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Ramming During Pursuit Viewed As Deadly Force

by Jack Ryan

In Harris v. Coweta County, the United States Court of Appeal for the 11th Circuit analyzed a ramming during a police pursuit under deadly force principles and refused to grant the officer summary judgment or qualified immunity. The supervisor, who authorized Deputy Scott to perform the Precision Immobilization Technique during the pursuit was granted summary judgment and dismissed from the case because, while he authorized the P.I.T. maneuver, the deputy did not P.I.T. Harris’ vehicle but instead rammed the vehicle. The United States Supreme Court has decided to consider the decision of the 11th Circuit Court of Appeal in this case.

The United States Supreme Court will consider two questions:

  1. Whether a law enforcement officer’s conduct is objectively reasonable under the 4th Amendment when the officer makes a split-second decision to terminate a high-speed pursuit by bumping the fleeing suspect’s vehicle with his push bumper because the suspect has demonstrated that he would continue to drive in a reckless and dangerous manner that put the lives of innocent persons at a serious risk of death.
  2. Whether at the time of the incident the law was clearly established when neither this Court [the Supreme Court] nor any circuit, including the Eleventh Circuit, had ruled the Fourth Amendment is violated when a law enforcement officer used deadly force to protect the lives of innocent persons from the risk of dangerous and reckless vehicular flight.

If the United States Supreme Court rules that the officer’s conduct was objectively reasonable under question 1 above, the officer will get summary judgment and the Court will have authorized this type of force in vehicular pursuit cases.

If the Court finds that the officer’s conduct was not objectively reasonable [answers no to question 1], the Court will then consider whether the law was clearly established, such that an officer would have notice as to whether or not ramming would be appropriate in this circumstance. If the answer is that law was not clearly established then the officer will be granted qualified immunity, in other word, the ramming was unconstitutional but the law had not made it clear to a reasonable officer that it was unconstitutional.

Under this second analysis, all future cases will be held to the clearly established standard announced by the Court, but this officer will not be liable because he did not know that it was unreasonable.

If the Court determines that ramming the car was unconstitutional (no to question 1) and that the law was clearly established with respect to this type of force against fleeing vehicles, then Deputy Scott will be denied summary judgment and qualified immunity and the case will go to trial where a jury will ultimately decide whether Deputy Scott’s actions were reasonable.

At the outset, it should be noted that whenever a court is considering whether or not an officer is entitled to summary judgment and qualified immunity the court views the facts in the light most favorable to the person bringing the lawsuit, in this case Harris. Thus, the facts as outlined by the court may not be the facts that the officer, in this case Deputy Scott, would agree with. Ultimately only a jury looks at both sides of the story. When an officer is seeking a summary judgment and qualified immunity, they must live with the facts viewed in the light most-favorable to the person who is suing the officer.

Summary of Facts:

Victor Harris was clocked speeding by a deputy while driving a vehicle that was actively registered to him. When the deputy attempted to pull Harris over, Harris fled. The result was a six-minute pursuit that traveled nine miles. During the pursuit which reached speeds of 90 miles per hour, Harris crossed the center line, placing other motorists at risk and passed through two red lights. The court noted that during the pursuit Harris maintained control of his vehicle and even used his turn signals during his movements while being pursued. At one point he collided with a police cruiser that attempted to block his path in a parking lot.

During the pursuit, Deputy Scott sought a supervisor’s permission to use the PIT maneuver against Harris to stop the chase. The court noted that Scott had not been trained in the Precision Immobilization Technique at the time. A supervisor authorized Scott to “take him out.” At that point Scott determined that he was traveling too fast to use the PIT maneuver so he decided to ram Harris straight on instead. Harris was rendered a quadriplegic as a result of the crash caused by the ramming.

In describing the P.I.T. maneuver the court adopted various descriptive definitions that may not be consistent with the generally-accepted practices in law enforcement.

