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Scott v. Harris - Death Knell for Deadly Force Policies and Garner Jury Instructions, Blum, 2008

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LEGAL STUDIES RESEARCH PAPER SERIES
RESEARCH PAPER 08-06
January 31, 2008

Scott v. Harris: Death Knell for Deadly Force Policies and Garner Jury
Instructions?
Karen M. Blum
Professor of Law, Suffolk University Law School

This paper can be downloaded without charge from the Social Science Research Network:
http://ssrn.com/abstract=1089089

SUFFOLK UNIVERSITY LAW SCHOOL | BOSTON, MASSACHUSETTS
120 Tremont Street, Boston, MA 02108-4977 | www.law.suffolk.edu

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SCOTT V. HARRIS: DEATH KNELL FOR DEADLY
FORCE POLICIES AND GARNER JURY
INSTRUCTIONS?
Karen M. Blum†
CONTENTS
INTRODUCTION ............................................................................................45
I.
BACKGROUND AND LOWER COURT DECISIONS ...............................45
II.
SUPREME COURT DECISION ..............................................................52
III. DEADLY FORCE IS DIFFERENT ..........................................................56
IV. SCOTT’S FAILURE TO “CLEARLY ESTABLISH” THE LAW ..................60
V.
SCOTT’S IMPLICATIONS FOR GARNER “DEADLY FORCE”
INSTRUCTIONS...................................................................................70
CONCLUSION ................................................................................................76

INTRODUCTION
In response to the kind invitation of the Syracuse Law Review, I have
put together some brief comments and thoughts about the Supreme Court’s
recent decision in Scott v. Harris.1 While many criticisms might be leveled
at the opinion, this piece raises concerns about the Court’s refusal to accord
special consideration to the use of deadly force, and the implications such
refusal may have for both deadly force policies adopted by law
enforcement agencies throughout the country and deadly force jury
instructions currently required or given as a matter of discretion in federal
trial courts.
I. BACKGROUND AND LOWER COURT DECISIONS
A prelude to Scott was the Court’s decision in Brosseau v. Haugen.2

† Professor of Law, Suffolk University Law School. The author was Counsel of
Record on an amicus brief submitted by the National Police Accountability Project on
behalf of the respondent in Scott v. Harris. See generally Brief of the National Police
Accountability Project as Amicus Curiae Supporting Respondents, Scott v. Harris, 127 S.
Ct. 1769 (2007) (No. 05-1631). Many thanks to my very able research assistant, Christianne
Reiniger, and to Jack Ryan of the Legal & Liability Risk Management Institute.
1. 127 S. Ct. 1769 (2007).
2. 543 U.S. 194 (2004) (per curiam).

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In Brosseau the Court summarily reversed a Ninth Circuit decision
denying qualified immunity to an officer who had shot a suspect in the
back as the suspect was attempting to flee in his vehicle.3 The facts,
viewed in the light most favorable to Haugen, established that Officer
Brosseau responded to a call reporting a fight between Haugen and two
other men in the yard of Haugen’s mother.4 Haugen ran away when
Brosseau arrived.5 Two other officers with a K-9 arrived to help search the
neighborhood.6 Haugen’s girlfriend and her daughter were instructed to
remain in their car, parked in the driveway, and the two men who were
fighting with Haugen were told to remain in their pick-up, parked in the
street in front of the driveway.7 Haugen eventually returned and attempted
to flee in his Jeep, which was also parked in the driveway.8 Brosseau, with
her gun pointed at Haugen, ordered him to get out of the vehicle.9 When
Haugen ignored the command, Brosseau repeatedly hit the driver’s window
with the handgun.10 Finally breaking the window, Brosseau struck Haugen
on the head with the butt of her gun.11 Still unsuccessful in preventing
Haugen from starting the Jeep, Brosseau stepped back and fired a shot
through the rear driver’s-side window, hitting Haugen in the back.12
Haugen drove a short distance down the street and stopped.13 Brousseau’s
asserted justification for shooting was her fear that Haugen presented a
threat of serious bodily harm to the other officers on foot, who were
somewhere in the neighborhood, and the persons in the occupied vehicles
in Haugen’s driveway.14 Haugen survived and “subsequently pleaded
guilty to the felony of ‘eluding,’” which, according to the Court,
constituted an admission that he drove with “‘wanton or wilful disregard
for the lives . . . of others.’”15
3. Id.; Haugen v. Brosseau, 339 F.3d 857, 874 (9th Cir. 2003), amended by and reh’g
denied, 351 F.3d 372 (9th Cir. 2003), rev’d, 543 U.S. 194 (2004).
4. Brosseau, 543 U.S. at 195. One of the men, a former crime partner of Haugen, had
reported to Brosseau the previous day that Haugen had stolen some tools, and “Brosseau
later learned that there was a felony no-bail warrant out for Haugen’s arrest on drug and
other offenses.” Id.
5. Id. at 196.
6. Id.
7. Id.
8. Brosseau, 543 U.S. at 196.
9. Id.
10. Id.
11. Id.
12. Id. at 196-97.
13. Brosseau, 543 U.S. at 197.
14. Id.
15. Id. at 197 (quoting WASH. REV. CODE § 46.61.024 (2001)).

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Haugen filed a Section 1983 suit and, in response to Brosseau’s
motion for summary judgment based on qualified immunity, the Ninth
Circuit engaged in the now familiar two-step analysis the Supreme Court
has mandated lower courts apply when confronting the qualified immunity
defense.16 On the first prong of the analysis, the Court of Appeals
16. Haugen, 339 F.3d at 862 (citing Saucier v. Katz, 533 U.S. 194 (2001)). In Saucier,
the Court reinforced its instruction to lower courts to first assess whether the facts pleaded
by the plaintiff state a constitutional violation, and, only if that question is answered
affirmatively, to proceed to the second step of asking “whether the right was clearly
established” at the time of the challenged conduct. Saucier, 533 U.S. at 201. This “rigid
‘order of battle,’” Brosseau, 543 U.S. at 201-02 (Breyer, J., joined by Scalia, J. and
Ginsburg, J., concurring) has been criticized by five Justices, four of whom are still on the
Court. See, e.g., Morse v. Frederick, 127 S. Ct. 2618, 2638 (2007) (Breyer, J., concurring in
part and dissenting in part) (“This Court need not and should not decide this difficult First
Amendment issue on the merits. Rather, I believe that it should simply hold that qualified
immunity bars the student’s claim for monetary damages and say no more.”); Wilkie v.
Robbins, 127 S. Ct. 2588, 2617 n.10 (2007) (Ginsburg, J., joined by Stevens, J., concurring
in part and dissenting in part) (“As I have elsewhere indicated, in appropriate cases, I would
allow courts to move directly to the second inquiry.”); Scott, 127 S. Ct. at 1780 (Breyer, J.,
concurring) (“[L]ower courts should be free to decide the two questions in whatever order
makes sense in the context of a particular case.”); Brosseau, 543 U.S. at 201 (Breyer, J.,
joined by Scalia, J., and Ginsburg, J., concurring) (expressing concern “that the current rule
rigidly requires courts unnecessarily to decide difficult constitutional questions when there
is available an easier basis for the decision (e.g., qualified immunity) that will satisfactorily
resolve the case before the court.”); Bunting v. Mellon, 541 U.S. 1019, 1019 (2004)
(Stevens, J., joined by Ginsburg J., and Breyer, J., respecting the denial of certiorari) (noting
the problem posed by an “unwise judge-made rule under which courts must decide whether
the plaintiff has alleged a constitutional violation before addressing the question whether the
defendant state actor is entitled to qualified immunity.”); Bunting, 541 U.S. at 1023 (Scalia,
J., joined by Rehnquist, C.J., dissenting) (urging that “this general rule [of refusing to
entertain an appeal by a party on an issue as to which he prevailed] should not apply where a
favorable judgment on qualified-immunity grounds would deprive a party of an opportunity
to appeal the unfavorable (and often more significant) constitutional determination.”).
Lower courts have likewise been critical of the mandatory two-step approach. See,
e.g., McClish v. Nugent, 483 F.3d 1231, 1253 n.1 (11th Cir. 2007) (Anderson, J., concurring
specially) (criticizing the mandatory constitutional-question-first approach and noting that
“twenty-eight states and Puerto Rico have recently urged the Supreme Court in an amicus
brief to reconsider its mandatory Saucier approach to qualified immunity.”) (citing Brief for
the State of Illinois et al. as Amici Curiae Supporting Petitioner, Scott v. Harris, 127 S. Ct.
1769 (2007) (No. 05-1631)); Robinette v. Jones, 476 F.3d 585, 592 n.8 (8th Cir. 2007)
(“[T]he ‘law’s elaboration from case to case,’ would be ill served by a ruling here, where the
parties have provided very few facts to define and limit any holding on the reasonableness
of the execution of the arrest warrant.” (citation omitted)); Buchanan v. Maine, 469 F.3d
158, 168 (1st Cir. 2006) (“We do not think the law elaboration purpose will be well served
here, where the Fourth Amendment inquiry involves a reasonableness question which is
highly idiosyncratic and heavily dependent on the facts.”); Hydrick v. Hunter, 449 F.3d 978,
988 (9th Cir. 2006) (repeating the observation that “a motion to dismiss on qualified
immunity grounds puts the court in the difficult position of deciding ‘far-reaching
constitutional questions on a nonexistent factual record.’”) (quoting Kwai Fun Wong v.

