Pop quiz: the police try to pull over a car, and the driver, instead of slowing down, flees at high speed. The police should (A) Let him go; (B) Keep chasing him, and pray that he doesn’t kill anybody; or (C) Try to physically stop him by bumping his car with theirs.
Okay, here’s the real pop quiz: which of those will not result in taxpayers getting the shaft and trial lawyers making out like bandits? We know from experience that the answer is not (B). The Supreme Court heard oral arguments (PDF) on Monday in a case entitled Scott v. Harris to decide whether (C) is a viable option.
Harris was a 19-year old driver in Georgia who was doing 73 in a 55 MPH zone; when police tried to pull him over, he sped up and tried to escape, reaching at least 90 miles per hour on a two-lane road. Police officer Scott joined the chase, and after Harris drove recklessly for about 10 minutes, running red lights and weaving through traffic on the wrong side of the road, Scott bumped his car to stop him. Unfortunately, Harris lost control, crashed, and was rendered a quadriplegic. A sad ending for Harris, to be sure — but in a sane world, his fault. In our world, of course, he immediately sued Scott for violating his fourth amendment right not to be “unreasonably” seized.
Over at the Volokh Conspiracy, Orin Kerr, who co-represented Scott on appeal, has been blogging about the case. (Technically, the Supreme Court is addressing the narrower question of whether Scott is entitled to qualified immunity — but as any Overlawyered reader knows, lawsuits are crapshoots; if immunity is denied and Scott is forced to go to trial, the case will probably settle so that Harris can’t win the lottery from a befuddled jury.)
If the Supreme Court rules for the driver — though oral arguments didn’t seem to be in his favor — then trial lawyers will have successfully created a no-win scenario for police; criminals will be free to flee without fear of police pursuit. Maybe it’s just me, but that would seem to be a strange incentive: criminals who surrender peacefully go to jail, and those who refuse to submit are rewarded with cash or freedom.
- Related to this story, a reader (okay, Ted Frank) passes along another police chase lawsuit story which is (predictably) “Not about the money”: parents collect quarter-million-plus for kids’ deaths fleeing high-speed police chase [Robesonian Online]
20 Comments
I’m not sure why you think the attorneys will “make out like bandits” given the extraordinary number of hours they have likely put in to the case just to get to the Supreme Court. And even if they win, they would still have to try the case to verdict, get the verdict in the face of his comparative negligence, and then possibly defend the verdict on yet another appeal. When all is said and done, the two most likely outcomes are: Losing and getting nothing, or winning and being underpaid for their efforts. The least likely scenario is the one you suggest.
–Eric
No one seems to agree with me, but I think that an on-duty police officer driving a police car with lights and sirens should be absolutely immune from such lawsuits, along with his department. I don’t know why states aren’t passing such laws.
As an example, in my state of Michigan, the state, cities, townships, etc., are absolutely immune from lawsuits arising out of accidents relating to signage.
So if someone forgets to put up a stop sign and someone drives through the intersection causing an accident, you cannot sue the governmental agency responsible for placing the sign. (In Mi the government is only responsible for “actual defects” in the road which doesn’t include the shoulder, signs, or anything else)
I don’t know that it’s a good idea to let police officers run wild.
In the immunity world offered by Ima Fish, would it be permitted for the cops to run innocent drivers off the road to get to the criminal? Shoot through innocent cars to get the criminals? Set up caltrops and disable 2 dozen cars to get the bad guys? Bump the bad guy into a school bus loaded with kids?
“the two most likely outcomes are: Losing and getting nothing, or winning and being underpaid for their efforts.”
Which is why cases like this have SUCH a hard time finding lawyers… [rolleyes]
The background on the story indicates that the officer radioed in to superiors asking for permission to perform a wedge maneuver (a specialized means of getting the speeding car off the road), and was granted that permission. However, the officer then performed an entirely different, more dangerous maneuver, with the results described.
Given that the officer disregarded the direct instructions of his superiors in this affair, it seems to me that Harris at least deserves to be heard by a jury.
ASG, the officer is being sued for violating the constitutional rights of the defendant, not for failing to listen to his boss. The Fourth Amendment is not an employee handbook. (And he didn’t “disregard” what his supervisors “instructed” him to do; he judged it was too dangerous to do what they allowed him to do. And then he made a split second judgment that this option was safer.)
Invid, this case is about liability to the criminal, not to bystanders. I don’t think Ima was proposing complete immunity against the latter, just the former.
I don’t support unqualified civil immunity for police officers. That’s too much of an open season on the people: officers are capable of gross overreaction, and given prosecutor-police relations, criminal prosecution is not enough of a safety. I like the immunity idea when I consider the brands of scum who file suits against police, but I’m willing to hang on to this obviously problematic tort.
These chase cases are tough. I’d be interested to know what the actual public safety benefit of most of them are, compared to the threat created to the rest of us. Is the death of a child playing in the street worth the apprehension of a 19-year-old going 73 in a 55? And how many are motivated by a police officer’s desire for revenge instead of a concern for public safety or even respect for a lawful order? Is it so much to ask that officers remain reasonable, even during chases? On the other hand, the perverse incentives David notes are inescapable. Fascist that I am, on this one, my gut’s telling me that there shouldn’t be immunity for unbridled chases.