The court asserted: “PIT--defined by the district court as "a driving technique designed to stop a fleeing motorist 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." This definition assumes that the maneuver will be executed at lower speeds by properly trained officers, and therefore can terminate a flight "safely." See, e.g., Geoffrey Alpert's Expert Report, R. 24 at 5 (stating that the PIT requires a set of defined circumstances in order for it to be performed safely (i.e., at low speeds on wide straight-aways, on dry pavement by a properly trained driver)); National Law Enforcement and Corrections Technology Center Bulletin, U.S. Department of Justice, October 1996, at 4-5 (stating that the PIT "is not applicable in every situation, the key to its effective use is to carefully choose a favorable spot before attempting PIT and to first consider the possible effects on other traffic and pedestrians"); National San Diego Police Department Use of Force Task Force Recommendations, Executive Summary at 37 ("Utilized at speeds of 35 mph or less, the PIT maneuver improves officer and public safety by removing the threat of pursuit as quickly and safely as possible.").” [It should be noted that the definition of the P.I.T. maneuver adopted by the 11th Circuit is not consistent with agency policy and training on P.I.T. since many agencies do not put a speed-cap on the P.I.T. maneuver.]

In adopting this descriptive framework for the P.I.T. maneuver, the court dismissed the supervisor from the lawsuit. Finding, as reported by Deputy Scott that the P.I.T. maneuver was not done in this case, the court concluded that the maneuver authorized by the supervisor, a P.I.T. was not carried out. Since the Deputy rammed, rather than employing the P.I.T. the supervisor did not have liability.

It should be noted at the outset that the deputy stopped Harris’ movement by a means intentionally applied, thus, there was a seizure for 4th Amendment purposes. In reviewing the officer’s conduct under the 4th Amendment, the court examined whether it was reasonable to ram Harris at a high rate of speed under the circumstances that the deputy faced. In analyzing the facts here the court noted that deadly force is “force that creates a substantial risk of causing death or serious bodily injury…Like other instrumentalities, the use of an automobile cannot be construed in every circumstance as deadly force. However, an automobile, like a gun, can be used deliberately to cause death or serious bodily injury.” The court concluded that a jury could decide that the ramming here could constitute deadly force.

The court identified the deadly force standards from Tennessee v. Garner, 471 U.S. 1 (1985): “(1) where the officer has probable cause to believe that the suspect poses a threat of serious physical harm either to the officer or to others, or if the suspect threatens the officer with a weapon or there is probable cause to believe that he had committed a crime involving the infliction or threatened infliction of serious physical harm and (2) if deadly force is necessary to prevent escape and (3) and if, where feasible, some warning has been given.” It should be noted that most police agencies, through policy, require that the subject also poses some imminent or immediate danger to others by their escape. This is not a constitutional requirement, but has become a generally accepted practice in law enforcement.

In applying the deadly force standard to this case, the court recognized that ramming a vehicle at high speed may cause serious bodily harm or death, “Moreover, none of the limited circumstances identified in Garner that might render this use of deadly force constitutional are present here. Scott did not have probable cause to believe that Harris had committed a crime involving the infliction or threatened infliction or serious physical harm, nor did Harris, prior to the chase, pose an imminent threat of serious physical harm to Scott or others… None of the antecedent conditions for the use of deadly force existed in this case. Harris’ infraction was speeding (73 mph in a 55 mph zone). There were no warrants out for his arrest for anything, much less for the requisite crime involving the infliction or threatened infliction of serious physical harm…Indeed neither Scott nor Fenninger [the supervisor] had any idea why Harris was being pursued. The use of deadly force is not reasonable in a high-speed chase based only on speeding and evading arrest…A high-speed chase of a suspect fleeing after a traffic infraction does not amount to the substantial threat of imminent physical harm that Garner requires before deadly force can be used. ”

The United States Court of Appeal for the 11th Circuit did not consider whether actions by Harris during the pursuit enhanced the danger to public thus justifying a heightened law enforcement response. Additionally, many law enforcement agencies, through policy and training, direct officers to consider the subject’s additional criminal actions during the pursuit in the evaluation process as a consideration justifying the continuation of the pursuit.