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concluded that a reasonable jury, viewing the evidence in the light most
favorable to Haugen, could find that at the time Brosseau fired her gun,
Haugen did not pose a significant threat of harm to her or others and that
Brosseau’s conduct violated the Fourth Amendment.17 On the question of
whether the law gave “fair warning”18 that Brosseau’s alleged conduct was
unlawful, the court relied on the “‘special rule’ governing the use of deadly
force” established by the Supreme Court in Tennessee v. Garner.19 The
Court noted that “[u]nder Garner, deadly force is only permissible

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.’”20 “Viewing the evidence in Haugen’s favor, [the Court
concluded that] Brosseau’s use of deadly force was a clear violation
of Garner. . .”21
The Supreme Court granted certiorari on only the second prong of the
immunity question, whether the law gave fair warning to the officer that
her conduct was unlawful, leaving untouched the Ninth Circuit’s
determination on the first prong of the analysis, that the challenged conduct
did violate the Fourth Amendment.22 In the Court’s view, Graham v.

United States, 373 F.3d 952, 957 (9th Cir. 2004)); Lyons v. City of Xenia, 417 F.3d 565,
583 (6th Cir. 2005) (Sutton, J., joined by Gibbons, J., concurring) (urging the Supreme
Court to “permit lower courts to make reasoned departures from Saucier’s inquiry where
principles of sound and efficient judicial administration recommend a variance.”).
Despite the legitimate concerns raised about requiring the “rigid order of battle” in all
cases, the Court in Scott did not deem that case the appropriate vehicle for revisiting the
two-step analysis. The Court observed:
Prior to this Court’s announcement of Saucier’s “rigid ‘order of battle,’” we had
described this order of inquiry as the “better approach,” though not one that was
required in all cases. There has been doubt expressed regarding the wisdom of
Saucier’s decision to make the threshold inquiry mandatory, especially in cases
where the constitutional question is relatively difficult and the qualified immunity
question relatively straightforward. We need not address the wisdom of Saucier
in this case, however, because the constitutional question with which we are
presented is . . . easily decided. Deciding that question first is thus the “better
approach,” regardless of whether it is required.
Scott, 127 S. Ct. at 1774 n.4 (citations omitted).
17. Haugen, 339 F.3d at 874.
18. See Hope v. Pelzer, 536 U.S. 730, 741 (2002) (formulating the “salient question” in
the qualified immunity inquiry as “whether the state of the law” at the time gave “fair
warning” that the challenged conduct was unconstitutional).
19. Haugen, 339 F.3d at 873. See Tennessee v. Garner, 471 U.S. 1, 3 (1985).
20. Haugen, 339 F.3d at 873 (citing Garner, 471 U.S. at 11).
21. Id. at 874.
22. Brosseau, 543 U.S. at 195. The Court “express[ed] no view as to the correctness of
the Court of Appeals’ decision on the constitutional question itself.” Id. at 198.

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Connor23 and Garner “are cast at a high level of generality” and, by
themselves, are insufficient to give fair warning of clearly established
rights in other than “obvious” cases.24 The Court observed that Fourth
Amendment excessive force cases tend to be fact-specific and concluded
that no cases “squarely govern[ed]” the situation confronted by Officer
Brosseau, “whether to shoot a disturbed felon, set on avoiding capture
through vehicular flight, when persons in the immediate area are at risk
from that flight.”25
I assume the Court’s avoidance of the “merits” question in Brosseau
was not based on agreement with the Ninth Circuit’s conclusion, but
reflected concern about discounting the record evidence as established by
the Court of Appeals in its determination that a jury could find a Fourth
Amendment violation based on the facts viewed in the light most favorable
to Haugen.26 The Court of Appeals made the following findings in support
of its conclusion:
Viewing the evidence in Haugen’s favor, Brosseau shot Haugen in the
back even though he had not committed any crime indicating that he
posed a significant threat of serious physical harm; even though
Brosseau had no objectively reasonable evidence that Haugen had a gun
or other weapon; even though Haugen had not started to drive his
vehicle; and even though Haugen had a clear path of escape. Viewing
the evidence in Haugen’s favor, there is insufficient objective evidence
to support Brosseau’s stated concern that, at the time she shot him,
Haugen posed a significant risk to police officers or others in the area.27

Scott v. Harris presented a much better opportunity for the Court to address
the Fourth Amendment issue. There was a high-speed pursuit, a video, and
no shooting.28
On March 29, 2001, Victor Harris was clocked traveling seventy-three
miles per hour in a fifty-five mile-per-hour zone in Coweta County,
Georgia.29 When he ignored attempts by Deputy Reynolds to pull him
over, a high-speed pursuit ensued.30 Timothy Scott, another Coweta
County deputy, with no knowledge as to why Harris was being pursued,

23.
24.
25.
26.
27.
28.
29.
30.

490 U.S. 386 (1989).
Brosseau, 543 U.S. at 199.
Id. at 200-01. See id. at 202-08 (Stevens, J., dissenting).
See Haugen, 339 F.3d at 874.
Id.
Scott, 127 S. Ct. at 1772-75.
Id. at 1772.
Id.

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joined the chase and eventually took over as the lead vehicle in the
pursuit.31 The pursuit lasted approximately six minutes and covered nearly
ten miles before Deputy Scott asked for permission to perform a Precision
Intervention Technique or “PIT” maneuver on Harris’s car.32 When given
approval to “‘take him out’” by the supervisor monitoring the pursuit by
radio, Scott realized a PIT maneuver could not safely be performed at
speeds approaching ninety miles per hour, so he bumped, or rammed,
Harris’s vehicle straight on, resulting in Harris losing control, running
Harris “was rendered a
down an embankment and crashing.33
quadriplegic” as a result.34
Harris filed a civil action against Scott and others under 42 U.S.C. §
1983, alleging excessive use of force in his seizure.35 Scott’s motion for

31. Id. at 1773; Harris v. Coweta County, 433 F.3d 807, 815 (11th Cir. 2005), rev’d
and remanded, Scott v. Harris, 127 S. Ct. 1769 (2007), on remand, Harris v. Coweta
County, 489 F.3d 1207 (11th Cir. 2007).
32. Scott, 127 S. Ct. at 1773.
While referenced by several different names (e.g., Pursuit Intervention Technique,
Pursuit Immobilization Technique, or Precision Immobilization Technique), the
PIT is generally described as an “intentional contact between a police vehicle and
a pursued vehicle in such a manner as to cause a 180-degree spin and subsequent
stop of the pursued vehicle.”
Brief for the National Police Accountability Project as Amicus Curiae Supporting
Respondent, at 11, Scott v. Harris, 127 S. Ct. 1769 (2007) (No. 05-1631) (quoting Portland,
Oregon Vehicle Pursuits (7a)). Most policies that allow or provide for the PIT maneuver
recommend that it be performed at speeds not in excess of 35-40 mph, and either forbid
vehicle contact at higher speeds or equate such contact with the use of “deadly force” and
prohibit it unless deadly force would be authorized. See Brief for the National Police
Accountability Project, at 11-20, Scott, 127 S. Ct. 1769 (No. 05-1631).
33. Scott, 127 S. Ct. at 1773 & n.1; Harris, 433 F.3d at 810-11.
34. Scott, 127 S. Ct. at 1773.
35. Scott, 127 S. Ct. at 1773. There was no question that Harris was seized when Scott
intentionally terminated his movement by making contact with the vehicle. See Scott, 127
S. Ct. at 1776. See also Harris, 433 F.3d at 812 (“The district court concluded, and Scott
does not contest, that Harris was seized by Scott when the latter rammed his vehicle,
causing him to lose control and crash.”).
42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, except that in
any action brought against a judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall not be granted unless a
declaratory decree was violated or declaratory relief was unavailable.
42 U.S.C. § 1983 (2003).

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summary judgment based on qualified immunity was denied by the district
court.36 The denial was then affirmed by the Court of Appeals for the
Eleventh Circuit.37 Addressing the constitutional question first, the Court
concluded that,
view[ing the summary judgment evidence] in the light most favorable to
[Harris], a jury could find that [P]etitioner used “deadly force” when he
made contact with [R]espondent’s vehicle to terminate a high-speed
pursuit;[38] that [R]espondent was a non-violent misdemeanant whose
underlying offense was speeding . . . ; that there was no probable cause
to believe “that [R]espondent had committed a crime involving the
infliction or threatened infliction of serious physical harm[;]” and that
[R]espondent, “prior to the chase, pose[d] [no] imminent threat of
serious physical harm to [[P]etitioner] or others[;]” that there were other
means of tracking [R]espondent down because (pursuing officers had a
description of his vehicle and the license plate number); and that
absolutely no warning was given to [R]espondent that [P]etitioner
intended to use deadly force to terminate the pursuit.39

Furthermore, the Court determined
a jury could conclude that Respondent, while traveling at high rates of
speed (between 70 and 90 mph) and violating various traffic laws
(Respondent passed vehicles on double yellow control lines and ran two
red lights), remained in control of his vehicle at all times prior to being
rammed by Petitioner’s police cruiser, slowed for turns and
intersections, and typically used his directional signals. In addition, a
jury could find Respondent never used his vehicle aggressively against
Petitioner, pedestrians or other motorists during the course of the
pursuit. In fact, the evidence would support a finding that Respondent
attempted to avoid a collision with Petitioner’s police cruiser in the drug
store parking lot.40

