Amicus Curiae Brief — Scott v. Harris

Y

No. 05-1631

IN THE

Supreme Court of the Anited States

TIMOTHY SCOTT, DEPUTY SHERIFF.

COWETA COUNTY. GEORGIA,

Petitioner.

Vv.

VICTOR HARRIS,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Eleventh Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

COUNTIES, NATIONAL LEAGUE OF CITIES,

COUNCIL OF STATE GOVERNMENTS,

INTERNATIONAL CITY/COUNTY MANAGEMENT

ASSOCIATION, U.S. CONFERENCE OF MAYORS,

AND INTERNATIONAL MUNICIPAL LAWYERS

ASSOCIATION AS AMICI CURIAE

SUPPORTING PETITIONER

CHARLES A. ROTHFELD RICHARD RUDA*

ANDREW J. PINCUS Chief Counsel

MAYER, BROWN, ROWE & STATE AND LOCAL LFGAI

MAW LLP CENTER

1909 K Street. N.W 444 North Capitol Street. N.W.

Washington, D.C. 20006 Suite 309

(202) 263-3000 Washington. D.C. 20001

DAN KAHAN (202) 434-4850

YALE LAW SCHOO! * Counsel of Record for the

SUPREME COUR Amici Curiae

ADVOCACY CLINIC

127 Wall Street

New Haven. CT 06511

(203) 432-4800

Wi. SON-EPES PRINTINGCO. INC —- (202) 789-0096 - WasrinGtTON.D C 20001

i

QUESTION PRESENTED

Amici will address the following question:

Whether the decision of a police officer to effect the ar-

rest of a fleeing motorist through a high-speed chase is rea-

sonable under the Fourth Amendment.

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TABLE OF CONTENTS

Page

A OEE FITTED crrvenstiocnctneninsinisnsecinessisnenatoaseeneniaits i

Oe FOF SE BR cccicensccssormviipiniasicinsbiannincteniennts iv

INTEREST OF THE AMICI CURIAE...........sccsecssscsossesseeseees l

NTI: scllciccinsivabsniscivitiiciitiateisataiaiiaaiibpiniinaibalabccninannaiiie l

INTRODUCTION & SUMMARY OF ARGUMENT ........... 3

FTE sncsnnsiiiscensininnnsaiinnininiainintatenninamnaciiai 6

I. POLICING TECHNIQUES THAT HAVE A

GENERALIZED IMPACT ON THE PUBLIC

ARE PRESUMPTIVELY REASONABLE

UNDER THE FOURTH AMENDMENT. ...............:000008 6

Il. HIGH-SPEED SEIZURES HAVE A

GENERALIZED IMPACT ON THE PUBLIC

AND ARE THUS PRESUMPTIVELY

NUTT esiictsincieiiaicilesiseiitisdatatsiakillitelitiaictinbiinineniisncdinnesin 9

A. High-Speed Seizures Create Risk Not Just For

Suspects, But Also for Members of the Public. ....... 10

B. The Political Process Imposes Significant

Checks On High Speed Car Seizures. ..................0+ 13

C. The Impact Of High-Speed Seizures On The

Public Is At Least As Generalized As That Of

Other General-Impact Policing Techniques

Held Reasonable By, This Court. ..............:.cccccsseeeees 16

Ill. DEPUTY SCOTT RESPONDED

REASONABLY TO A SERIOUS THREAT TO

Ee HITTITE i sicsiieuiientciliesisecnsbtinseiciioiainoeiintnaceneaiseiienainitabiiog 17

itirinispiiecevciinantinndensies chiguinoniiduinuneas 26

iv

TABLE OF AUTHORITIES - continued

Page(s)

Atwater v. City of Lago Vista, 532 U.S. 318 (2001)............ 19

Bd. of Educ. v. Earls, 536 U.S. 822 (2002)......6, 9, 16, 16-17

Bell v. Wolfish, 441 U.S. $20 (1979).........cccccsccssesseeeeseeeneeeee 6

Brosseau v. Haugen, 543 U.S. 194 (2004)........cceecceeeeeeeeees 24

California v. Hodari D., 499 U.S. 621 (1991) ......cceeeeeeees 10

City of Indianapolis v. Edmond, 531 U.S. 32 (2000).......... 25

Coolidge v. New Hampshire, 403 U.S. 443 (1971)............... 7

County of Sacramento v. Lewis, 523 U.S. 833

SEITTIE idipninnaichetiiasancetiitiidisindsseeabibiabenipebedanniaidtie 10, 19-20, 24

Delaware v. Prouse, 440 U.S. 648 (1979) .....cccceccseeeseeees 18

Graham v. Connor, 490 U.S. 386 (1989)................0.. 6, 18-19

Illinois v. Lidster, 540 U.S. 419 (2004)............00. 6, 8, 16, 18

Illinois v. Wardlow, 528 U.S. 119 (2000) ..........:ccccceeeeeeees 1]

Jones v. Chieffo, 833 F. Supp. 498 (E.D. Pa. 1993)............ 12

Michigan Dep't of State Police v. Sitz, 496 U.S. 444

ETT scinisdetinichanitasiiacehebiacttiiarbiainmrstno veninetinihisiapeltioneecane passim

National Treasury Employees Union v. Von Raab,

Rs cite ainninnieldelchaidaidtnctstainatiaatontentasitanete g

New Jersey v. T.L.O., 469 U.S. 325 (1985)............0... 6, 15-16

New York v. Burger, 482 U.S. 691 (1987) ............:::0000 9, 16

Samson v. California, 126 S. Ct. 2193 (2006) .............c0 18

Skinner v. Railway Labor Executives’ Ass'n, 489 U.S.

aiid dticinciscdiihsdninldiielnmasitiaeldudinintenintenidindainicn 18

South Dakota v. Opperman, 428 U.S. 364 (1976) ............. 18

Tennessee v. Garner, 471 U.S. 1 (1985) .........::cccccceee passim

United States v. Hensley, 469 U.S. 221 (1985)... 18

Vernonia School Dist. 47J v. Acton, 515 U.S. 646

Vv

TABLE OF AUTHORITIES — continued

Constituticn and Statutes

C3. COOUE, AGGIE, FY ccccrntssccpisccnnissitisividonsonnitiaeisuiiiaibia 6

Official Code of Georgia Ann. § 16-5-3(a).........:.ccceeeeeeee 23

Miscellaneous

Geoffrey P. Alpert, Nat'l Inst. Of Justice, U.S. Dept.