The court of appeal also examined whether or not Harris’ continued flight posed a danger of serious bodily harm or death to other motorists such that deadly force would be justified to neutralize the threat to innocent motorists. The court rejected an argument that Harris posed this type of threat in stating: “We reject the defendants' argument that Harris' driving must, as a matter of law, be considered sufficiently reckless to give Scott probable cause to believe that he posed a substantial threat of imminent physical harm to motorists and pedestrians. This is a disputed issue to be resolved by a jury. As noted by the district court judge, taking the facts from the non-movant's viewpoint, Harris remained in control of his vehicle, slowed for turns and intersections, and typically used his indicators for turns. He did not run any motorists of 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 Harris, the motorway had been cleared of motorists and pedestrians allegedly because of police blockades of the nearby intersections.” The court concluded, by looking at the facts in the light most-favorable to Harris, that Harris was not a serious threat to other motorists. As such, the court denied Deputy Scott summary judgment and qualified immunity setting up the appeal to the United States Supreme Court.

The issue presently before the Supreme Court involving the concept of “ramming” is addressed in law enforcement agency policies around the country. The majority of these policies limit the use of ramming to those circumstances where deadly force would be justified. The question is, does the serious danger created by the fleeing motorist justify the use of deadly force to eliminate the threat? An interesting note is that agencies that address ramming generally allow it in the deadly force situation, while those that prohibit ramming do so citing the damage which occurs to police vehicle including the possibility that the air-bag will deploy rendering the police vehicle incapable of continuing the pursuit. Additionally, while agencies allowing the P.I.T. maneuver are somewhat limited due to the requirement of training that accompanies the use of this technique, more agencies allow ramming yet almost none mention training for such a tactic.

Scott v. Harris, may simply be the United States Supreme Court’s opportunity to answer a question that was left open in a previous case. The question is can an officer constitutionally use deadly force to stop a motorist who is fleeing from the officer, where the flight itself creates the potential danger of serious bodily harm or death to others in the area of the pursuit.

In Brosseau v.Haugen the United States Supreme Court examined a case involving the use of deadly force by Officer Brosseau of the Puyallup, Washington Police Department who shot Kenneth Haugen in the back as he fled in his vehicle from the police.

The concept of qualified immunity involves shielding a police officer from a lawsuit where the officer’s actions do not violate clearly established federal rights. In other words, where the law is unclear on a particular course of conduct an officer does not have notice that the conduct is wrong and is immune from suit.

In analyzing whether an officer is entitled to qualified immunity, a court undertakes a two-step process. The first step asks the question: Did the officer’s conduct violate the constitution? If the answer to this question is no, then the officer is not liable and the case is over. During this analysis the court looks at all the facts in the light most favorable to the person suing the police officer. If the answer to this first question is yes, the officer’s conduct did violate some right then the court proceeds to a second question. The second question is: Was the right so clearly established that a reasonable police officer would know that his or her conduct violated the right. If the answer to this question is “no” the officer again escapes liability because he or she did not know that the conduct in question was bad. Only if the answer is that a reasonable police officer was on notice that the conduct was bad, could the lawsuit proceed. [This two-step process was outlined by the United States Supreme Court in Saucier v. Katz, 533 U.S. 194 (2001).]

In Brosseau v. Haugen, the United States Court of Appeal for the 9th Circuit had ruled that Officer Brosseau was not entitled to qualified immunity in her use of deadly force against Kenneth Haugen.

Officer Brosseau began investigating Haugen as the result of a complaint filed by Glen Tamburello, a former crime partner of Haugen, who reported that Haugen had stolen tools from him. During her investigation, Officer Brosseau learned that Haugen had felony warrants for his arrest.