36. Harris v. Coweta County, No. CIVA 3:01CV148, 2003 WL 25419527, at *6 (N.D.
Ga. Sept. 25, 2003).
37. Harris, 433 F.3d at 821.
38. Id. The generally accepted definition of “deadly force” is that set out in Section
3.11(2) of the Model Penal Code: “[F]orce that the actor uses with the purpose of causing or
that he knows to create a substantial risk of causing death or serious bodily injury.” MODEL
PENAL CODE § 3.11(2) (2001). See Harris, 433 F.3d at 814 (“‘Deadly force’ is force that
creates ‘a substantial risk of causing death or serious bodily injury.’”) (quoting Pruitt v. City
of Montgomery, 771 F.2d 1475, 1479 n.10 (11th Cir. 1985).
39. Brief for the National Police Accountability Project as Amicus Curiae Supporting
Respondent, at 2-3, Scott v. Harris, 127 S. Ct. 1769 (2007) (No. 05-1631). See Harris 433
F.3d at 810, 815 & n.10.
40. Brief for the National Police Accountability Project as Amicus Curiae Supporting

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Looking at all of the evidence in the light most favorable to Harris, the
Court concluded that a reasonable jury could find that the preconditions to
the use of deadly force established by Tennessee v. Garner, were not
present when Scott rammed Harris, and thus, the use of deadly force to
terminate the pursuit would be unreasonable.41
Having determined Harris alleged facts sufficient to make out a
Fourth Amendment violation, the Eleventh Circuit next considered whether
the law at the time the incident occurred was sufficiently clear to give a
reasonable officer fair warning that ramming Harris’s vehicle, under the
particular circumstances confronting Scott, violated the Constitution.42
The Court concluded that “by 2001 the law was clearly established that a
seizure must be reasonable under the circumstances, which include a
review of the offense charged; that an automobile can be used as deadly
force; and that deadly force cannot be used in the absence of the Garner
preconditions.”43
II. SUPREME COURT DECISION
The Supreme Court, with only Justice Stevens dissenting, reversed the
denial of qualified immunity.44 Grounding its decision on the first prong of
the Saucier analysis, the Court held that Scott’s conduct was reasonable as
a matter of law.45 For eight of the Justices, the videotape, submitted as part

Respondent, at 3, Scott v. Harris, 127 S. Ct. 1769 (2007) (No. 05-1631) (citations omitted).
See Harris, 433 F.3d at 810, 815 (“Harris stayed in control of his vehicle, utilizing his
blinkers while passing or making turning maneuvers.”).
41. 433 F.3d at 815. In Garner, the Supreme Court held:
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, it is not constitutionally
unreasonable to prevent escape by using deadly force. Thus, if the suspect
threatens the officer with a weapon or there is probable cause to believe that he
has committed a crime involving the infliction or threatened infliction of serious
physical harm, deadly force may be used if necessary to prevent escape, and if,
where feasible, some warning has been given.
471 U.S. at 11-12. In Harris, the court noted that:
[N]one 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 of serious physical harm, nor did Harris, prior to the chase, pose an
imminent threat of serious physical harm to Scott or others.
433 F.3d at 815.
42. Id. at 817.
43. Id. at 818-19.
44. Scott, 127 S. Ct. at 1779.
45. Id.

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of the record, dictated a finding that Harris drove in a reckless and
dangerous manner, presenting a real threat to bystanders and other drivers
on the road.46 No reasonable juror could conclude otherwise. The
majority’s rather simplistic “anoint[ing of] the film version of the disputed
events as the truth,” has been well-noted and criticized by my colleague,
Professor Jessica Silbey.47 Once the Court decided that the videotape was
incontrovertible evidence that Harris presented a threat to others on the
road, the question remained as to whether Scott’s use of force to eliminate
the threat was objectively reasonable.48 Respondent argued
that Garner prescribes certain preconditions that must be met before
Scott’s actions can survive Fourth Amendment scrutiny: (1) the suspect
must have posed an immediate threat of serious physical harm to the
officer or others; (2) deadly force must have been necessary to prevent
escape; and (3) where feasible, the officer must have given the suspect

46. Id. at 1775-76. The Court observed that, “[f]ar from being the cautious and
controlled driver the lower court depicts, what we see on the video more closely resembles a
Hollywood-style car chase of the most frightening sort, placing police officers and innocent
bystanders alike at great risk of serious injury.” Id. Indeed, during oral argument, Justice
Scalia made the comment, “[h]e created the scariest chase I ever saw since ‘The French
Connection.’” Transcript of Oral Argument at 28, Harris, 127 S. Ct. 1769 (No. 05-1631).
47. See Jessica Silbey, Op-Ed., Justices Taken in by Illusion of Film, BALTIMORE SUN,
May 13, 2007, at 21A; see also Bennett L. Gersham, Justices Go Hollywood, 29 NAT’L L.J.,
Aug. 1, 2007, at 27 (“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.”). My own reaction to the film was amazement
that a police officer would engage is such reckless conduct. To borrow, from another
context, the words of Justice Scalia, “[s]eldom has an opinion of this Court rested so
obviously upon nothing but the personal views of its Members.” Atkins v. Virginia, 536
U.S. 304, 338 (2002) (Scalia, J., dissenting). In the wake of Scott, other courts are now
relying on video evidence to relate what “really” happened. See, e.g., Beshers v. Harrison,
495 F.3d 1260, 1262 n.1 (11th Cir. 2007) (rejecting the plaintiff’s factual allegations where
inconsistent with the majority’s interpretation of two videotapes taken from patrol cars
involved in pursuit); Williams v. City of Grosse Pointe Park, 496 F.3d 482, 486 (6th Cir.
2007) (affirming grant of summary judgment where the district court “relied almost
exclusively on the video captured by the camera in Miller’s cruiser for its determination that
Miller’s conduct was objectively reasonable.”); Sharp v. Fisher, No. 406CV020, 2007 WL
2177123, at *1 (S.D. Ga. July 26, 2007); Martinez v. City of Auburn, No. C06-0447, 2007
WL 2005584, at *1 (W.D. Wash. July 9, 2007); Miller v. Jensen, No. 06-CV-0328, 2007
WL 1574761, at *4 (N.D. Okla. May 29, 2007). But see Beshers, 495 F.3d at 1268-71
(Presnell, J., concurring) (offering a much different interpretation of the videos than that
perceived by the majority); Williams, 496 F.3d at 494 (Aldrich, J., dissenting) (“Although
the majority asserts that the video demonstrates that Miller reasonably believed that
Williams posed a threat of serious harm, the video and the record as a whole do not
demonstrate, beyond dispute, that Williams posed an immediate threat of serious harm to
Miller, Hoshaw, or to the public.”).
48. Scott, 127 S. Ct. at 1776.

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some warning.49

Justice Scalia, writing for the majority, rejected respondent’s
argument.50 His response, like his reliance on the video, was rather
simplistic:
Garner did not establish a magical on/off switch that triggers rigid
preconditions whenever an officer’s actions constitute “deadly force.”
Garner was simply an application of the Fourth Amendment’s
“reasonableness” test to the use of a particular type of force in a
particular situation.51

I think the Court’s singular reliance on the video is misguided and that
Victor Harris should have had an opportunity to present his case to a jury.
A jury might have found Scott’s conduct justifiable under the
circumstances or might have found his conduct violated Harris’ Fourth
Amendment right to be free from excessive force. Even if a jury had found
Scott’s conduct violated the Constitution, a judge might still have granted
qualified immunity on the second prong of the qualified immunity analysis,
depending on the jury’s determination of the facts.52 Regardless of how
one views Scott’s conduct, Justice Scalia’s treatment of Garner is
troubling. First, it reflects his own inability or unwillingness to recognize
that death is different and that the employment of deadly force should be
constrained by more stringent and more specific standards than the use of
non-deadly force.53 Removing “deadly force” from a special category of

49. Id. at 1777 (footnote omitted) (citing Brief of Respondent at 17-18, Scott v. Harris,
127 S. Ct. 1769 (2007) (No. 05-1631).
50. Id.
51. Id.
52. See Saucier v. Katz, 533 U.S. 194, 204-05 (2001) (holding that the merits of the
excessive force inquiry under the Fourth Amendment is distinct from the qualified immunity
inquiry and that an officer could have a reasonable belief that objectively unreasonable use
of force was reasonable).
53. That Justice Scalia does not admit to any distinction between deadly force and
excessive force in the context of seizures under the Fourth Amendment is unremarkable. He
has persistently denied the legitimacy, and even ridiculed, that strain of jurisprudence as it
has arisen under the Eighth Amendment. Compare Gregg v. Georgia, 428 U.S. 153, 188
(1976) (“While Furman did not hold that the infliction of the death penalty Per [sic] se
violates the Constitution’s ban on cruel and unusual punishments, it did recognize that the
penalty of death is different in kind from any other punishment imposed under our system of
criminal justice.”) and Woodson v. North Carolina, 428 U.S. 280, 322 (1976) (Rehnquist, J.,
dissenting) (“The plurality also relies upon the indisputable proposition that ‘death is
different’ for the result which it reaches in Part III-C.”) with Atkins v. Virginia, 536 U.S.
304, 337-38, 352 (2002) (Scalia, J., dissenting) (“Today’s decision is the pinnacle of our
Eighth Amendment death-is-different jurisprudence. Not only does it, like all of that
jurisprudence, find no support in the text or history of the Eighth Amendment; it does not