Of Justice, Police Pursuit: Policies and Training

CEST? accxnscraceccestejnusensiniehanbianniiagiaiiaaaaaaaeeaaass 11, 15

Robert Boyer, Crash Victim’s Sister Calls for Chase

Policy Changes, Times-News (Burlington, N.C.),

GUE, FE, FPO ccccnccscineticteipesssicmmsitiinmimasinidiidsaeiiaaaeiaaa 13

John Hart Ely, Democracy and Distrust (1980) .................... 7

Bill Graham & Glenn E. Rice, Loss of 4 Leaves Grief,

Shock; As Friends and Family Recall Wreck Vic-

tims, Some Have Questions About the Police

Chase, Kansas City Star, Sept. 22, 2006 ...............ece 13

Jennifer Griswold, Wreck Puts Pursuit Policy in Re-

view, The Oklahoman (Oklahoma City), Oct. 18,

BORG, Ct SDD .nccsasvtssciccnsicisiguinssiinliieiiniliaiiasiaiemimialiuedibias 13

Matthew J. Hickman & Brian A. Reaves, Bureau of

Justice Statistics, U.S. Dept. of Justice, Local Po-

lice Departments, 2003 (2006) ..........2ccceccccceeeeeeeceeee 14,15

Matthew J. Hickman & Brian A. Reaves, Bureau of

Justice Statistics, U.S. Dept. of Justice, Sheriffs’

DHi008, ZOOS CT) co ccccnsscsccssessessevnvactesunsstauanguinintiansan 15

A. Burton Hinkle, Editorial, Fewer Chases Could

Save Lives, Including Officers’, Richmond Times

Dispatch, Sept. 8, 2006, at A-1 1.0.0... ccecesseeeeennees 14

Dan M. Kahan & Tracey Meares, The Coming Crisis

in Criminal Procedure, 86 Geo. L.J. 1153 (1998).......... )

Dennis Jay Kenney & Geoffrey P. Alpert, A National

Survey of Pursuits and the Use of Police Force:

Data from Law Enforcement Agencies, 25 J.

CGD, SERIE, SRR ee ainctaesitaiiehitanertiincertinetiiiniantaitiainiass 15

vi

TABLE OF AUTHORITIES - continued

Seth Mydans, Alarmed by Deaths in Car Chases, Po-

lice Curb High-Speed Pursuits, New York Times,

Se RET Ul aiicdicnreeeriniteilaiineniigeidniehdineaetiennemesmans 12

National Highway Transportation Safety Administra-

tion, Traffic Safety Facts 2004 .........ccccccccccceseeeseees 11, 12

Dave Nicholson, Review Finds Lakeland Police Fol-

lowed Policy in Fatal Chase, Tampa Tribune,

IE A TAIT ssissetitliensinshitidittenhtinateagionteiigeinditennnmnes 14

Patrick Orr, Ada County Police Agencies Agree on

Plan for Hot Pursuits; Policy Aims To Minimize

Danger by Clarifying Who's in Charge and Limit-

ing the Number of Patrol Cars, |\daho Statesman

SR ES enna 14

Theodore O. Prosise & Ann Johnson, Law Enforce-

ment and Crime on Cops and World's Wildest Po-

lice Videos: Anecdotal Form and the Justification

of Racial Profiling, 68 Western J. Comm. 72

STD issih itashanascibiblignidantaliatiniansemenemnennesmeninenneenen 13

Dan Spice, Editorial, Deluge of Car Thefts Is Unfor-

givable, St. Petersburg Times (Florida), Sept. 24,

William Stuntz, Privacy's Problem and the Law of

Criminal Procedure, 93 Mich. L. Rev. 1016

SUITED cicidiicietansesidietiaaibiipiainiiuiapinlinisieanteidimameneburepetsiasemmneninaniaets 9

Jeremy Travis, Nat'l Inst. of Justice, U.S. Dept. of

Justice, Pursuit Management Task Force (1998).......... 19

United States Census Bureau, State and County Quick

EE eee Sener ne ee ee 23

Judi Villa, New Pursuit Policy Reduces Phoenix Po-

lice Car Chases, Arizona Republic (Phoenix),

aL Aes EE SIITEEEE © rsisasicnseapsinerimmatigunenninenrennidgeneeisnennimeneme 14

Silas Wasserstrom & Louis Seidman, The Fourth

Amendment As Constitutional Theory, 77 Geo.

SEY TT ridcisdiettttadanats bteerticeineemenitbanniinenimennneninne 8-9

INTEREST OF THE AMICI CURIAE

Amici are organizations whose members include state,

county, and municipal governments and officials throughout

the United States.’ They have a compelling interest in the is-

sue presented in this case: the standard under which a law en-

forcement official who engages in a vehicular pursuit result-

ing in injury to the fleeing suspect may be held liable under

the Fourth Amendment.

This case concerns an essential and longstanding tool for

enforcing and maintaining respect for the rule of law. In to-

day’s highly mobile society, vehicular pursuits are vital to

law enforcement’s ability to apprehend suspects, conduct in-

vestigatory stops, and enforce important traffic and safety

laws. The Court’s decision regarding the extent to which

such pursuits are subject to constitutional scrutiny under the

Fourth Amendment will directly affect amici and their mem-

bers: it will have an impact not only on the everyday deci-

sions of law enforcement authorities across the country in

conducting vehicular pursuits, but also on the ways in which

state and local governments regulate police practices. Amici

therefore submit this brief to assist the Court in the resolution

of this case.

STATEMENT

While patrolling a highway at night in Coweta County,

Georgia, Sheriff's Deputy Clinton Reynolds observed a car

traveling 73 mph in a 55 mph zone. Pet. App. 2a. To alert the

driver of his speed, Deputy Reynolds began to follow, flash-

ing his cruiser’s blue lights. In response, the speeding car

' Pursuant to Rule 37.6, amici state that no counsel for a party au-

thored this brief in whole or in part and that no person other than

amici, their members, and their counse] made a monetary contribu-

tion to its preparation or submission. The parties’ letters consent-

ing to the filing of this brief have been filed with the Clerk’s of-

fice.

2

accelerated and headed toward the populated area of Peach-

tree City. /d. at 2a-3a, 31a.

Deputy Reynolds caught up to the driver and turned on

his siren.’ The vehicle continued to flee, traveling well in ex-

cess of the speed limit. The driver crossed the double-yellow

line and passed cars on the wrong side of the road, breaking

several traffic laws. Pet. App. 2a, 31a. Approaching a red

light, the driver continued through the intersection, driving

around vehicles waiting for the light to change. Deputy Rey-

nolds alerted his dispatch that he was pursuing a fleeing sus-

pect. Ibid.

Petitioner Timothy Scott overheard Reynolds’ radio re-

port and, in a position to assist, joined in the pursuit. As the

fleeing car entered Peachtree City, it swerved into a drugstore

parking lot. Two Peachtree City police cruisers were already

in the lot, and together with Deputy Reynolds they. attempted

to box in the suspect’s car. Deputy Scott proceeded around

the parking lot to cut off the suspect’s exit. Pet App. 3a, 32a.

Though accounts differ slightly as to what happened

next, what is clear is that the fleeing suspect, encircled by

three police cars, exited the parking lot. When Deputy Scott

attempted to use his car to block the suspect’s escape, the

suspect collided with Deputy Scott’s car. Pet. App. 32a. The

suspect managed 10 get back onto the highway and once

again fled at a high speed. /bid.

Because he feared that the suspect posed an increasing

danger to the public (Pet. 5), Deputy Scott, now the lead car

in the chase, radioed for permission to perform a “PIT” (Pre-

cision Intervention Technique) maneuver. A PIT maneuver is

“a driving technique designed to stop a fleeing motorist

> Turning on the siren activated a video camera mounted in Deputy

Reynolds’ car, which recorded the ensuing chase. Though the court

below emphasized factual disputes between the parties, in reality

these disputes are slight. because the police video camera captured

vivid evidence of the events surrounding this suit.