The problem isn’t that miscreants may be killed or injured, it is that innocent civilians may be (and often are) killed an injured. When one combines this with the fact that many police officers are, shall we say, less than brilliant people, the idea of giving them carte blanche to rampage through the streets at 100 mph because they’re angry at someone with a taillight out who “disrespected” them by failing to pull over seems a dubious one at best.
I’m not sure why this is a Supreme Court case. Isn’t there a relatively well-developed jurisprudence as to when a police officer can or cannot use deadly force on a fleeing suspect, and when (if ever) the officer can be held civilly liable for doing so? Yes, the police officer here used a car rather than a gun, but I’d be surprised if that amounted to a constitutional difference. I don’t know what that law would indicate in this case, so I’m not advocating for one result or another; I’m just wondering what’s so novel here.
David Wilson and Themanthemyth,
What David Nieporent says addresses your concern. The proposal is to ban criminals from suing the pursuing police for injuries the criminals suffer, not to immunize the police from any lawsuit.
Whether we want to grant them this, it’s hardly carte blanche to rampage anywhere at any speed.
fact that many police officers are, shall we say, less than brilliant people,
This is a cheap shot. It is easy for us to sit in the comfort of a cozy ofice or home and secomnd, third or even fouth guess some cop on the streets. When we come to a different conclusion or course of action than we come to, that must mean they are not bright.
While there are cops that may make questionable decisions or that may not have the IQ of a genius, they also don’t have the benefit of time when making decisions, or the benefit of the ability to appeal something that goes against them.
Every day in this country, some court somewhere reverses a decision of another lower court. Was the lower court comprised of “less than brillant people?” Are the lawyers that are said to provide ineffecive counsel less than brillant for their performance as well?
Saying that many cops are less than brillant is a cheap shot.
This reminds me of British bobbies being forced not to pursue motorcycle or bicycle thieves if said thief is not wearing a helmet. Pull down the temple.
Oh, and in response to TheManTheMyth’s comment that “police officers are, shall we say, less than brilliant people,” you should try counsel in my town.
There was a case around 1960 of a young man going off the highway and hitting a rock at nearly 100 mph. The police would have been sued except that the young man was not being chased. Those familiar with NY 97 will appreciate the folly of traveling at high speed on that road.
I saw the video in the Supreme Court Case. The bump did not cause the accident, the high speed did. Any minor distraction could be disasterous.
Police running wild make good B movies, but most Police departments have disciplinary procedures to enforce discipline. I doubt if law suits have any positive effect.
Eric, how much do you think it costs to care for a 20-year old quadriplegic for his entire life? The damage award could be quite large, no? (Moreover, this is a 1983 case, not a mere negligence case, so the statute provides for attorneys fees if he prevails.)
In any case, the point wasn’t whether this particular trial lawyer, who was faced with an appeal all the way to the Supreme Court, would receive a windfall, but whether trial lawyers in general, faced with such cases, would.
I would support complete immunity for the police from the criminal in question in any high speed chase situation, as anything lse creates perverse incentives.
I would go even further and make the criminal liable for collateral damage as well, with possible liability for the police if some fairly high standard can be met that showed that the police caused some damage purposefully (basically, a standard designed to prevent abuse such as an officer using th chase an as excuse to run down someon they don’t like or something).
Basically, we want high speed chases to be as rare as possible. The best way to do this is to make sure that they NEVER EVER EVER pay off for the guy trying to outrun the police.
A windfall for anyone is unlikely given the very high levels of comparative negligence. It’s not like defense counsel will roll over and play dead during trial. In the face of this, plaintiff’s counsel absorbs the risk of tens of thousands of dollars in disbursements that will never be returned with a defense verdict. The risk of such representation is spectacularly high.
the two most likely outcomes are: Losing and getting nothing, or winning and being underpaid for their efforts.
That doesn’t sound like two losing possibilities for those attornies. That sounds like two winning opportunities. Even if they lose the case and get nothing, the have the recognition / notoriety that comes with having a case heard at the SCOTUS. Do you think that has no value? You can bet your bottom dollar (pun intended) that it does, even if they lose. And if they win, now they are a firm that has WON a case at SCOTUS. That doesn’t even take into account the possibility that they win at SCOTUS and then also win at the liability lawsuit, which likely reaps bug bucks. Sorry, I disagree 100% with the “underpaid” view.
ASG, the officer is being sued for violating the constitutional rights of the defendant, not for failing to listen to his boss.
It seems to me these are not mutually exclusive (what, after all, is an illegal search, but a failure to “listen to the boss” and get a proper warrant?). Additionally, it seems clear from the background that the officer opted for deadly force, when he had received authorization for a lesser level of force. Again, since we are not (yet) talking about whether Harris should recover damages, but only about whether he should get his day in court, it seems far from clear to me that his case should be dismissed out of hand.
“I don’t know that it’s a good idea to let police officers run wild.”
I didn’t make myself clear. I’m only talking about immunity from civil lawsuits. I think that police departments can implement guidelines for high-speed chases, and if the officer fails to follow them, he can be disciplined or have his employment terminated.
What I’m against is a third party suing the police for an accident started by a criminal defendant.