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force that triggers certain preconditions will encourage police agencies to
rewrite policies that currently treat deadly force as different, placing clear
restraints on its use. Second, a decision like Scott, to the extent that it is
bound up by the particular facts of the case, does nothing to clarify the law
or set the standard for future cases. To the extent it establishes a per se
rule, it is a dangerous one; in effect authorizing summary execution of
anyone who flees from the police in a motor vehicle. 54 Third, a one-size-

even have support in current social attitudes regarding the conditions that render an
otherwise just death penalty inappropriate. Seldom has an opinion of this Court rested so
obviously upon nothing but the personal views of its Members. . . . Today’s opinion adds
one more to the long list of substantive and procedural requirements impeding imposition of
the death penalty imposed under this Court’s assumed power to invent a death-is-different
jurisprudence.”). See also Abdul-Kabir v. Quarterman, 127 S. Ct. 1654, 1686 (2007)
(Scalia, J., dissenting) (“Whether one regards improvised death-is-different jurisprudence
with disdain or with approval, no one can be at ease with the stark reality that this Court’s
vacillating pronouncements have produced grossly inequitable treatment of those on death
row.”); Schriro v. Summerlin, 542 U.S. 348, 357 (2004) (“The dissent also advances several
variations on the theme that death is different (or rather, ‘dramatically different’) . . . .”);
Wiggins v. Smith, 539 U.S. 510, 557 (2003) (Scalia, J., dissenting) (“Today’s decision is
extraordinary—even for our ‘death-is-different’ jurisprudence.”) (quoting Simmons v. South
Carolina, 512 U.S. 154, 185 (1994) (Scalia, J., dissenting)); Shafer v. South Carolina, 532
U.S. 36, 55 (2001) (Scalia, J., dissenting) (“Today’s decision is the second page of the
‘whole new chapter’ of our improvised ‘“death-is-different’ jurisprudence” that Simmons
began.”) (quoting Simmons, 512 U.S. at 185) (Scalia, J., dissenting)); Simmons, 512 U.S. at
185 (1994) (Scalia, J., dissenting) (“I fear we have read today the first page of a whole new
chapter in the ‘death-is-different’ jurisprudence which this Court is in the apparently
continuous process of composing.”); Dobbs v. Zant, 506 U.S. 357, 363 (1993) (Scalia, J.,
concurring in judgment) (“There was, in short, no reason to grant this petition and correct
this (admittedly clear) technical error, except to place another obstacle in the way of a death
penalty that has been suspended within this Court’s ‘death is different’ time warp since
1974.”); Morgan v. Illinois, 504 U.S. 719, 751-52 (1992) (Scalia, J., dissenting) (“Today,
obscured within the fog of confusion that is our annually improvised Eighth Amendment,
‘death is different’ jurisprudence, the Court strikes a further blow against the People in its
campaign against the death penalty. Not only must mercy be allowed, but now only the
merciful may be permitted to sit in judgment. Those who agree with the author of Exodus,
or with Immanuel Kant, must be banished from American juries—not because the People
have so decreed, but because such jurors do not share the strong penological preferences of
this Court. In my view, that not only is not required by the Constitution of the United
States; it grossly offends it.”) (footnote omitted).
54. It may be fair to draw an analogy between this possible license to engage in
summary execution and Justice Stevens’ concern with judicial overrides of jury verdicts, as
expressed in his dissent in Harris v. Alabama:
Overrides . . . sacrifice the legitimacy of jury verdicts, at potentially great cost.
Whereas the public presumes that a death sentence imposed by a jury reflects the
community’s judgment that death is the appropriate response to the defendant’s
crime, the same presumption does not attach to a lone government official’s
decree. Indeed, government-sanctioned executions unsupported by judgments of
a fair cross section of the citizenry may undermine respect for the value of human

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fits-all use of force standard will discourage judges from exercising
discretion to give “deadly force” instructions to a jury, will make such
instructions unnecessary where now required, and will no doubt impact
jury determinations in excessive force cases.
III. DEADLY FORCE IS DIFFERENT
The facts of Garner are familiar to all who are involved in law
enforcement. A police officer shot a “young, slight, and unarmed” male
who was fleeing, on foot, the scene of a home burglary.55 The youth was
shot in the back of the head while scaling a fence to escape.56 The sole
purpose of using deadly force was to prevent the escape of the fleeing
felon.57 The state statute, to the extent it authorized the use of deadly force
under such circumstances, was declared unconstitutional.58
Garner made clear “that apprehension by the use of deadly force

is a seizure subject to the reasonableness requirement of the Fourth
Amendment.”59 As such, “‘the nature and quality of the intrusion on the
individual’s Fourth Amendment interests [must be balanced] against the
importance of the governmental interests alleged to justify the
intrusion.’”60 To this extent, Justice Scalia is right in Scott when he
portrays Garner as an application of the Fourth Amendment
“reasonableness” test set out in Graham.61 The Court in Garner, however,
unlike the Court in Scott, recognized that “[t]he intrusiveness of a seizure
by means of deadly force is unmatched.”62 Killing someone, or attempting
to kill someone, is qualitatively different from using handcuffs, pepper
life itself and unwittingly increase tolerance of killing.
513 U.S. 504, 522-23 (1995) (Stevens, J., dissenting).
55. Garner, 471 U.S. at 4, 21.
56. Id. at 4.
57. Id. at 3.
58. Id. at 11. The statute provided that “‘[i]f, after notice of the intention to arrest the
defendant, he either flee or forcibly resist, the officer may use all the necessary means to
effect the arrest.’” Id. at 4 (citing TENN. CODE ANN. § 40-7-108 (1982)). “The Department
policy was slightly more restrictive than the statute, but still allowed the use of deadly force
in cases of burglary.” Garner, 471 U.S. at 5.
59. Id. at 7.
60. Id. at 8 (quoting United States v. Place, 462 U.S. 696, 703 (1983)). In Graham, the
Court stated that the “proper application [of the balancing test] requires careful attention to
the facts and circumstances of each particular case, including the severity of the crime at
issue, whether the suspect poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting arrest or attempting to evade arrest by flight.” 490 U.S.
at 396.
61. See Scott, 127 S. Ct. at 1777.
62. Garner, 471 U.S. at 9.

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spray, a baton, or other less-than-lethal weapons to effectuate a seizure.
The Court in Garner, in effect, engaged in the balancing test itself and
established a constitutional baseline for the use of deadly force, prohibiting
its use unless an “officer has probable cause to believe that the suspect
poses a threat of serious physical harm, either to the officer or to
others . . . .”63 In this sense, Garner did establish a “magical on/off switch”
for uses of deadly force.64 A certain threshold requirement exists in every
case involving the use of deadly force, a requirement that has nothing to do
with “slosh[ing] . . . through the factbound morass of ‘reasonableness,’”65
and everything to do with acknowledging that, regardless of the facts, the
“unmatched” intrusion represented by the use of deadly force should
trigger special consideration.66
For law enforcement agencies throughout the country, Garner has set
the standard, not just for scenarios matching the particular facts of Garner
itself, but for all uses of deadly force.67 Some policies essentially mirror
the preconditions set out by Garner.68 Others, like the policy adopted by
the Department of Justice, have preconditions that are arguably more
restrictive than those established by Garner.69 The Legal & Liability Risk
63. Id. at 11. The Court gave as examples a suspect who threatened an officer with a
weapon or a suspect as to whom “there is probable cause to believe that he has committed a
crime involving the infliction or threatened infliction of serious physical harm . . . .” Id. As
to the latter, “deadly force may be used if necessary to prevent escape, and if, where
feasible, some warning has been given.” Id. at 11-12.
64. Contra Scott, 127 S. Ct. at 1777 (“Garner did not establish a magical on/off switch
that triggers rigid preconditions whenever an officer’s actions constitute ‘deadly force.’”)
65. Id. at 1778.
66. Garner, 471 U.S. at 9.
67. On the facts in Garner, the Court noted that most law enforcement agencies would
not have authorized the use of deadly force. Id. at 18-19. In reaching its decision, the Court
took into consideration “[t]he fact that . . . a majority of police departments in this country
ha[d] forbidden the use of deadly force against nonviolent suspects,” observing that “[i]f
those charged with the enforcement of the criminal law have abjured the use of deadly force
in arresting nondangerous felons, there is a substantial basis for doubting that the use of
such force is an essential attribute of the arrest power in all felony cases.” 471 U.S. at 1011.
68. See, e.g., Altamonte Springs Police Department, P/P 83-03, Subject: Firearms and
Response to Resistance REVISION: #25 (Dec. 2, 2004) at *3-4 (“Members authorized to
carry a firearm may discharge it under the following circumstances: . . . 4. To defend
themselves and/or other persons against unlawful force when there is probable cause to
believe that such action is necessary to prevent imminent death or great bodily harm. 5.
When necessary to effect an arrest or to prevent the escape of a felon whom the officer has
probable cause to believe has committed a forcible felony. Further, the officer shall have a
reasonable belief based upon the known circumstances that, by remaining at liberty, the
felon would pose a substantial threat to the safety of the citizens of the community.”).
69. The Department’s policy statement provides that “[l]aw enforcement officers and