3

safely and quickly by hitting the fleeing car at a specific

point on the vehicle, which throws the car into a spin and

brings it to a stop.” Pet. App. 3a. Deputy Scott’s request was

in accordance with his department’s policies on high-speed

pursuits, which provided that “deliberate physical contact be-

tween vehicles at any time may be justified to terminate the

pursuit upon the approval of the supervisor.” Jd. at 23a n.2

(quoting Coweta County Sheriff's Dep. Vehicle Pursuit Pol-

icy).

After receiving permission from his supervisor to em-

ploy a PIT maneuver (Pet. App. 4a) and ascertaining that no

other motorists appeared to be in the area (Pet. 5-6; see also

Pet. App. 11a), Deputy Scott decided to end the chase, which

had now stretched over nine miles. /d. at 2a. Due to the sus-

pect’s high rate of speed, Deputy Scott was unable to per-

form a PIT, but he did manage to make contact with the sus-

pect’s rear bumper. This caused the suspect to lose control of

his vehicle, which left the roadway and crashed. The suspect

~ respondent Victor Harris ~ was not wearing his seatbelt

(Pet. 6) and, though he survived the crash, he was rendered a

quadriplegic. Pet. App. 4a.

INTRODUCTION & SUMMARY OF ARGUMENT

The use of deadly force to end high-speed chases is very

different from the typical use of deadly force to effect an ar-

rest. The type of arrest at issue in Tennessee v. Garner, 471

U.S. 1 (1985), the principal authority relied upon by the

Eleventh Circuit, involved the concentrated use of force

against a single individual. A high-speed car chase over pub-

lic highways, in contrast, has a much broader impact: when-

ever police resort to this technique to effectuate a seizure,

they are necessarily creating risks not just for fleeing sus-

pects, but for members wf the general public as well.

The generalized impact of this policing technique creates

distinctive practical and political considerations that must be

taken into account under the Fourth Amendment. One is the

4

unique and complex balancing determinations officers must

make when they decide whether to effectuate a seizure by

these means. The fact-sensitivity of such determinations de-

fies any clear set of judicially administrable standards such as

those that regulate the use of a firearm to subdue a fleeing

felon. Another is the unique stake the public itself has in as-

suring that officers make this determination in a reasonable

way. In particular, because the public itself is placed at risk

by high-speed chases, there are strong political checks

against the use of this tactic absent a manifest gain to public

safety that outweighs the lethal risks involved. This factor,

too, is completely lacking in the sort of seizure exemplified

by Garner, and reinforces the conclusion that close judicial

oversight is unnecessary to assure that high-speed car sei-

zures will be conducted in a reasonable fashion.

I. Policing techniques that affect the privacy or liberty

of members of the public generally are presumptively rea-

sonable under the Fourth Amendment. The Fourth Amend-

ment prohibits searches and seizures that “unreasonably”

subordinate the liberty or privacy of individuals to the state’s

interest in public safety. Where, as in Garner, police use

concentrated force against a single individual, the public

faces little risk to its own liberty and privacy. As a result, po-

litical assent and oversight are unreliable means of assuring

that such seizures will be carried out in a way that strikes a

reasonable balance between liberty and order. But where a

police search or seizure technique does impinge significantly

on the privacy or liberty of the public, the approval of de-

mocratically accountable actors is strong evidence that the

technique in question is reasonable. Recent decisions uphold-

ing the constitutionality of law-enforcement checkpoints, so-

briety checkpoints, and drug testing of students for sports and

other extracurricular activities, have done so in large part on

this ground.

IJ. High-speed chases — and seizures affected through

them — have a generalized impact on the public, and are

5

therefore presumptively reasonable. A high-speed chase pre-

sents obvious and inescapable risks, not just to suspects but

to members of the public. Not surprisingly, members of the

public and their democratically accountable representatives

have taken an active interest in assuring that this technique

for effecting seizures is used only when the benefits it con-

tributes to public order outweigh its risks. Indeed, more than

90 per cent of police and sheriff's departments have created

polices to govern how officers should initiate, conduct, and

terminate high-speed chases. Such policies evince the reality

and effectiveness of political checks on seizures affected

through high-speed chases.

III. Because Deputy Scott responded reasonably to a se-

rious threat to public safety, he did not violate the Fourth

Amendment. The purpose of and the method used to execute

this seizure fell wel! within the zone of reasonableness. First,

law enforcement officers have a clear right to pursue a sus-

pect who recklessly flees by car. Second, high-speed pursuits

are often useful for enforcing criminal laws and traffic safety.

And once a chase begins, it is extremely dangerous and typi-

cally ends in a matter of minutes.

Deputy Scott had to make a split-second decision about

how to neutralize a serious threat to public safety. He initi-

ated the seizure of respondent only after ascertaining that no

other motorists appeared to be in the immediate area, thus

minimizing risk of harm to the public, though at considerable

risk to himself. This Court should avoid second-guessing his

decision, made with the permission of his supervisor and

pursuant to the local policy, to end the pursuit by making

contact with the fleeing suspect’s vehicle.

6

ARGUMENT

I. POLICING TECHNIQUES THAT HAVE A GEN-

ERALIZED IMPACT ON THE PUBLIC ARE FRE-

SUMPTIVELY REASONABLE UNDER THE

FOURTH AMENDMENT.

The Fourth Amendment protects persons from “unrea-

sonable searches and seizures.” U.S. Const. Amend. IV.

“(Tjhe standard of reasonableness governing any specific

class” of such activities, this Court has recognized, requires a

“balanc[ing]” of the affected person’s “privacy and personal

security” and government’s interest in securing “public or-

der.” New Jersey v. T.L.O., 469 U.S. 325, 337 (1985).

Although “‘not capable of precise definition or mechani-

cal application’”” (Graham v. Connor, 490 U.S. 386, 396

(1989) (quoting Bell v. Wolfish, 441 U.S. 520, 559 (1979))),

this balancing inquiry is appropriately sensitive to one factor

of particular relevance here: namely, the generality of a po-

licing technique’s impact on the public at large. The more

diffusely felt the impact of a policing technique is within a

community, the more reason there is to view approval of that

technique in the normal democratic political process as evi-

dence that the imposition it imposes on liberty and privacy is

indeed commensurate with the contribution it makes to pub-

lic order. See, e.g., Illinois v. Lidster, 540 U.S. 419, 426

(2004) (noting that “community hostility to related traffic

tieups” will assure that police use generalized motorist

checkpoints only when reasonable for apprehension of flee-

ing hit-and-run motorists); Bd. of Educ. v. Earls, 536 U.S.

822, 841 (2002) (Breyer, J., concurring) (citing approval in

“democratic, participatory process” as evidence of reason-

ableness of school drug-testing policy applied generally to

those involved in extracurricular activities).

Consistent with this principle, this Court has singled out

for greatest judicial scrutiny those policing techniques that

concentrate their coercive incidence on discrete individuals.

7

Because the interests of individual criminal suspects is usu-

ally a matter of indifference to the general public, it is unreal-

istic to expect “prosecutors and policemen * * * to maintain

the requisite neutrality” in determining whether the invasion

of privacy associated with a search of such a person’s resi-

dence is justified by the state’s need for evidence of crime.

