Recent Legal Developments

• Published date: 01 September 2008
• DOI: 10.1177/0734016808322123
• Date: 01 September 2008
• Author: Darrell L. Ross
• Subject Matter: Articles

Recent Legal Developments

Scott v. Harris: Seeing Is Believing

Darrell L. Ross

Western Illinois University, Macomb

This article provides an assessment of the U.S. Supreme Court’s decision in Scott v. Harris

(2007). The assessment provides students, criminal justice scholars, and practitioners with an

overview of the current status of case law on police pursuits. Since the 1980s, police pursuits

have emerged as a high-profile liability area due to their risk of danger and injury or death to

a suspect, officers, and innocent third parties (Alpert, 1998; Gallagher, 1989; Hill, 2002;

Kappeler, 2006; Kappeler, Kappeler, & del Carmen, 2001; O’Connor & Norse, 2006; Ross &

Bodapoti, 2006). The Scott decision marks the third decision since 1989 in which the topic of

police pursuits has been addressed by the Court. The article reviews the Court’s prior decisions

on the subject, provides an analysis of Scott, and examines how lower courts have applied the

decision to high-speed police pursuits.

Keywords: liability; police liability; police pursuit liability; Supreme Court decisions; use of

lethal force; lethal force liability

Whether a suspect flees on foot, horseback, or a motorized vehicle, law enforcement

officers frequently are faced with making a decision to pursue or not to pursue. Since

the establishment of the Fourth Amendment in 1791, making the decision to stop the flight

of a fleeing person has not changed drastically. The law authorized an officer to kill a flee-

ing felony suspect rather than allow him to escape. With the U.S. Supreme Court’s decision

in Tennessee v. Garner (1985), however, an officer using deadly force against a fleeing

suspect may be held liable for violating the constitutional rights of the suspect.

Many suspects are willing to risk their lives and the lives of others to avoid being appre-

hended by the police. In deciding to pursue a suspect, police officers are often faced with

a catch-22 dilemma: damned if they chase and damned if they don’t. Officers must answer

the question of whether the risks of pursuing and apprehending a fleeing suspect outweigh

the risks of endangering their own and the public’s safety. A critical component of making

the decision to pursue is that there is little time for an officer to deliberate over the decision

and pursuits can create a dangerous circumstance quite quickly. The California Highway

Patrol (1995) researched police pursuits and three common themes emerged: (a) the initi-

ating crime and crime charged were not the same; (b) the risk of death or injury to a civil-

ian was statistically low; and (c) the cost of abandoning pursuits is high—banning pursuits

meant that 66 murderers would go free, 190 robbers would be loose, and 4,000 felons

would not be stopped. Alpert (1998) reported that 50% of all pursuit collisions occur in the

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Criminal Justice Review

Volume 33 Number 3

September 2008 431-446

© 2008 Georgia State University

Research Foundation, Inc.

10.1177/0734016808322123

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Author’s Note: Please address correspondence concerning this article to Darrell L. Ross, Department of Law

Enforcement and Justice Administration, Western Illinois University Macomb, IL 61455; e-mail: dl-ross@wiu.edu.

first 2 minutes of the pursuit and more than 70% of all collisions occur within 6 min of the

pursuit. Rivara and Mack (2004) analyzed traffic fatalities in the United States from 1994

to 2002. They reported that 2,654 fatal crashes resulted from police pursuits involving a

total of 3,146 deaths. They also reported that about one third of the deaths involved non-

suspects and 40 police officers died in accidents associated with the pursuits. Hence the

police, suspects, and innocent bystanders are interconnected in a potential dangerous con-

frontation with little room for error.

Beyond the hazardous risks associated with police pursuits is the increased risk of civil

litigation. Lawsuits arising from a police pursuit can be filed under state tort claims and/or

in federal court in accordance with Title 42 U.S.C. §1983. Generally, a plaintiff’s claim will

allege that the officer(s) violated their rights under the Fourth and/or Fourteenth

Amendments. Lawsuits filed under the Fourth Amendment assert the right to be free from

an unreasonable seizure and legal actions filed under the Fourteenth Amendment assert the

right to be treated by a governmental entity with fundamental fairness and due process.

Several researchers have studied civil litigation trends involving police pursuits.

Kappeler, Kappeler, and del Carmen (2001) reported that in published §1983 pursuit cases

from 1978 to 1990, the police prevailed in 69% of the cases. Ross (2000) found in an

assessment of published §1983 actions regarding failure to train claims in police pursuits

from 1989 to 1999 that the police prevailed in 61%. When plaintiffs prevailed, however, on

a claim of failure to train officers, the plaintiff on average was awarded US$1,389,000

excluding attorney fees. Ross and Bodapati (2006) found in a study of 150 law enforcement

departments in Michigan from 1996 to 2000 that police pursuits ranked third among the top

20 categories for common lawsuits filed against police agencies. They reported that the

average award for a prevailing plaintiff was slightly more than US$250,000, excluding

attorney fees but that the police prevailed in 75% of the litigated cases.

The ability to pursue a fleeing suspect is an essential aspect of effective law enforce-

ment. The U.S. Supreme Court has remarked in Illinois v. Wardlow (2000) that headlong

flight, wherever it occurs, is the consummate act of evasion: it is not indicative of wrong-

doing but it is certainly suggestive of such. This observation, however, falls short of pro-

viding guidance to the police when making a decision to pursue a fleeing motorist. With

concern over the need to apprehend fleeing suspects and providing safety to the public

during a pursuit, guidance to the police by the U.S. Supreme Court has been provided in

three separate decisions. The next section provides a brief overview of two the previous

Court decisions regarding police pursuits.

Previous Case Law on Police Pursuits

Brower v. Inyo (1989)

Prior to their decision in Scott v. Harris (2007), the U.S. Supreme Court has twice deliv-

ered opinions on police pursuits. First, in Brower v. County of Inyo (1989), the Court

reviewed the death of a fleeing motorist under the Fourth Amendment’s requirement that

searches, and most particularly seizures, were not to be unreasonable. In Brower, deputies

pursued the decedent for several miles after he had stolen a vehicle, and other deputies

setup a tractor trailer across the highway as a roadblock. The trailer was placed behind a

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