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Management Institute has recently formulated a use-of-force or “responseto-resistance” policy that is being adopted by nearly a thousand law
enforcement departments nationwide.70 The policy’s guidelines with
respect to the use of deadly force are based on Garner.71 The International
Association of Chiefs of Police (IACP) relies on Garner for its model
policy on use of deadly force.72
correctional officers of the Department of Justice may use deadly force only when
necessary, that is, when the officer has a reasonable belief that the subject of such force
poses an imminent danger of death or serious physical injury to the officer or to another
person.” U.S. DEP’T OF JUSTICE, POLICY STATEMENT, USE OF DEADLY FORCE, § I (1995),
available at http://www.usdoj.gov/ag/readingroom/resolution14b.htm. With respect to
fleeing felons, the policy states that “[d]eadly force may be used to prevent the escape of a
fleeing subject if there is probable cause to believe: (1) the subject has committed a felony
involving the infliction or threatened infliction of serious physical injury or death, and (2)
the escape of the subject would pose an imminent danger of death or serious physical injury
to the officer or to another person.” Id. at § I.A. The Commentary to the policy notes that
“the Department deliberately did not formulate this policy to authorize force up to
constitutional or other legal limits.” U.S. DEP’T OF JUSTICE, COMMENTARY REGARDING THE
USE OF DEADLY FORCE IN NON-CUSTODIAL SITUATIONS, § I (1995), available at
http://www.usdoj.gov/ag/readingroom/resolution14c.htm.
70. E-mail from Jack Ryan, Legal & Liability Risk Management Institute, to Karen
Blum, Professor of Law, Suffolk University Law School (Aug. 6, 2007, 08:59:27 ST) (on
file with author). The Legal & Liability Risk Management Institute (LLRMI) is a division
of the Public Agency Training Council (PATC) and was created “to assist Risk management
and law enforcement in providing a proactive approach to reduce exposure to liability and
provide the best legal expertise when faced with litigation.” About the LLRMI—Mission
Statement, http://www.llrmi.com/About/mission.cfm (last visited Aug. 30, 2007). “PATC is
the largest privately held law enforcement training company in the nation . . . .” About
PATC—History http://www.patc.com/about/history.shtml (last visited Aug. 30, 2007).
71. The policy provides that
[t]he use of deadly force is objectively reasonable when:
a. The officer is faced with an imminent threat of serious bodily harm or
death to him/herself, or some other person who is present, or;
b. To prevent the escape of an individual in cases where the officer has
probable cause to believe that the subject has committed a violent felony
involving the infliction or threatened infliction of serious bodily harm or
death AND by the subject’s escape they pose an imminent threat of serious
bodily harm or death to another.
c. Officers should warn the subject prior to using deadly force where feasible.
LEGAL & LIABILITY RISK MANAGEMENT INSTITUTE, MODEL POLICY: RESPONSE TO
RESISTANCE 3 (2006).
72. IACP NAT’L LAW ENFORCEMENT POL’Y CENTER, USE OF FORCE 1 (2006), available
at http://www.iacp.org/pubinfo/PolCtr.htm [hereinafter Concepts and Issues Paper (2006)].
The Concepts and Issues Paper provides:
A. Use of Deadly Force
1. Law enforcement officers are authorized to use deadly force when one or
both of the following apply:
a. To protect the officer or others from what is reasonably believed to be
a threat of death or serious bodily harm.

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According to the majority in Scott:
Garner held that it was unreasonable to kill a ‘young, slight, and
unarmed’ burglary suspect by shooting him ‘in the back of the head’
while he was running away on foot and when the officer ‘could not
reasonably have believed that [the suspect] . . . posed any threat,’ and
‘never attempted to justify his actions on any basis other than the need to
prevent an escape.’ Whatever Garner said about the factors that might
have justified shooting the suspect in that case, such ‘preconditions’
have scant applicability to this case, which has vastly different facts.73

This is simply wrong, or, at best, misguided, and reflects an exercise in
reconstruction of a case that has clearly stood for more than its particular
facts for over twenty years. This reconstruction of Garner so as to
diminish its general applicability will prove detrimental to law enforcement
agencies and to the communities they serve, including many innocent
bystanders who have no culpability at all. Treating all uses of force, deadly
or not, under the general “objective reasonableness” umbrella, with no base
line requirements or special consideration for the use of deadly force will
lead to bad policies and bad policing. As the IACP has recognized,
“[o]fficers must be provided with a clear and concise departmental policy
that establishes guidelines and limitations on the use of force generally and
the use of deadly force in particular.”74 Scott may serve as an incentive for
agencies to re-write their policies in more general terms, avoiding specific
b. To prevent the escape of a fleeing violent felon who the officer has
probable cause to believe will pose a significant threat of death or
serious physical injury to the officer or others. Where practicable prior
to discharge of the firearm, officers shall identify themselves as law
enforcement officers and state their intent to shoot.
Id.
In the Concepts and Issues Paper accompanying the 2005 revisions, the IACP explains
that “[a] prior revision of [the] policy eliminated use of the term ‘imminent’ in reference to
the threat that a suspect may pose to the officer or others in order to justify the use of deadly
force.” IACP NAT’L LAW ENFORCEMENT POL’Y CENTER, USE OF FORCE 4 (2005) [hereinafter
Concepts and Issues Paper (2005)]. The term was eliminated because of the added burden
it placed on officers in deciding what the term means in particular situations and because of
its potential for “impos[ing] a burden of proof upon officers in court settings that is
unnecessary.” Id.
On the requirement of “imminence,” see Rosales v. City of Bakersfield, No. CV-F-05237, 2007 WL 1847628, at *28 (E.D. Cal. June 27, 2007), where a plaintiff challenged a use
of force policy as unconstitutional on its face because it lacked an “immediacy
requirement.” While the court noted that “it may have been better had the Firearms Policy
at issue used the term ‘immediate,’ it is questionable that a policy can be found to be
unconstitutional merely because it does not use that specific term.” Id.
73. 127 S. Ct. at 1777 (alteration in original) (citations omitted).
74. Concepts and Issues Paper (2005), supra note 72, at 1 (emphasis added).

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preconditions for the use of deadly force. After Scott, such preconditions
would not be constitutionally mandated and, if ignored by an officer, might
serve as the basis for state law liability based on negligence.75 Without
such standards and the training that accompanies them, officers will no
doubt be more confused about when the use of deadly force is appropriate.
Agencies should think twice about re-writing policies to “take advantage”
of Scott. A reduction in exposure to state law liability may be countered by
an increase in the number of lawsuits agencies must defend due to lack of
clear standards, guidelines, and training. Confusion as to policy and
standards cannot be good for police or the citizens whom they encounter.
Unfortunately, Scott does little to help and much to confuse the landscape
on the use of deadly force.
IV. SCOTT’S FAILURE TO “CLEARLY ESTABLISH” THE LAW
In County of Sacramento v. Lewis, a majority of the Court reinforced
the view that, “the better approach to resolving cases in which the defense
of qualified immunity is raised is to determine first whether the plaintiff
has alleged a deprivation of a constitutional right at all.”76 Justice Souter,
writing for the majority, explained that, “if the policy of avoidance were
always followed in favor of ruling on qualified immunity whenever there
was no clearly settled constitutional rule of primary conduct, standards of
official conduct would tend to remain uncertain, to the detriment both of
officials and individuals.”77 Prior to the Court’s insistence on resolution of

75. A violation of agency policy is not necessarily a violation of the federal
Constitution. See, e.g., Abney v. Coe, 493 F.3d 412, 419 2007 (4th Cir. 2007) (“It is . . .
settled law that a violation of departmental policy does not equate with constitutional
unreasonableness.”) (citing Davis v. Scherer, 468 U.S. 183, 193-96 (1984)); Steen v. Myers,
486 F.3d 1017, 1023 (7th Cir. 2007) (“[A] failure to comply with departmental policy does
not implicate the Constitutional protections of the Fourteenth Amendment.”) (citing County
of Sacramento v. Lewis, 523 U.S. 833, 838-39 (1998)); Andujar v. Rodriguez, 480 F.3d
1248, 1252 n.4 (11th Cir. 2007) (“Whether a government official acted in accordance with
agency protocol is not relevant to the Fourteenth Amendment inquiry.”) (citing Taylor v.
Adams, 221 F.3d 1254, 1259 (11th Cir. 2000)); Thompson v. City of Chicago, 472 F.3d
444, 455 (7th Cir. 2006) (“Whether Officer Hespe’s conduct conformed with the internal
CPD General Orders concerning the use of force on an assailant was irrelevant to the jury’s
determination of whether his actions on December 5, 2000 were ‘objectively reasonable’
under the Fourth Amendment.”); Tanberg v. Sholtis, 401 F.3d 1151, 1164 (10th Cir. 2005)
(“[W]e decline Plaintiffs’ invitation here to use the Albuquerque Police Department’s
operating procedures as evidence of the constitutional standard.”).
76. 523 U.S. at 841 n.5.
77. Id. Justice Stevens would limit this analytical approach to cases where the
constitutional issue is clear. Id at 859 (Stevens, J., concurring). Where the question is
“difficult and unresolved,” he would prefer its resolution in a context where municipal