Coolidge v. New Hampshire, 403 U.S. 443, 450 (1971). Ac-

cordingly, before they may search the residence of an indi-

vidual suspected of a crime, law enforcement authorities

must obtain a warrant by demonstrating probable cause to a

magistrate. See ibid; see also John Hart Ely, Democracy and

Distrust 96-97 (1980).

Members of the public are also likely .o be insufficiently

invested in — indeed, potentially even hostile to — the interests

of individual criminal suspects who are seized through the

use of concentrated deadly force. Accordingly, the constitu-

tionality of the use of a firearm to subdue a fleeing suspect

must comply with judicially enforced constitutional stan-

dards. See Garner, 471 U.S. at 11-12.’

> Garner, the decision principally relied upon by the Eleventh Cir-

cuit in its decision below, occupies one end of the spectrum of

Fourth Amendment reasonableness. In holding that “[a] police of-

ficer may not seize an unarmed, nondangerous suspect by shooting

him dead” (471 U.S. at 11), the Court found that all of the consid-

erations bearing on reasonableness pointed one way. Obviously,

the private interest is at its height in such a case, where a state ac-

tor applies force to the suspect with the intent to injure or kill. But

the Court found that the other relevant factors also weighted the

balance against finding such a shooting to be reasonable. The pub-

lic interest in effecting an immediate seizure is relatively low

“(wjhere the suspect poses no immediate threat to the officer and

no threat to others.” Jbid. And objective indicia of societal attitudes

toward the law enforcement conduct at issue in Garner, which

provide some basis for assessing the reasonableness of the seizure,

led to the same conclusion: the Court surveyed “the prevailing

rules in individual jurisdictions” (id. at 15-16) and found that “a

In contrast, where policing techniques do meaningfully

impinge on members of the public, this Court has generally

viewed the need for judicially enforceable standards as un-

necessary. In those circumstances, the incentive democrati-

cally accountable political actors have to avoid imposing re-

sented burdens on their constituents operates as an assurance

that the use of the technique, subject to whatever limits are

placed on it by political actors themselves, strikes a reason-

able balance between liberty and order.

In Lidster, for example, the Court upheld a police check-

point set up to investigate a hit and run accident. The Court

noted that no “rule is needed” to assure that such stops are

“reasonable, [and] hence, constitutional” because “practical '

considerations — namely, limited police resources and com-

munity hostility to related traffic tieups[,]” can be expected to

constrain the unwarranted use of this technique. 540 U.S. at

421, 426.

Likewise, law-enforcement officials need not obtain a

warrant or even have probable cause to stop motorists at so-

briety checkpoints (see Michigan Dep’t of State Police v.

Sitz, 496 U.S. 444 (1980)), or to search all persons entering

airports (see National Treasury Employees Union v. Von

Raab, 489 U.S. 656, 675 n. 3 (1989) (collecting cases)). Inso-

far as these policies impinge on the liberty and privacy of

members of the public at large, there is far less reason for

courts to doubt the determination of democratically account-

able officials that such policies strike a fair balance between

liberty and order. See generally Silas Wasserstrom & Louis

majority of the police departments in this country have forbidden

the use of deadly force against nonviolent suspects.” Jd. at 10-11.

See id. at 16-19. Accordingly, nothing before the Court in Garner

provided any assurance either that shooting a nondangerous sus-

pect is reasonable or that, in situations where police confront non-

dangerous suspects. constraints exist to check unreasonable law

enforcement behavior.

9

Seidman, The Fourth Amendment As Constitutional Theory,

77 Geo. LJ. T9, 95-96 (1988); Dan M. Kahan & Tracey

Meares, The Coming Crisis in Criminal Procedure, 86 Geo.

L.J. 1153, 1173-74 (1998).

When a law-enforcement policy affects a person other

than the average citizen, political assent remains evidence of

the policy’s presumptive reasonableness if there is a strong

alignment of interests between that person and members of

the public at large. In Vernonia School Dist. 47J v. Acton,

515 U.S. 646, 650 (1995), for example, the Court upheld a

drug testing policy for student athletes, in part because the

students’ parents, who can be presumed to value the privacy

of their children, “gave their unanimous approval” to the pol-

icy in @ public meeting. Likewise, deliberations in a “democ-

ratic, participatory process” also “revealed little, if any, ob-

jection” (536 U.S. at 841 (Breyer, J., concurring)) to the

school drug-testing recently policy upheld in Earls. The

“administrative search” doctrine, which treats warrantless

searches of regulated commercial enterprises (see, e.g., New

York v. Burger, 482 U.S. 691 (1987)), may be justified on the

analogous ground that members of the public as consumers

will resist unreasonable intrusions into the operations of such

businesses. See William Stuntz, Privacy’s Problem and the

Law of Criminal Procedure, 93 Mich. L. Rev. 1016, 1044-45

(1995).

To be sure, the generalized impact of a policing tech-

nique does not render it immune from Fourth Amendment

scrutiny. At a minimum, however, it is a factor that militates

strongly in favor of finding such acts to be reasonable.

Il. HIGH-SPEED SEIZURFS HAVE A GENERAL-

IZED IMPACT ON THE PUBLIC AND ARE THUS

PRESUMPTIVELY REASONABLE.

The source of the Eleventh Circuit’s error in this case

was its determination that a seizure effected through a high-

speed chase raises the same types of considerations as the

10

deadly-force seizure at issue Garner. Garner arose in a con-

text where many members of the public would have been

personally unaffected by the interests of the individual sus-

pect against whom deadly force was used. In sharp contrast,

the conduct and termination of a high-speed chase presents

inherent risks that are widely felt by the community; while

most people surely do not envision being chased from some-

one else’s yard by an armed patrolman (as was the suspect in

Garner), many people can imagine being threatened by an

unreasonably dangerous high-speed pursuit conducted on

public roads. As one might expect, members of the public

and their democratically accountable representatives have

manifested an intense interest in assuring that this means of

affecting an arrest is carried out only in circumstances where

public safety clearly warrants it. Under these circumstances,

the seizure at issue in this case should have been afforded the

presumption of reasonableness extended to policing tech-

niques that impinge on the liberty and privacy of members of

the public generally.

A. High-Speed Seizures Create Risk Not Just For

Suspects, But Also for Members of the Public.

The inherent dangerousness of the conduct and termina-

tion of high-speed chases means that this is a police practice

that affects the public generally. There frequently are com-

pelling reasons to initiate a high-speed chase, and there is no

Fourth Amendment limit on the decision by law enforcement

authorities to begin and continue a pursuit.‘ But there is no

denying that the risk posed to the public by high-speed pur-

suits is also considerable.

* The Court has made clear that “a police pursuit in attempting to

seize a person does not amount to a seizure within the meaning of

the Fourth Amendment.” County of Sacramento v. Lewis, 523 U.S.

833, 843 (1998) (citing California v. Hodari D., 499 U.S. 621, 626

(1991)).

