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Atlanta lawyers to face off at U.S. high courtAt issue is when police can stop fleeing suspects by ramming their carsBy ALYSON M. PALMER, Staff Reporter Craig T. Jones won his first case at the U.S. Supreme Court by arguing that the 11th U.S. Circuit Court of Appeals was being too easy on law enforcement officers accused of violating someone’s civil rights. But when Jones appears before the high court early next year, he’ll be defending the 11th Circuit and its tough stance against a Coweta County officer facing a civil rights suit by a man injured during a high-speed chase. The Edmond & Jones partner is not thrilled that his wins in the chase case are up in the air, but he has found a way to see the argument positively. “Last time I had to really condemn the 11th Circuit,” he said. “Now I’m defending the 11th Circuit, and that feels a lot better�at least coming back home again.” At issue is the standard by which police officers are entitled to qualified immunity, the legal protection they get from suits claiming they violated someone’s civil rights unless clearly established law had put the officers on notice that their actions were out of bounds. In 2002′s Hope v. Pelzer, 536 U.S. 730, Jones won a 6-3 decision in which the majority held that the 11th Circuit was wrong to grant qualified immunity to Alabama prison guards accused of handcuffing a chain-gang member to a hitching post and leaving him in the hot sun. Jones’ next case involves the claims of Victor Harris, who was left a quadriplegic in 2001 after his car was in a collision with a squad car being driven by Coweta County Sheriff’s Deputy Timothy Scott. In September 2003, U.S. District Judge Willis B. Hunt Jr. refused to give Scott qualified immunity from Harris’ suit. Scott had argued that he was justified in bumping Harris’ vehicle because Harris had been driving dangerously at high speeds and had hit Scott’s vehicle. But Hunt said a jury could find that Scott’s use of force was disproportional to the risk that Harris posed, given evidence that Harris’ only crime had been driving 73 miles per hour in a 55-mile-per-hour zone and that the suspect had kept his car under control, even using turn signals. In April 2005, 11th Circuit Judge Rosemary Barkett penned an opinion agreeing that Scott wasn’t entitled to qualified immunity. Scott petitioned for rehearing by the whole 11th Circuit, but that only prompted the original panel�Barkett and her colleagues Judge Stanley F. Birch Jr. and Senior Judge Emmett Ripley Cox�to issue a beefed-up order expanding upon Barkett’s earlier arguments. She wrote that since the high court had issued Tennessee v. Garner, 471 U.S. 1 in 1985, “officers have been on notice that they may not use deadly force to seize a fleeing suspect unless the suspect poses a significant threat of death or serious physical injury.” There was evidence that Harris posed little, if any, actual threat to pedestrians or other motorists, said the panel, because the roads were largely empty and Harris had control of his vehicle. The Coweta County officer again sought the whole 11th Circuit’s consideration, but that was denied. The deputy’s attorney at Atlanta’s Freeman Mathis & Gary asked the Supreme Court to look at the case, arguing that the 11th Circuit decision left officers no discretion to pursue and stop reckless drivers. Last month the justices agreed to hear the case, Scott v. Harris, No. 05-1631, and oral argument is expected to occur in February. Freeman Mathis’ Phillip W. Savrin’s success in getting the high court’s attention is the equivalent of winning the appellate practice lottery�the court’s Web site says the court grants review in approximately 100 of the more than 7,000 petitions filed with it each term. It will be his first trip to the high court. Savrin says that he thinks the Supreme Court agreed to look at the case because the 11th Circuit ruling didn’t fit with prior precedent. “There is no case before this one [saying] that the use of a police officer’s vehicle in this manner constitutes deadly force,” said Savrin. The Garner decision cited by the 11th Circuit panel doesn’t apply, said Savrin, because his client’s actions were not simply about apprehending a suspected traffic law violator, but about protecting the public from an unsafe driver. Almost the entire pursuit was captured on a police cruiser vehicle, said Savrin. “If you look at the video you can see that [Harris] was driving in a reckless, dangerous manner.” He acknowledged that the plaintiff’s counsel will seize upon the notion that Scott didn’t know for sure that anyone was in Harris’ path. But Savrin discounted that argument. That would mean that an officer would have to wait for a child on a bicycle�or another innocent bystander�to cross the path of a speeding suspect before he could use force to stop him, said Savrin. Jones, who came to the 11th Circuit on Tuesday to watch oral argument in an unrelated high-speed-chase case, said the arguments Savrin used to get the high court’s attention are just “spin.” Jones expressed some concern that the high court might back off the requirement that a suspect pose an immediate threat to justify the use of deadly force. “If you allow anything less than an immediate threat, where do you draw the line … can you shoot any speeder because someone might come around the bend?” But Jones sounded confident that the justices would not take that approach. In taking the case, said Jones, “their concern apparently was that the police have the ability to pursue people and stop fleeing violators. … I think when they see the facts of this case they’re going to realize there’s a whole lot more.” Alyson M. Palmer can be reached at [email protected]

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