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the constitutional question first, a common approach of the lower courts
was to leave the constitutional “merits” question unresolved and dispose of
cases simply on the ground that, whether or not such a right exists under
current law, the right was not clearly established at the time of the alleged
conduct.78 The practice of many lower courts of granting immunity
without deciding whether a right existed left the state of the law uncertain
and permitted immunity in subsequent cases. But, as the Court in Scott
acknowledged, to reach its conclusion that Scott had not violated Harris’
Fourth Amendment rights, required “slosh[ing] . . . through the factbound
morass of ‘reasonableness.’”79 In the end, the Court’s constitutional
holding produced the “rule” that, “[a] police officer’s attempt to terminate a
dangerous high-speed car chase that threatens the lives of innocent
bystanders does not violate the Fourth Amendment, even when it places the
fleeing motorist at risk of serious injury or death.”80
In arriving at this rule, the Court “weigh[ed] the perhaps lesser
probability of [Harris] injuring or killing numerous bystanders against the
perhaps larger probability of [Scott] injuring or killing a single person,”
Harris, and advised that in the weighing process, it was appropriate “to take
into account not only the number of lives at risk, but also their relative
liability is raised and the case cannot be disposed of on qualified immunity grounds. Id.
Justice Breyer wrote separately in Lewis to express his agreement with Justice Stevens’
view that lower courts should not be denied “the flexibility, in appropriate cases, to decide
42 U.S.C. § 1983 claims on the basis of qualified immunity, and thereby avoid wrestling
with constitutional issues that are either difficult or poorly presented.” Id. at 858-59
(Breyer, J., concurring). For other criticisms of the mandatory “constitutional-questionfirst” approach, see sources cited supra note 16.
78. See, e.g., Joyce v. Town of Tewksbury, 112 F.3d 19, 23 (1st Cir. 1997) (en banc)
(“There is some cost in not deciding the Fourth Amendment issue on the merits, even in the
form of dictum. But the en banc court is agreed that qualified immunity applies, and there
is less consensus about the underlying constitutional issue.”); Giuffre v. Bissell, 31 F.3d
1241, 1255 (3d Cir. 1994) (“Where appropriate, we may consider whether the constitutional
rights asserted by Giuffre were ‘clearly established’ at the time the individual officials acted,
without initially deciding whether a constitutional violation was alleged at all.”); Severino v.
Negron, 996 F.2d 1439, 1441 (2d Cir. 1993) (“If we were to rule today on the due process
question, we likely would hold that a violation has occurred. . . . We do not need to rule
definitively on the constitutional question, however, because even if there were a violation
of due process, the appellee officials would be protected by qualified immunity.”); Long v.
Norris, 929 F.2d 1111, 1115 (6th Cir. 1991) (“We need not define in this case precisely
what level of individualized suspicion is required in the context of prison visitor searches.
The question before the court is not whether the proper standard should be reasonable
suspicion or . . . probable cause, but whether . . . [the] right to be free from [a] strip . . .
search absent probable clause [sic] was clearly established at the time of [the
conduct] . . . .”).
79. 127 S. Ct. at 1778.
80. Id. at 1779.

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culpability.”81 This added wrinkle of a consideration of culpability in the
“objective reasonableness” analysis arguably serves to make the rule more
“per se” and less fact-bound. Frankly, I am not sure how a court measures
the “level of culpability.”82 If the measure of culpability is an objective
one, in the high-speed pursuit context, one will always be able to say that
the subject of the pursuit is more culpable in the sense that he or she should
have stopped and submitted to the show of police authority.83 What kind
of a “rule” is this? Both Justice Ginsburg and Justice Breyer commented
on the factual limitations of the holding.84 To the extent the holding is
“situation specific,” it will do little to clarify the law or inform officers as
to whether conduct in a different factual scenario might be constitutional.85
To the extent it may be interpreted as providing a “per se rule,” it invites
irresponsible, if not reckless, behavior on behalf of law enforcement
officers; behavior that most officers would consider unreasonable and that
most law enforcement agencies would not condone.86
81. Id. at 1778.
82. How does one measure the culpability of innocent passengers who may be urging

the driver to stop? See discussion infra Part IV.
83. Judge Presnell makes this point in Beshers, where he notes:
Realistically, a suspect fleeing the police in a car will inevitably violate some traffic laws.
By doing so, he will endanger the lives of innocent motorists (as well as the pursuing
officers). And that danger will always outweigh the threat posed to the suspect by the
officer’s use of deadly force, because the suspect is the one who chose to put everyone else
at risk by refusing to stop.
495 F.3d at 1272 (Presnell, J., concurring) (footnote omitted).
84. See Scott, 127 S. Ct. at 1779 (Ginsburg, J., concurring) (rejecting a reading of the
decision “as articulating a mechanical, per se rule,” and noting the inquiry made by the
Court is “situation specific”); id. at 1780 (Breyer, J., concurring) (noting the “highly factdependent nature of this constitutional determination”). If the holding is so factually
limited, one wonders why the Supreme Court would spend its limited resources on such a
case. In the October Term 2006, “[t]he Justices decided 68 cases after argument . . . , the
lowest number in recent history.” Akin Gump Strauss Hauer & Feld LLP, Statistics for the
Supreme Court’s October Term 2006, 76 U.S.L.W. 3052 (Aug. 7, 2007).
85. As the Court of Appeals for the First Circuit has observed, “the law elaboration
purpose” is not “well served . . . where the Fourth Amendment inquiry is a reasonableness
question which is highly idiosyncratic and heavily dependent on the facts.” Buchanan, 469
F.3d at 168.
86. See Brief for the National Police Accountability Project as Amicus Curiae
Supporting Respondent, at 5, Scott v. Harris, 127 S. Ct. 1769 (2007) (No. 05-1631), arguing
that the Court would not be unduly interfering with sound law enforcement
policies throughout the country, but rather would be rendering an opinion
consistent with those policies by affirming the Eleventh Circuit’s determination
that Officer Scott’s conduct, assuming the jury found in favor of respondent on the
facts alleged and supported by the summary judgment record, constituted an
unreasonable seizure of respondent and was conduct a reasonable officer would
have understood to be unlawful given the totality of the circumstances confronting

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In the short time that has passed between the rendering of the
Supreme Court’s decision in Scott and the writing of this article, lower
courts have begun the task of trying to figure out whether, and if so, how,
Scott might control or affect the outcome in cases with somewhat different
facts. Viewing the limited landscape that exists thus far, I predict that Scott
will leave little room for a real balancing test and will be taken to establish
a per se rule that Justices Ginsburg and Breyer will come to regret.
In Abney v. Coe, the first federal appellate court decision in the wake
of Scott, Abney, a fleeing motorcyclist, was run off the road and killed after
a collision with Deputy Sheriff Coe’s vehicle during a high-speed pursuit.87
The chase began when Deputy Coe witnessed Abney illegally pass another
vehicle while turning around a sharp curve.88 Abney, rather than pulling
over after Deputy Coe put on his siren and flashing lights, proceeded to
cross over double yellow lines and swerve around other vehicles to avoid
capture, at one point even running another vehicle off of the road.89
Deputy Coe finally caught up to Abney, but the parties disputed whether or
not he intentionally rammed Abney’s motorcycle to prevent escape.90
Deputy Coe claimed that Abney’s motorcycle spun out of control leading
to the unavoidable collision with his cruiser, while Abney’s estate argued
that Coe applied a PIT maneuver in order to end the pursuit.91
The trial court denied Deputy Coe’s motion for summary judgment on
the grounds that there was sufficient evidence from which a jury could find
that Coe deliberately collided with Abney, and that such use of deadly
force would have been objectively unreasonable under Garner.92 The
Fourth Circuit reversed, relying heavily on the analysis of Scott.93 The
Court of Appeals found that the record supported the conclusion that
Abney’s driving “put other motorists at substantial risk of serious harm,”
and thus, Deputy Coe was “eminently reasonable to terminate the chase in
order to avoid further risks to the lives of innocent motorists.”94
The court’s blanket application of Scott is troubling. Ignoring obvious
differences between the facts of Scott and those in the case before it, the

him at the time.
493 F.3d at 413.
Id. at 414.
Id.
Id.
Id. at 414, 415.
Abney, 493 F.3d at 415.
Id. at 420.
Id. at 417.

87.
88.
89.
90.
91.
92.
93.
94.

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Fourth Circuit treats Scott as though it does establish a per se rule, making
an officer’s termination of a pursuit by means of deadly force reasonable
whenever the subject of the pursuit engages the officer in a high-speed
pursuit that is arguably dangerous. It was daytime, Abney was driving a
motorcycle, not a car, there was heavy traffic on the highway portion of the
pursuit, neither Abney nor Coe exceeded the posted 55 mile-per-hour speed
limit, the Department policy prohibited the use of PIT maneuvers to
terminate pursuits, and Deputy Coe was of the opinion that had he
intentionally rammed Abney’s motorcycle, that would have been an
excessive use of force.95 While the court is right that violations of
departmental policies do not establish “constitutional unreasonableness,”
and that Deputy Coe’s subjective beliefs about the reasonableness of his
conduct are not dispositive,96 it is not so clear that these factors, combined
with the other facts which distinguish Abney from Scott, should be treated
as “irrelevant to the constitutional inquiry.”97 To discount the importance
of these differences is to render the holding in Scott “too absolute,”98 and to
ignore the warnings of Justice Ginsburg and Justice Breyer that “whether a
high-speed chase violates the Fourth Amendment may well depend upon
more circumstances than the majority’s rule reflects.”99
The only other court of appeals’ opinion to have been announced at
the time of this writing, Beshers v. Harrison, provides a similar analysis of
Scott, with a result that is likewise predictable and disturbing. In Beshers,
the City of Toccoa, Georgia, Police received a report that an individual had
tried to steal beer from a package store after he had been refused service.100
There was a surveillance tape of the suspect’s truck and Officer Scott
Harrison, after viewing the tape, spotted a truck matching the suspect’s at a
nearby service station.101 Harrison activated his emergency lights and
began following Beshers when he ran a stop sign and pulled out onto a
four-lane highway.102 Beshers did not pull over, and both vehicles

95.
96.
97.
98.
99.