1]

1. The ability to chase fleeing suspects is an essential as-

pect of effective law enforcement. As the Court has noted,

“(hjeadlong flight — wherever it occurs — is the consummate

act of evasion: it is not necessarily indicative of wrongdoing,

but it is certainly suggestive of such.” JIlinois v. Wardlow,

528 U.S. 119, 124 (2000). Studies, including one by respon-

dent’s expert witness, suggest that some 35 to 40 per cent of

high-speed chases are initiated to apprehend felons. Geoffrey

P. Alpert, Nat’! Inst. Of Justice, U.S. Dept. Of Justice, Police

Pursuit: Policies and Training 3 (1997). More often than not,

these pursuits are successful; in Metro-Dade, Florida, for ex-

ample, 75 per cent of high-speed chases led to apprehension

of the suspect. Jbid. And traffic violations may themselves be

very dangero.; offenses that pose a grave threat to public

safety. See National Highway Transportation Safety Admini-

stration, Traffic Safety Facts 2004 Data: Speeding 1. In

2004, speeding contributed to 30 per cent of all fatal crashes,

resulting in 13,192 lives lost. Jd. That same year, there were

an estimated 591,556 injuries in accidents where speeding

was a contributing factor.”

Moreover, speeding often is associated with alcohol or

drug abuse, which is itself a very significant cause of traffic

fatalities and injuries. See National Highway Transportation

Safety Administration, Traffic Safety Facts 2004 Data:

Speeding 3. See Sitz, 496 U.S. at 451 (noting that “[n]Jo one

can seriously dispute the magnitude of the drunken driving

problem or the States’ interest in eradicating it”); id. at 455

(Blackmun, J., concurring in the judgment) (“agree[ing] with

the Court’s lamentations about the slaughter on our highways

and about the dangers posed tc almost everyone by the driver

who is under the influence of alcohol or other drug[s]”).

* These data are available on request from the National Highway

Traffic Safety Administration’s National Center for Statistics and

Analysis, _http://www-fars.nhtsa.dot.gov/datarequests.cfm?State

id=0& yea r=2005.

12

Considering that speeding and drunk driving together cause

tens of thousands of deaths each year (see National Highway

Transportation Safety Administration, 7raffic Safety Facts

2004 Data: Speeding 1, Alcohol 1), an individual like re-

spondent who demonstrates impaired judgment by speeding

recklessly away from a law enforcement officer poses a clear

and immediate danger to other drivers and pedestrians. In

fact, this Court in Garner specifically referenced vehicle

safety to show that some misdemeanants pose a greater risk

to the public than do felons. Garner, 471 U.S. at 14.

2. Whenever automobiles travel at high speeds there is a

danger of an accident, however, and that is no less true of po-

lice pursuits. Such pursuits do, unfortunately, lead to fatali-

ties.” And in some instances these accidents cause injury to

bystanders or drivers of other vehicles.’

High-speed chases accordingly pose a substantial risk to

the public that is, in significant respecis, similar in kind to

that faced by the fleeing suspect and the pursuing officer.

Simply put, both the public and the suspect want officers to

refrain from engaging in unreasonably dangerous high-speed

chases and seizures that result in either driver losing control

and terminate in an accident and injury.

* From 2000 to 2005, there were an annual average of 362 pursuit-

related fatalities. These data are available on request from the Na-

tional Highway Traffic Safety Administration’s National Center

for Statistics and Analysis, http://www-fars.nhtsa.dot.gov/data_

requests.cfm?stateid=0& year=2005.

” See National Highway Traffic Safety Administration National

Center for Statistics and Analysis, http://www-fars.nhtsa.dot.

gov/data_requests.cfm?stateid=0&year=2005; National Highway

Traffic Safety Administration, Travel Safety Facts 2004, at 94. See

also Jones v. Chieffo, 833 F. Supp. 498, 509 (E.D. Pa. 1993); Seth

Mydans, Alarmed by Deaths in Car Chases, Police Curb High-

Speed Pursuits, New York Times, Dec. 26, 1992, at 1.

13

B. The Political Process Imposes Significant Checks

On High-Specd Seizures.

As might be expected, the visibility of high-speed pur-

suits and their effect on members of the public have gener-

ated significant political scrutiny of the practice. High-speed

pursuits on public roads create a spectacle, and the media has

eagerly covered these dramatic events.’ As a result, the pub-

lic understands the dangers involved in high-speed chases,

and communities have engaged politically on the question of

when to employ this seizure technique.

Surveying only the last ninety days of American news-

papers, numerous articles demonstrate the political salience

of high-speed pursuits. Communities across the country are

debating when the police should engage in such chases. In

Noble, Oklahoma; Kansas City, Missouri; and Burlington,

North Carolina, for example, city councils have heard public

complaints about recent high-speed pursuits, and the cities

have acted to investigate police procedures.’ Editorials on

both sides of the issue have appeared in local newspapers in

* Reporting on high-speed pursuits has become a fixture of local

news broadcasts, and an entire television show has been created to

air footage of police pursuits. See Theodore O. Prosise & Ann

Johnson, Law Enforcement and Crime on Cops and World’s Wild-

est Police Videos: Anecdotal Form and the Justification of Racial

Profiling, 68 Western J. Comm. 72, 74 (2004) (discussing

“World’s Wildest Police Videos,” a television show that in its first

year earned the second highest Neilson ratings in its timeslot).

* See Jennifer Griswold, Wreck Puts Pursuit Policy in Review, The

Oklahoman (Oklahoma City), Oct. 18, 2006, at 4D; Robert Boyer,

Crash Victim’s Sister Calls for Chase Policy Changes, Times-

News (Burlington, N.C.), Oct. 18, 2006; Bill Graham & Glenn E.

Rice, Loss of 4 Leaves Grief, Shock; As Friends and Family Recall -

Wreck Victims, Some Have Questions About the Police Chase,

Kansas City Star, Sept. 22, 2006.

14

Richmond, Virginia, and St. Petersburg, Florida.'"® And the

police departments themselves are convening boards to re-

view their procedures after well-publicized pursuits in Phoe-

nix, Arizona; Lakeland, Florida; and Ada County, Idaho."”

Police departments in nearly every city in the country

have reacted to public concern by instituting “pursuit poli-

cies” to govern when officers may effect seizures through

high-speed pursuits. U.S. Department of Justice data show

that in 2003, 94 per cent of all local police departments — and

almost 100 per cent of departments serving populations

greater than 10,000 — had a written policy on pursuit driving.

See Matthew J. Hickman & Brian A. Reaves, Bureau of Jus-

tice Stetistics, U.S. Dept. of Justice, Local Police Depart-

ments, 2003, at 24 (2006). Data for local sheriffs’ depart-

ments are similar: in 2003, 95 per cent of sheriffs’ depart-

ments had written pursuit policies. See Matthew J. Hickman

& Brian A. Reaves, Bureau of Justice Statistics, U.S. Dept.

of Justice, Sheriffs’ Offices, 2003, at 24 (2006).

