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The U.S. Supreme Court, we have learned this term, has succumbed, like most Americans, to the Die Hard/ Terminator culture of Hollywood. That culture, really a way to sell movies, presents murder, major mayhem and all-out destruction to generate not only fear and excitement, but also, and most importantly, enthusiastic rooting for the hero at the center of the action. In Scott v. Harris, the court, relying on a filmed account of police action, acted less like a group of principled jurists and more like a disaster-film audience. Viewing a videotape it labeled a “Hollywood style car chase of the most frightening sort,” the court decided that the police had acted reasonably as a matter of law in seriously injuring a fleeing motorist, and awarded summary judgment to the police. In doing so, the court surprisingly, and without precedent, reversed the findings of two lower federal courts that a jury should be allowed to decide whether the police conduct in the chase was reckless and unreasonable under the Fourth Amendment. The high-speed chase began after Victor Harris, a 19-year-old with no criminal record, was clocked late at night by a Georgia police officer traveling 73 miles per hour in a 55-mph zone. Instead of pulling over when he saw the police, Harris sped off, followed by several police vehicles, sirens blaring, in a chase that covered 10 miles over six minutes. The chase, captured on a police videotape, which the court makes available at www.supremecourtus.gov/opinions/video/scott_v_harris.rmvb, shows Harris passing several cars on his right that apparently had pulled over after hearing the sirens, and a few cars passing from the opposite direction. There were no pedestrians and very few vehicles, as police had blockaded the two intersections along the route. After receiving permission to “take [Harris] out,” Officer Timothy Scott in the lead car rammed the rear of Harris’ car, propelling him down an embankment and causing injuries that made him a quadriplegic. Harris filed a civil rights lawsuit claiming that the police used excessive and unreasonable force to apprehend him in violation of the Fourth Amendment. A federal district judge denied the police’s motion for summary judgment, and the 11th U.S. Circuit Court of Appeals unanimously affirmed, finding that there were material issues of fact that required submission of the case to a jury. The Supreme Court, in an 8-1 opinion by Justice Antonin Scalia, reversed and ordered summary judgement, concluding that no jury could find that the police behaved unreasonably. The video of the chase elicited widely different reactions from all of the judges. Thus, the 11th Circuit judges saw the highway as “largely clear,” with “little to no vehicular or pedestrian traffic,” saw Harris driving in a “non-aggressive fashion” and “using his indicators for turns,” and found that the police had “issued absolutely no warning prior to using deadly force.” Scalia’s opinion, by contrast, saw Harris’ vehicle “racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast,” “swerving” around cars, “forcing” cars onto the shoulders to avoid being hit, “running multiple red lights” and “posing an actual and imminent threat to the lives of any pedestrians who might have been present.” Justice John Paul Stevens, in his dissent, suggested that his colleagues might have been “unduly frightened” by the video, especially images “that looked like bursts of lightening or explosions,” but were “merely the headlights of vehicles zooming by in the opposite lane.” Stevens also intimated that the federal judges in Georgia might have been more familiar with the Georgia highways and high-speed driving on two-lane roads, and reacted more dispassionately. Should the police have terminated the chase rather than “taken out” Harris? After all, he was not fleeing from the commission of a violent felony. The police had his license plate number and could easily have located him. To the majority, however, ending the chase would have been cowardly, an unworthy Hollywood ending. So Scalia, identifying with the hero, imagined the untold dangers that might have resulted if the police had ended the chase, a view markedly different from that of the Georgia police chiefs who, in an amicus brief, wrote that a chase should be discontinued when the danger to the public outweighs the danger of allowing the suspect to remain at large. Did Harris’ actions rise to a level warranting the use of deadly force? The Hollywood culture might say yes, but the several federal judges on the district and circuit courts, invoking well-settled rules of law, believed that material issues of fact should most appropriately be decided by a jury. A majority of the Supreme Court, apparently overcome by its own reactions to the images on the video, replaced the rule of law with its own ad hoc, unprincipled and idiosyncratic judgment. Bennett L. Gershman is a professor at Pace University School of Law and the author of Trial Error and Misconduct (Lexis Law Publishing 1997).

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