Id. at 414-17.
Id. at 419.
Abney, 493 F.3d at 420.
Scott, 127 S. Ct. at 1781 (Breyer, J., concurring).
Id. (referencing Justice Ginsburg’s concurring opinion in Scott, 127 S. Ct. at 1779-

80).
100. Beshers, 495 F.3d at 1262. The individual was later identified as Beshers. Id. He
had made several purchases of alcohol from the same location that day. Id.
101. Id.
102. Id. A short time thereafter, the driver of the truck, who turned out to be Beshers,
pulled into a shopping center and let out a passenger carrying a white plastic bag about the
size of a six pack of beer. Beshers, 495 F.3d at 1269. (Presnell, J., concurring).

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proceeded at fifty-five miles per hour in a forty-five mile per hour zone.103
Two other officers, approaching from the opposite direction, and informed
of the chase by radio, attempted to stop Beshers by setting up a roadblock
with their vehicle.104 Beshers swerved to avoid the roadblock, crossed into
the oncoming lane, and then returned to his lane and kept driving south on
the highway.105 At this point, Beshers was being followed by Harrison and
three other officers in two vehicles.106 At an intersection where Beshers
attempted to go around a car stopped at a red light, the car made a right and
Beshers’ truck and the car collided.107 Beshers proceeded and eventually
turned onto Georgia Highway 145, “a narrow, winding two-lane country
road . . . .”108 Beshers proceeded at speeds of fifty-five to sixty-five miles
per hour.109 Harrison took over the lead in the pursuit and attempted to
stop Beshers by means of passing him and blocking his truck.110 When
Beshers tried to get around Harrison, Harrison intentionally rammed the
truck, causing it to flip over several times.111 Beshers was killed on
impact.112
In analyzing the reasonableness of the seizure, the majority of the
panel acknowledged that pre-Scott, its inquiry would have been guided by
the three preconditions Garner established for the use of deadly force.113
Scott, however, was taken to limit Garner’s applicability, and thus, the only
question was whether Harrison’s conduct was reasonable.114 In performing
103.
104.
105.
106.
107.

Id.
Id. at 1262.
Id.
Id.
Beshers, 495 F.3d at 1262-63. Interestingly, as noted by the concurrence, the
collision at the intersection was witnessed by Deputy Brian Perrin of the Stephens County
Sheriff’s Office. Id. at 1270 (Presnell, J., concurring). Harrison, who knew Perrin, shouted
for Perrin to “Go! Go!” and join the chase. Id. Perrin contacted his agency and was told
that the Sheriff’s Office only authorized pursuits in cases involving “forcible felonies.” Id.
Based on Perrin’s description of the events he witnessed, his supervisor refused to allow
him to join in the chase. Id.
108. Beshers, 495 F.3d at 1263.
109. Id.
110. Id.
111. Id. The court assumed that “Harrison intentionally caused the collision” because a
jury could reasonably have concluded that the impact was intentional. Id. at 1263 n.3.
112. Id. at 1263. The majority viewed the evidence, except where contradicted by the
videos, in the light most favorable to Beshers. Beshers, 495 F.3d 1266. Therefore, although
Harrison claimed he did not intend to ram Beshers’ truck, the court determined that a
reasonable juror could conclude the collision was intentional and Beshers was “seized” for
Fourth Amendment purposes. Id.
113. Id. at 1267.
114. Id.

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a rather perfunctory “balancing” test pursuant to Scott, the court concluded
that Harrison “had reason to believe Beshers was a danger to the pursuing
officers and others and was driving under the influence of alcohol,” and
thus, there was “no doubt that Harrison’s alleged use of deadly force to
stop Beshers did not violate the Fourth Amendment.”115
Given the Supreme Court’s decision in Scott, Judge Presnell from the
Middle District of Florida, sitting by designation, was “compelled to
concur in the panel decision.”116 In doing so, however, Judge Presnell
writes an incredibly powerful opinion that underscores major concerns this
author has about the implications of Scott for future cases. Viewing the
same record and the same videos, Judge Presnell opines that Beshers’
conduct, while “undeniably dangerous,” was not “particularly heinous,”
and was not conduct that a reasonable person would determine “warranted
death.”117 Scott, however, compelled Judge Presnell “to conclude that, as a
matter of law, Harrison had the right to end the chase by killing
Beshers . . . .”118 While acknowledging, as I acknowledge with Scott, that
a reasonable jury could decide, based on a weighing of all the evidence,
that Harrison’s use of deadly force was justified, Judge Presnell finds the
decision in the case troubling.119 He sums up the problem with the astute
and, in my opinion, accurate assessment of Scott’s effect:
For all of its talk of a balancing test, the Harris court has, in effect,
established a per se rule: Unless the chase occurs below the speed limit
on a deserted highway, the use of deadly force to end a motor vehicle
pursuit is always a reasonable seizure.
As a practical matter, a police officer’s qualified immunity to use deadly
force in a car chase situation is now virtually unqualified. Harris and
this opinion allow a police officer to use deadly force with constitutional
impunity if the fleeing suspect poses any danger to the public. In my
humble opinion, I believe we will live to regret this precedent.120

Thus, while eschewing the notion that Garner established some sort of
“magical on/off switch” for deadly force cases, the Court in Scott appears
to have substituted its own version of the “on/off switch” in the toothless
balancing test that in reality affords “no weight” to the likelihood of killing

115.
116.
117.
118.
119.
120.

Id. at 1268.
Beshers, 495 F.3d at 1268 (Presnell, J., concurring).
Id. at 1270.
Id. at 1272.
Id.
Id.

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the suspect.121
In Sharp v. Fisher, two South Carolina officers clocked Katie Sharp
going eighty-six miles per hour in a seventy mile-per-hour zone on
Interstate-95, headed towards Georgia.122 Refusing to pull over, she led the
officers on a pursuit that lasted forty-five minutes, covered over seventyfive miles and reached speeds up to 107 miles per hour.123 Twenty miles
after the pursuit entered Georgia, State Trooper William Fisher, without
knowing why Sharp was being pursued, without communicating with the
South Carolina officers, and after only fifty-seven seconds of observing
Sharp’s driving, exercised his discretion to perform a PIT maneuver on
Sharp’s SUV.124 Sharp’s vehicle was sent across all lanes of traffic, off the
interstate, and into a tree-filled ditch.125 Both Sharp and her passenger
were killed.126 Suit was brought by Sharp’s parents on behalf of Sharp and
her surviving child.127 In ruling on Fisher’s motion for summary judgment
based on qualified immunity, viewing the facts as depicted by three videos,
the court first addressed the issue of whether Fisher’s conduct was

121.
122.
123.
124.
125.
126.

Beshers, 495 F.3d at 1272.
2007 WL 2177123, at *1.
Id.
Id. at *2.
Id.
Id. at *1. The presence of the passenger in Sharp raises an interesting twist in
these pursuit cases. Sharp dealt only with the claims asserted on behalf of the driver and her
surviving child. Id. In Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989), the
Supreme Court held that a Fourth Amendment seizure occurs “only when there is a
governmental termination of freedom of movement through means intentionally applied.”
An unintended or accidental termination of movement does not invoke Fourth Amendment
protection, but rather is subjected to the more stringent “shocks the conscience” standard
applied to Fourteenth Amendment substantive due process claims. See Lewis, 523 U.S. at
843-44, 847 (no seizure took place when a high-speed police chase ended with a police
cruiser unintentionally hitting and killing the passenger who fell off the motorcycle). To
address this question, most courts have held that when an officer intentionally shoots at or
rams a fleeing vehicle, the passenger, as well as the driver, is “seized” within the meaning of
the Fourth Amendment. See, e.g., Vaughan v. Cox, 343 F.3d 1323, 1328 (11th Cir. 2003)
(bullet meant to stop car and its passengers seized passenger when it hit him); Fisher v. City
of Memphis, 234 F.3d 312, 318-19 (6th Cir. 2000) (by shooting at the driver of moving car,
the officer intended to stop the car, effectively seizing everyone inside, including a
passenger); Tubar v. Clift, 453 F. Supp. 2d 1252, 1255-56 (W.D. Wash. 2006) (a passenger
was seized when hit by gunfire intentionally aimed at car). But see Schultz v. Braga, 455
F.3d 470, 482 (4th Cir. 2006) (distinguishing Vaughan and Fisher and holding that a driver
was not seized when a bullet that caused injury to the passenger was not intended to
terminate the driver’s freedom of movement and did not terminate her freedom of
movement); Willis v. Oakes, 493 F. Supp. 2d 776, 784 (W.D. Va. 2007) (a passenger was
not seized when wounded by shots intended for the driver of vehicle).
127. Sharp, 2007 WL 2177123, at *1.