"© Compare A. Burton Hinkle, Editorial, Fewer Chases Could Save

Lives, Including Officers’, Richmond Times Dispatch, Sept. 8,

2006, at A-11 (arguing that while “more than 300 people a year are

killed in America during high-speed police chases,” the “average

annual number of serial killers caught in high-speed chases is

zero”), with Dan Spice, Editorial, Deluge of Car Thefts Is Unfor-

givable, St. Petersburg Times (Florida), Sept. 24, 2006 (arguing

that a local policy geared toward reducing high-speed chases en-

courages crime, since “[t]he message is clear: It’s a free ride in St.

Petersburg for crime”).

"" See Judi Villa, New Pursuit Policy Reduces Phoenix Police Car

Chases, Arizona Republic (Phoenix), Sept. 20, 2006, at 1; Dave

Nicholson, Review Finds Lakeland Police Followed Policy in Fa-

tal Chase, Tampa Tribune, Oct. 7, 2006, at 4; Patrick Orr, Ada

County Police Agencies Agree on Plan for Hot Pursuits; Policy

Aims To Minimize Danger by Clarifying Who's in Charge and

Limiting the Number of Patrol Cars, \daho Statesman (Boise), Oct.

7, 2006, at 1.

15

The trend, furthermore, is to respond to the public’s con-

cerns by enacting more restrictive policies. A 1997 study

found that, in a representative sample of police departments

nationwide, nearly half of all departments with pursuit poli-

cies had updated their policy in the last two years. Dennis Jay

Kenney & Geoffrey P. Alpert, A National Survey of Pursuits

and the Use of Police Force: Data from Law Enforcement

Agencies, 25 J. Crim. Just. 315, 318 (1997). Of those de-

partments, 87 per cent had changed their policy to further re-

strict the use of high-speed pursuits. /bid. Currently, 61 per

cent of all local police departments — and over 80 per cent of

departments serving populations greater than 10,000 — have

“restrictive” policies that limit “pursuits according to specific

criteria such as type of offense or maximum speed.” Hick-

man, Local Police Departments, 2003, supra, at 24.

These changes to pursuit policies have changed police

practice. In Metro-Dade, Florida, for example, officials made

the department’s pursuit policy more restrictive. The year be-

fore the policy was changed, officers engaged in 279 pur-

suits. The year after the change, that number dropped to 51.

Alpert, Police Pursuit: Policies and Training, supra, at 4. In

Omaha, Nebraska, by contrast, after the police pursuit policy

was changed to be more permissive, the number of annual

high-speed pursuits jumped from 17 to 122. lbid. These

numbers also suggest the importance of allowing sufficient

flexibility to local authorities, who are best able to establish

rules that take account of local variations and conditions: a

restrictive pursuit policy that strikes the proper balance for a

large metropolitan region may not be effective or strike the

right balance in a smaller urban area.

In sum, precisely because arrests effected by high-speed

chases put members of the public and not just individual sus-

pects at risk, they have generated intense and effective politi-

cal oversight. Under these circumstances, there is every rea-

son to think the police will use this technique only when the

contribution it makes to “public order” outweighs the impact

16

it has on “privacy and personal security” (7.L.0., 469 U.S. at

337).

C. The Impact Of High-Speed Seizures On The

Public Is At Least As Generalized As That Of

Other General-Impact Policing Techniques Held

Reasonable By This Court.

As discussed above, this Court has frequently concluded

that the generalized impact of and associated political checks

upon the use of a policing technique render judicially en-

forceable limitations on that technique unnecessary to assure

its reasonable exercise. Those considerations are even more

forcefully presented in this case. Whereas the Court expected

the mere inconvenience of “traffic tieups” (540 U.S. at 426)

to motivate public oversight in Lidster, for example, here it is

the prospect of serious injury or even death on the highway

that can be expected to generate — indeed, has generated — in-

tense public scrutiny.

The fact that the intended target of the police force in

this case is the fleeing suspect and not members of the public

does not change this conclusion. As we have noted, this

Court has frequently treated political assent as furnishing

evidence (and ongoing assurance) of reasonableness when

policing techniques affect third parties whose interests are

closely aligned with those of the public. See Earls, 536 U.S.

822 (school children); Vernonia School Dist. 47J, 515 U.S.

646 (same); Burger, 482 U.S. 691 (regulated businesses).

The alignment of the public’s interest and the targeted party’s

interest is at least as close in the high-speed chase setting as it

was in any of these other settings, and involves stakes — in-

cluding death for ordinary citizens — that are in fact much

graver.

For these reasons, identifying the circumstances under

which the police should chase and seize fleeing suspects is a

question that has in fact engendered intense debate across the

country. “When trying to resolve this kind of close question

17

involving the interpretation of constitutional values,” the

Court should take into account the fact that members of the

public who may be affected have had “the opportunity to be

able to participate” in the reasonableness calculus. Earls, 536

U.S. at 841 (Breyer, J., concurring). In fact, nearly all locali-.

ties have instituted and are continually updating pursuit poli-

cies. Therefore, as the Sitz Court recognized with respect to

sobriety checkpoints, courts should be sensitive to the role of

politically accountable officials in deciding which “among

reasonable alternative law enforcement techniques should be

employed to deal with a serious public danger.” 496 U.S. at

453. When a general-impact seizure, such as a seizure ef-

fected through a high-speed chase, galvanizes the political

process, the actions of politically accountable officials within

this context bear the mark of reasonableness.

Ill. DEPUTY SCOTT RESPONDED REASONABLY

TO A SERIOUS THREAT TO PUBLIC SAFETY.

the Fourth Amendment. His use of force in this case struck a

reasonable balance between respondent’s Fourth Amendment

interests and the government’s concern with public safety.

1. First, for the reasons we have suggested, the general- ~

ity of the public concern with high speed chases means that

the Court should approach this case with a thumb on the rea-

sonableness side of the Fourth Amendment scale. The politi-

cal process has been actively engaged in drawing lines defin-

ing acceptable police behavior in this context. That does not

altogether insulate high-speed seizures from review, but it

does indicate that police conduct has been shaped by a public

that might be affected by those police activities, and whose

judgments about reasonableness accordingly are due substan-

tial deference. When a case arises in this setting, those chal-

lenging the seizure accordingly must make an extraordinary

showing to establish that it fell outside the zone of constitu-

tional reasonableness. Respondent cannot do so here.

18

2. In calculating the Fourth Amendment balance, this is

a case in which “[t]he relevant public concern was grave.”

Lidster, 540 U.S. at 427. As a general matter, the Court has

emphasized that public safety weighs heavily on the govern-

mental side of the constitutional equation. See, e.g., Samson

v. California, 126 S. Ct. 2193, 2201 (2006); Skinner v. Rail-

way Labor Executives’ Ass’n, 489 U.S. 602 (1989); United

States v. Hensley, 469 U.S. 221, 229 (1985); South Dakota v.

Opperman, 428 U.S. 364, 369 (1976). For this reason, even

the most intrusive seizure may be reasonable when the sus-

pect “poses a threat of serious physical harm, either to the of-

ficer or others.” Garner, 471 U.S. at 11. See id. at 27

(O’Connor, J., dissenting). ;

That is the case here. Though high-speed pursuits are

dangerous, we explain above that they often serve compel-

ling governmental] interests in criminal law enforcement and

traffic safety. Considerations like these have made the Court

especially deferential to official attempts to make the roads

safe. See, e.g., Sitz, 496 U.S. at 451 (quoting Breithaupt v.