The following day, Tamburello confronted Haugen in Haugen’s driveway. The confrontation escalated to a full-blown disturbance which prompted the response of the police, including Officer Brosseau. When Officer Brosseau arrived, Haugen fled on foot. While officers searched for Haugen they “instructed Tamburello and Atwood to remain in Tamburello’s pickup. They instructed Deanna Nocera, Haugen’s girlfriend who was also present with her 3-year-old daughter, to remain in her small car with her daughter. Tamburello’s pickup was parked in the street in front of the driveway; Nocera’s small car was parked in the driveway in front of and facing the Jeep [Haugen’s Jeep]; and the Jeep was in the driveway facing Nocera’s car and angled somewhat to the left. The Jeep was parked 4 feet away from Nocera’s car and 20 to 30 feet away from Tamburello’s pickup.”[The detailed analysis of the vehicles positions is important to the Court’s decision as to potential threat to Nocera and her child as well as Tamburello and Atwood when Haugen attempted to flee in the Jeep]

At some point Haugen was spotted and Officer Brosseau pursued him on foot to his Jeep. Brosseau believed that Haugen was running to the Jeep to retrieve a weapon. Haugen entered the Jeep and locked the door. He then began rummaging for his keys. Officer Brosseau used her handgun to smash the driver’s window and attempted to reach in and stop Haugen striking Haugen with her gun in the process. Haugen was able to start the car. “As the Jeep started or shortly after it began to move, Brosseau jumped back and to the left. She fired one shot through the rear driver’s side window at a forward angle, hitting Haugen in the back. She later explained that she shot Haugen because she was ‘fearful for the other officers on foot who she believed were in the immediate area and for the occupied vehicles [Nocera and her child as well as Tamburello and Atwood] in Haugen’s path and for any other citizens who might be in the area.’” Haugen continued to flee but stopped after realizing he had been shot. Haugen pled to a felony eluding charge which included the element of “a wanton or willful disregard for the lives…of others.” Haugen filed a lawsuit based upon the shooting.

In analyzing Brosseau’s qualified immunity claim, the United States Court of Appeal for the 9th Circuit concluded on the first question of qualified immunity [Did the officers conduct violate a federally protected right?] that Officer Brosseau’s use of deadly force violated a federally protected right. In its review, the United States Supreme Court asserted “We express no view as to the correctness of the Court of Appeal’s decision on the constitutional question itself. We believe that, however that question is decided, the Court of Appeals was wrong on the issue of qualified immunity.” [The second question of the analysis-Was the right so clearly established that a reasonable officer know that the conduct violated a federally protected right.”

The Court in reviewing lower court cases on this issue pointed out that some cases had found no violation of the 4th Amendment where fleeing motorists who posed a threat had been shot as well as cases where summary judgment and qualified immunity had been denied where officers shot the fleeing motorists. The Court concluded that these cases demonstrate that the use of deadly force against a fleeing motorist requires a fact-driven analysis and that the law in this area was not clearly established thus Officer Brosseau should have been granted qualified immunity.

Between now and June of 2007, the United States Supreme Court will render a decision in Scott v. Harris. It is one that all of law enforcement should keep an eye on due to its impact on policy, training related to pursuits and use of force.

Citations:

  1. Harris v. Coweta County, 433 F.3d 807 (11th Cir. en banc 2005), cert. granted U.S. Supreme Court Scott v. Harris, 2006 U.S. LEXIS 8010 (U.S., Oct. 27, 2006)
  2. See, Boveri v. Town of Saugas, 113 F. 3d 4 (1st Cir. Mass. 1997) (“To be sure, as the chase progressed, the Honda’s wild driving plainly created an escalating risk of harm to bystanders—but the officers’ continuation of the pursuit must be judged against the exigencies of the situation that had developed. The law enforcement interest in apprehending the Honda had grown, as had the danger to the public inherent in leaving a reckless (potentially inebriated) driver on the road. ”)
  3. See e.g. Jefferson County Colorado (CALEA ACCREDITED) Policy 752 Vehicular Pursuit: Directing officers to consider: “Any actions the suspect(s) may have taken since the inception of the pursuit. This includes any ‘new’ violations of criminal statutes e.g. felony eluding. ”
  4. Brosseau v.Haugen, 543 U.S.194 (2004),


 

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