for reasonable disagreement. The irony!
On May 24th, 2007 08:12 pm (UTC), treptoplax replied:
So we have in fact learned one interesting thing; that most of the Court apparently thinks Justice Stevens is a loon.
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On May 24th, 2007 08:27 pm (UTC), greyautumnrain replied:
Indeed. It must make for interesting days at the office.
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On May 24th, 2007 08:30 pm (UTC), psychohist replied:
Possibly.

I think it's more likely that it's at least partly a tactical decision by Breyer, Ginsberg, and possibly Souter. By finding that the suspect was endangering people, they prevent the question of qualified immunity from being reached.

The reason that may be important is that, I think, that Scalia, Thomas, Roberts, and Alito were prepared to substantially expand qualified immunity, and that that might be why this case was taken in the first place. I'm pretty sure Breyer and Ginsberg don't want to see it expanded.

I think they're opening a can of worms, though. What this decision basically says is that judges can rule on documentary evidence at the summary judgement stage without consulting a jury. Since jury trials are expensive and time consuming, there will be a lot of pressure to do so. That will significantly degrade the right to a jury trial, which I don't think is the intent of the judges.

I expect to see that question back in the Supreme Court in about three years at the most.
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On May 24th, 2007 08:39 pm (UTC), dcltdw replied:
*raises hand*
What's qualified immunity?

(Yay law lessons through lj! Or something.)
— On May 24th, 2007 08:56 pm (UTC), psychohist posted a reply · Expand
— On May 24th, 2007 08:59 pm (UTC), dcltdw posted a reply · Expand
On May 24th, 2007 09:11 pm (UTC), treptoplax replied:
Ah! I'm pretty sure I disapprove of that, but it would explain things a bit.
— On May 25th, 2007 02:20 am (UTC), psychohist posted a reply · Expand
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On May 24th, 2007 08:18 pm (UTC), psychohist replied:
The whole premise of the defense - that if the suspect's driving wasn't an immediate danger, deadly force may not be used - has always struck me as dubious.

The defense was just asking that the court use the same legal reasoning as a previous opinion on use of deadly force. Scalia's majority opinion basically says that was a case specific example of reasoning, and implies he might allow deadly force in situations other than that previous opinion covered - in other words, he agrees that it's dubious.

But then he pretty much goes ahead and uses that reasoning anyway.

There are actually other questions that are not reached in the opinion which probably should be. For example, I think Breyer makes a good point about how it might be easier in some cases to resolve the qualified immunity question if the facts are disputed, even though that's not currently allowed by Supreme Court precedent. I'm left with the general impression that the court was overwhelmed by actually having a video to see, and then forgot to do their job on interpreting the law.
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On May 24th, 2007 11:06 pm (UTC), greyautumnrain commented:
Color me cynical
Warren said I should post this...

I watched the video again. The first time I watched it, it was over his shoulder, so I got a closer look this time. The car looks like a Cadilac or something... or to put it as I put it to Warren 'it looks like a black person's car'. That is to say, it looks like a make of car that is generally more popular among the black population. Now, I have no idea what the actual race of the respondent is, but its clearly dark out in the video, so maybe the police didn't either, but they clearly saw the type of car. Given that this chase took place in Georgia, I am suspicious that one factor at play here that may have contributed to the decision to use deadly force was that in addition to speeding the respondent may have been suspected of committing another common "crime"... DWB.
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On May 25th, 2007 02:25 am (UTC), psychohist replied:
Re: Color me cynical
This reminds me of a discussion of heavily smoked car windows I encountered on another forum. Evidently they're mostly used by black people, hoping that police will treat them less suspiciously if they can't see their race through the windows. Of course, then the police treat them suspiciously because they seem to be hiding who they are.
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