Abram, 352 U.S. 432, 439 (1957)) (upholding sobriety

checkpoints because of their effect on the “increasing slaugh-

ter on our highways” caused by drunk driving); Delaware v.

Prouse, 440 U.S. 648, 663 n.26 (1979) (suggesting that man-

datory safety inspections at truck weigh-stations are reason- .

able). The “nature and immediacy” of the concern that sup-

ported the seizure in this case therefore is apparent. Vernonia

School Dist. 47J, 515 U.S. at 660. See Pet. 6 (“Harris and his

own expert agree that his driving was reckless and a danger

to the public”) (citing R. 38, Harris Depo., at 127, 129, 138;

R. 37, Alpert Depo., at 68-69, 71-72, 74-85).

3. In addition — and particularly when viewed against the

background of significant public and political involvement in

drawing up the rules governing high-speed chases — this case

plainly is one where “[t}he calculus of reasonableness must

embody allowance for the fact that police officers are often

forced to make split-second judgments - in circumstances

19

that are tense, uncertain, and rapidly evolving — about the

amount of force that is necessary in a particular situation.”

Graham, 490 U.S. at 396-397. Cf. Atwater v. City of Lago

Vista, 532 U.S. 318, 347 (2001) (“Often enough, the Fourth

Amendment has to be applied on the spur (and in the heat) of

the moment”).

In fact, the imperative to bring a high-speed chase to the

quickest possible end is obvious. Precisely because such pur-

suits are so dangerous, police officers who lawfully initiate a

chase must act quickly to terminate it. Chases do not have to

continue for long before ending badly; 50 per cent of all pur-

suit collisions occur in a pursuit’s first two minutes, and

more than 70 per cent of all collisions occur before the sixth

minute. Jeremy Travis, Nat’! Inst. of Justice, U.S. Dept. of

Justice, Pursuit Management Task Force 2 (1998). Further-

more, at high speeds it is unlikely that officers will be able to

prevent harm to innocent bystanders once the risk has be-

come immediate. Given the high rate at which reckless eva-

sion of law enforcement officers injures bystanders and the

speed with which chases evolve, it is reasonable for officers

to take advantage of any opportunity to end high-speed

chases, rather than to wait for the threat to become imminent.

The Court addressed these considerations in rejecting the

claim that injury resulting from a high-speed chase violated

the Due Process Clause:

[T]he police on an occasion calling for fast action

have obligations that tend to tug against each other.

Their duty is to restore and maintain lawful order,

while not exacerbating disorder more than necessary

to do their jobs. They are supposed to act decisively

and to show restraint at the same moment, and their

decisions have to be made “in haste, under pressure,

and frequently without the luxury of a second

chance.” * * * A police officer deciding whether to

give chase must balance on the one hand the need to

stop a suspect and show that flight from the law is” ~

20

no way to freedom, and, on the other, the high-speed

threat to everyone within stopping range, be they

suspects, their passengers, other drivers, or bystand-

ers.

County of Sacramento v. Lewis, 523 U.S. 833, 853 (1998)

(citation omitted). The difficulty of that decision is, if any-

thing, greatly compounded once a chase has commenced and

a police officer must decide how it should be terminated.

4. Against this background, the method used by Deputy

Scott to terminate-the chase in this case was well within the

reasonable range of options. Consider the circumstances that

he faced on the evening of the chase here. The suspect, who

was speeding to begin with, accelerated to escape from police

officers, crossed the double-yellow line and passed cars on

the wrong side of the road, and ignored two red lights, Pet.

App. 2a, racing headlong through intersections. Understand-

ing the threat that the suspect posed to other motorists, Dep-

uty Scott first attempted to bring respondent to a stop in the

drugstore parking lot, where their cars were traveling at low

speeds. By blocking the parking lot’s exit, Deputy Scott tned

to end the chase in a manner that, while placing himself at

risk, posed a risk of physical injury to the suspect that was

low.

It was only after respondent collided with Deputy Scott’s

car and sped off that Deputy Scott took more severe action.

Even then, he acted deliberately, radioing for permission to

make car-to-car contact before executing the bumping ma-

neuver. He carefully selected his moment to act, moreover,

making contact with the suspect’s car only at a time when no

other vehicles were in the vicinity.

These actions were reasonable in every respect, setting

this case apart from those involving applications of deadly

force that violate the Fourth Amendment. First, Deputy Scott

reacted appropriately to the threat posed by the suspect. The

shooting in Garner failed Fourth Amendment scrutiny be-

21

cause the unarmed suspect’s flight posed “no immediate

threat to the officer and no threat to others.” 471 U.S. at 11.

In this case, by contrast, Deputy Scott had ample reason to

believe that the suspect’s flight was extremely dangerous.

Not only did the suspect demonstrate that he was a “threat to

the officer” by colliding with Deputy Scott’s police cruiser,

his reckless driving clearly evinced a “threat to others.”

Second, the purpose of the seizure in this case enhances

its reasonableness. The officer in Garner shot simply to pre-

vent the escape of a nondangerous suspect. See Garner, 47]

U.S. at 3 n.3 (stating that the officer shot the suspect because

the officer “could not have gotten over the fence easily” and

“Garner, being younger and more energetic, could have out-

run him’’). But in this case, preventing escape and apprehend-

ing a nondangerous suspect to face subsequent judicial pro-

ceedings was not Deputy Scott’s primary motivation; the sus-

pect was not about to get away from Deputy Scott and his

fellow officers, who stayed with the suspec' through his

many attempts to evade them. Instead, and unlike in Garner,

this seizure was aimed not at preventing escape, but at ending

. the suspect’s increasing threat to public safety. While of

course “[i]t is not better that all * * * suspects die than that

they escape” (id. at 11), when suspects place the lives of oth-

ers at risk, officers like Deputy Scott may reasonably apply

deadly force to end the danger to the public. See ibid. (allow-

ing deadly force where “the suspect poses a threat of serious

physical harm”).

Third, Deputy Scott’s actions before the seizure confirm

that his application of deadly force was warranted. See Gar-

ner, 471 U.S. at 9 (stating that a seizure must be judged ac-

cording to the “totality of the circumstances”). The officer in

Garner shot the suspect immediately, without first attempt-

ing a less dangerous seizure technique or giving the suspect

more than a fleeting chance to surrender. See id. at 3-4. Dep-

uty Scott, on the other hand, first tried a substantially less

dangerous approach: he attempted to stop respondent’s car at

22

low speeds while it was leaving the drugstore parking lot.

And Deputy Scott gave the suspect ample opportunity to sur-

render, as he and his fellow officers chased the suspect for

nine miles with lights and sirens blazing. See id. at 11-12 (al-

lowing deadly force where the suspect poses a threat and,

“where feasible, some warning has been given”).

Fourth, Deputy Scott’s conduct complied with his com-

munity’s judgments about when vehicle pursuits and the use

of deadly force are reasonable. According to the vehicle pur-

suit policy of the Coweta County Sheriff's Department

(“CCSD”), each deputy has the discretion to decide when to

initiate, continue, and terminate a high-speed pursuit. Pet.

