Out-of-Control Prosecutors in North Carolina
Stimson's Freudian Slip

Section 1983 and High-Speed Chases

What force, if any, may a police officer use to stop a fleeing suspect?  May he use deadly force?  All of the time?  Some of the time? 

The United States Supreme Court will examine this issue in a case with far-reaching implications - Scott v. Harris.  In Scott v. Harris, a motorist jumped into his car, and then sped towards and almost hit a police officer.  When the police officer told the motorist to pull over, he refused, instead driving over 85 miles-per-hour.

The police officer determined that Scott posed a threat of danger to other motorists and bumped into his car.  The motorist lost control of his car, crashed, and is now a quadriplegic.  The motorist sued the police officer, alleging the improper use of deadly force in violation of the Fourth Amendment.

The case presents an interesting and difficult issue.  Under Tennessee v. Garner, the use of deadly force is inappropriate unless the police officer had probable cause to believe that the suspect posed a threat of serious harm to the officers or others.  When, if ever, does a fleeing motorist pose a threat of serious harm to others? 

What if the motorist is merely fleeing down a deserted highway? Should police be able to use deadly force in that circumstance?  My knee-jerk reaction would be, No.  But that reaction seems wrong. 

Must police wait for the motorist to collide with an innocent bystander before using deadly force?  Must the officer wait until the fleeing motorist is nearing a school zone during school hours?  Such a rule would seem perverse: It would require the police to wait until the fleeing motorist is about to kill someone before stopping the motorist.

Ultimately, the law should punish the guilty and protect the innocent.  A person fleeing from the police in a ton of steel and glass is decidedly the guilty party.  Police should not have to wait until the motorist is about to kill someone - as that would make it more likely that an innocent person would be hared.

How might the Supreme Court rule in the case?  The Court could rule in any of several ways.  First, they could draft a bright-line rule (yeah, right): A fleeing motorist per se poses a threat of imminent harm, and therefore deadly use is always appropriate to stop the motorist.  More likely, the Supreme Court will nuance Tennessee v. Garner, holding that a danger must ripen before deadly force may be used.  The Court will distinguish between an empty highway and a school zone.

I'm in favor of a per se rule.  No highway is ever empty.  And if someone is going to get hurt, it should be the person driving away from police - not the person trying to get to work.

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