App. 33a. In addition, “[d]eliberate physical contact between

vehicles at any time may be justified to terminate the pursuit

upon the approval of the supervisor.” /d. at 34a. It is undis-

puted here that Deputy Scott received permission over the

radio to employ the PIT method. Traveling at high speeds,

Deputy Scott managed to end the chase by making contact

with the suspect’s rear bumper.

Furthermore, CCSD’s use of force policy permits deadly

force “when the Deputy reasonably believes it is necessary *

* * to prevent grave bodily injury to themselves [sic] or an-

other, and all other available means of defense have failed or

would be inadequate or dangerous,” or “when necessary to

prevent the commission of * * * any felony which involves

the use or threat of physical force or violence against any

person.” Pet. App. 21a. In this case, the pursuing officers

failed to stop respondent in the drugstore parking lot and

feared that his reckless driving could cause grave bodily in-

jury to individuals in Peachtree City, a densely populated

suburb 28 miles from Atlanta.'* In addition, force may have

suburb makes Deputy Scott’s conduct even more reasonable. The

chase moved from less densely settled Coweta County (201 per-

sons per square mile) to the much more densely settled Peachtree

23

been reasonably necessary to prevent the commission of a

violent felony. If the fleeing suspect had struck and killed a

police officer or bystander, he may have committed “invol-

untary manslaughter in the commission of an unlawful act,” a

felony under Georgia law."

Finally, Deputy Scott’s actions were reasonable because,

even when he used deadly force, he did so in a manner that

was designed primarily to disable the suspect’s car rather

than bring about his injury or death. The seizure technique

employed in Garner was unequivocally deadly: the suspect

was shot in the back of the head. Garner, 471 U.S. at 4. In-

deed, Garner’s holding is most relevant to applications of

deadly force involving firearms. See id. at 11 (“A police offi-

cer may not seize an unarmed, nondangerous suspect by

shooting him dead.”) (emphasis added); id. at 31-32

(O’Connor, J., dissenting) (“The Court’s opinion, despite its

broad language, actually decides only that the shooting of a

fleeing burglary suspect who was in fact neither armed nor

dangerous can support a § 1983 action.”).

City (1373 persons per square mile), see United States Census Bu-

reau, State and County Quick Facts, available at

http://quickfacts.census.gov/qfd/states/13/13077.html, before end-

ing on a highway south of Peachtree City. See Pet. App. 3a. In

defining urbanized areas and urban clusters, the Census Bureau

classifies an area as densely settled wien it exceeds 1,000 people

per square mile. Census 2000 Urban and Rural Classification,

available at http://www.census.gov/geo/www/ua/ua_2k.html.

'? Georgia law recognizes involuntary manslaughter in the com-

mission of an unlawful act whenever one “causes the death of an-

other human being without any intention to do so by the commis-

sion of an unlawful act other than a felony.” Official Code of

Georgia Ann. § 16-5-3(a). Involuntary manslaughter in the com-

mission of an unlawful act is punishable by imprisonment for one

to ten years.

24

The use of deadly force in this case, however, was not

aimed at killing the suspect. Instead, Deputy Scott’s maneu-

ver was intended to halt the suspect’s car. To be sure, car-to-

car contact at high speeds involves considerable risk, but

death or serious injury are not inevitable. Deputy Scott acted

not to assure respondent’s death, but to assure that the sus-

pect’s car would be stopped so that it could no longer endan-

ger other cars or drivers. Whatever the ultimate outcome, this

intent diminishes the intrusiveness of the government con-

duct. Cf. Lewis, 523 U.S. at 854 (“purpose to cause harm”

greatly compounds seriousness of injury inflicted by gov-

ernment actor and is “needed for due process liability in a

pursuit chase”).

All of these factors distinguish Deputy Scott from the of-

ficer in Garner and place his actions squarely within the zone

of reasonableness.'* Deputy Scott was a politically account-

'* Deputy Scott’s actions are far more easily defended than those

of other officers in cases where this Court precluded § 1983 liabil-

ity. For instance, the Court recently held that a suspect who fled in

a car could not recover from a police officer who shot the suspect

through the car’s window after the suspect “‘had proven he would

do almost anything to avoid capture’ and that he posed a major

threat to, among others, the officers” pursuing him. Brosseau v.

Haugen, 543 U.S. 194, 200 (2004) (per curiam) (quoting Cole v.

Bone, 993 F.2d 1328 (8th Cir. 1993)) (holding that the officer was

entitled to qualified immunity because, apart from whether the of-

ficer’s actions actually violated the Fourth Amendment, her ac-

tions were not a clear violation of established law). Like the officer

in Brosseau, Deputy Scott faced a fleeing suspect who had proven

that he would do anything to escape and that he posed considerable

danger to the police and to the public. But in contrast to the officer

in Brosseau, Deputy Scott first attempted to stop the suspect’s car

using non-deadly means. Moreover, Deputy Scott’s use of deadly

force was not designed to injure the suspect; rather than shoot the

* suspect, Deputy Scott tried to end the pursuit by applying force to

the suspect’s car. If this Court precluded recovery by the suspect in

Brosseau, surely the facts of this case merit a similar result.

25

able officer who was forced to make a split-second decision

about how to neutralize a serious threat to public safety. In

such circumstances, where a suspect races away from police

down a public highway, it is difficult to imagine a clearer ex-

ample of a situation where “society [is] confronted with * * *

immediate, vehicle-bound threat to life and limb,” and where

the police need the flexibility to respond. City of Indianapolis

v. Edmond, 531 U.S. 32, 43 (2000) (characterizing the need

for sobriety checkpoints in Sitz).

Local policies provide for a variety of car-disabling tac-

tics, including roadblocks, tire spikes, and the PIT bump

method. Barring the most exceptional circumstances, courts

should avoid mandating the use of any specific tactic in a

particular case. The safety and efficacy of a given tactic var-

ies widely according to the situation, and this Court previ-

ously has objected to searching inquiries into which “among

reasonable alternative law enforcement techniques should be

employed to deal with a serious public danger.” Sitz, 496

U.S. at 453. “Experts on police science might disagree over

which of several methods” of terminating a pursuit “is pref-

erable as an ideal. But for purposes of Fourth Amendment

analysis, the choice among such reasonable alternatives re-

mains with the government officials who have a unique un-

derstanding of, and a responsibility for, limited public re-

sources.” Jd. at 453-54. This Court accordingly should not

second-guess Deputy Scott’s decision, made with permission

and pursuant to Sheriff's Department policy, to end the pur-

suit by making contact with respondent’s vehicle.

26

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted,

CHARLES A. ROTHFELD yore a ‘

ANDREW J. PINCUS oe

MAYER, BROWN, ROWE & STATE AND LOCAL LEGAL

veantteraa pret rth Capitol St., N.W

1909 K Street, N.W. orth Vapi ., N.W.

Suite 309

pte ace 20006 Washington, D.C. 20001

(202) 434-4850

DAN KAHAN

YALE LAW SCHOOL

SUPREME COURT ADVOCACY

CLINIC

127 Wall Street

New Haven, CT 06511

(203) 432-4800

* Counsel of Record for the

Amici Curiae

Counsel for Amici Curiae

DECEMBER 2006