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objectively reasonable under the Fourth Amendment.128 Both Scott and
Abney were distinguished on the basis that “a jury here could conclude that
Fisher’s actions endangered not only the culpable driver, but also the
(culpability unknown) passenger and the innocent drivers and passengers
of the vehicles Fisher passed seconds before pushing [Sharp]’s SUV.”129
Because “Fisher did not see or hear of any public-endangering, evasive
action or out-of-control driving by Sharp,” the court found that “[Fisher’s]
actions suggest[ed] he felt he had carte blanche to ‘take out’ Sharp by
whatever means necessary solely because she would not pull over.”130
This conduct, the court concluded, was objectively unreasonable and
violated the Fourth Amendment.131
On the second prong of the qualified immunity analysis, however,
plaintiffs cited no case that gave fair warning “that stopping a recalcitrant
but controlled driver by initiating a PIT maneuver was a clearly established
violation of the Fourth Amendment” at the time of the challenged
conduct.132 In 2003, the Eleventh Circuit had denied qualified immunity to
a Deputy who had fired “into the cabin of a pickup truck, traveling at
approximately eighty miles per hour on Interstate-85 in the morning.”133
Looking at the facts in a light most favorable to the plaintiff and relying on
Garner, the Court of Appeals held in Vaughan v. Cox that a jury could find
the deputy’s conduct unlawful and that Garner provided fair warning that
such conduct violated the Fourth Amendment.134 In the opinion of the
district court in Sharp, Vaughan is no longer good law after Scott, which
makes the question of objective reasonableness a “pure question of law,”
and which rejects Garner as the source of any “bright-line deadly force
test.” 135 While not good law now, the court pointed out that Vaughan was
clearly established law at the time of the incident in Sharp.136 But even
had the plaintiffs in Sharp raised Vaughan, the district court made clear that
a Vaughan-based argument would have failed.137 Relying on the
distinction drawn in Scott between the “near certainty of death” posed by
shooting at a fleeing motorist’s car as opposed to the “high likelihood of
128.
129.
130.
131.
132.
133.
134.
135.
136.
137.

Id. at *1, *4.
Id. at *5.
Id. at *6.
Id. at *7.
Sharp, 2007 WL 2177123, at *7.
Vaughan, 343 F.3d at 1333.
Id. at 1331-33.
Sharp, 2007 WL 2177123, at *7 n.2 (citing Scott, 127 S. Ct. at 1776 n.8, 1778).
Id.
Id. at *7.

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serious injury or death” presented by ramming the suspect’s vehicle,138 the
district court concluded that Vaughan would not have provided fair
warning to Fisher that use of the PIT maneuver was unlawful under the
circumstances.139 Given the summary judgment facts the district court
assumed for purposes of ruling on the qualified immunity question, my
own opinion is that no case law was needed to put a well-trained officer on
notice that the conduct in which Fisher engaged was unreasonable, and, if
case law was needed, Vaughan gave fair warning that using deadly force—
whether shooting or ramming at high speed—under such circumstances
violated Sharp’s Fourth Amendment right to be free from an unreasonable
seizure.
In another post-Scott decision, Willis v. Oakes, Deputy McNally
arrived after midnight at a convenience store parking lot to arrest a known
drug dealer on an outstanding warrant.140 The drug dealer, whom McNally
arrested, was standing next to Kirby Willis’ vehicle, in a “secluded” part of
the parking lot, speaking to him through the window.141 McNally, awaiting
the arrival of Deputy Yost who was going to take the arrestee into custody,
questioned Kirby Willis and his passenger, Bruce Willis, eventually asking
Kirby to step out of his vehicle and submit to a breath-alcohol test.142
When Kirby repeatedly inhaled rather than exhaled into the tube, McNally
threatened to take him in for driving under the influence.143 Upon learning
that his car would be towed if his passenger was found to be intoxicated,
Willis fled to his vehicle, with Deputies Yost and McNally in pursuit.144
During the ensuing struggle in the front seat of the car, the vehicle went
into gear, and Deputy McNally fired three shots at Kirby at close range.145
Two of the shots passed through Kirby, killing him and wounding both

138. Scott, 127 S. Ct. 1769, at 1778. Some in law enforcement might question the
assumption underlying this comparison. As the International Association of Chiefs of
Police has noted:
The popular cinematic and television characterization of the police does not
reflect the abilities of most officers under actual combat shooting conditions.
Research in major metropolitan police departments, in fact, reveals miss rates of
between 42 and 82 percent of rounds fired during actual deadly force
confrontations.
Concepts and Issues Paper (2005), supra note 72, at 4-5.
139. Sharp, 2007 WL 2177123, at *7.
140. 493 F. Supp. 2d at 779.
141. Id.
142. Id. at 779-80.
143. Id. at 780.
144. Willis, 493 F. Supp. 2d at 780.
145. Id.

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Deputy Yost and Bruce Willis.146 After the shooting, the vehicle “lurched
forward through the parking lot, hitting two cars, and went over an
embankment.”147 According to Bruce Willis, there was no movement of
the vehicle before Kirby was shot.148
In deciding McNally’s claim to qualified immunity, the court relied
upon Scott to assess the “relative culpability” of the parties involved, found
that “Kirby intentionally placed himself, Bruce, and innocent bystanders in
danger by recklessly attempting to drive off,” and thus, concluded that
McNally’s actions were objectively reasonable.149 The decision in Willis is
clearly inconsistent with the decision rendered on the merits of the Fourth
Amendment question by the Ninth Circuit in Brosseau.150 Although the
Supreme Court decision in Brosseau left the constitutional “holding” of the
Ninth Circuit untouched, it is likely that Scott will lead more courts to
weigh “relative culpability” and come to conclusions like that reached by
the court in Willis on facts that resemble those in Willis or Brosseau.
V. SCOTT’S IMPLICATIONS FOR GARNER “DEADLY FORCE” INSTRUCTIONS
One of the more perplexing issues raised by Scott is what effect it will
have on jury trials in Section 1983 deadly force cases in particular, and
excessive force cases in general. When qualified immunity is raised in
either a motion to dismiss or at the summary judgment stage, the Supreme
Court has stressed the legal nature of the issue and has instructed that
“[i]mmunity ordinarily should be decided by the court long before trial.”151

146. Id. at 780. Because Yost and Bruce were not the intended objects of the shooting,
neither was “seized” for Fourth Amendment purposes and Bruce’s claim failed under the
“shocks the conscience” standard. Id. at 784. The court concluded that “Bruce has pointed
to no facts that would suggest that Deputy McNally’s conduct was such an abuse of official
power that it shocks the conscience.” Id. at 784.
147. Willis, 493 F. Supp. 2d at 780.
148. Id. at 781.
149. Id. at 783. It is not clear what “innocent bystanders” were present in the parking
lot at 12:30 a.m. or shortly thereafter. In any event, it was irrelevant to the court whether
Kirby “had actually driven the Tahoe forward before the shots were fired.” Id. at 783.
Furthermore, relying on the Fourth Circuit’s “at the moment” approach in determining the
reasonableness of the use of force, see Greenidge v. Ruffin, 927 F.2d 789, 791-92 (4th Cir.
1991), the district court refused to consider any of McNally’s conduct prior to the moment
of the shooting itself. Willis, 493 F. Supp. 2d at 783. Evidently, “relative culpability” does
not take into account “relative stupidity.” One wonders if McNally’s conduct would have
been found objectively reasonable if Deputy Yost had been killed.
150. See discussion, supra Part I.
151. Hunter v. Bryant, 502 U.S. 224, 228 (1991) (per curiam). The Court has
explained that qualified immunity is “an entitlement not to stand trial or face the other
burdens of litigation, conditioned on the resolution of the essentially legal question whether

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The Court has yet to speak to the question of how the issue is to be
resolved if summary judgment is precluded by the existence of material
issues of fact, but most circuits have held that the issue of qualified
immunity remains a legal one to be resolved by the court, while questions
of fact should be given to the jury by way of special interrogatories.152 In
Scott, once the Court decided that the videotape eliminated any genuine
issue of material fact as to the threat presented by Harris’ driving, the
question of the objective reasonableness of Scott’s use of force was a “pure
question of law.”153 The Court was addressing the first prong of the
qualified immunity analysis under Saucier, the constitutional “merits”
question of whether Scott’s conduct was objectively reasonable under the
Fourth Amendment.154 In Curley v. Klem, the Court of Appeals for the
Third Circuit noted “[c]onfusion between the threshold constitutional
inquiry and the immunity inquiry,” suggesting that “the most helpful
approach is to consider the constitutional question as being whether the
officer made a reasonable mistake of fact, while the qualified immunity
the conduct of which the plaintiff complains violated clearly established law.” Mitchell v.
Forsyth, 472 U.S. 511, 526 (1985). It is “an immunity from suit rather than a mere defense
to liability . . . .” Id.
152. See, e.g., Curley v. Klem, 499 F.3d 199, 208-11 & n.12 (3d Cir. 2007) (surveying
circuit opinions and concluding that “whether an officer made a reasonable mistake of law
and is thus entitled to qualified immunity is a question of law that is properly answered by
the court, not a jury.”); Cortez v. McCauley, 478 F.3d 1108, 1120-21 (10th Cir. 2007) (en
banc) (“The parties agree on the ‘what happened’ questions. In such a circumstance, for
qualified immunity purposes, there is no such thing as a ‘genuine issue of fact’ as to whether
an officer ‘should have known’ that his conduct violated constitutional rights. The conduct
was either objectively reasonable under existing law or it was not.”) (citation omitted); Int’l
Ground Transp., Inc. v. Mayor and City Council of Ocean City, 475 F.3d 214, 219, 220 n.3
(4th Cir. 2007) (implicitly expressing disapproval of submission of qualified immunity to
jury: “Entitlement to qualified immunity is a legal question to be decided to [sic] the court,
although factual issues underlying the qualified immunity analysis may be submitted to a
jury.”) (citing Willingham v. Crooke, 412 F.3d 553, 558-59 (4th Cir. 2005)); Harvey v.
Plains Twp. Police Dep’t, 421 F.3d 185, 194 n.12 (3d Cir. 2005) (“The parties appear to be
in disagreement over the proper role of the jury in qualified immunity determinations.
Although the courts of appeals are not unanimous on this issue, this Court has held that
‘qualified immunity is an objective question to be decided by the court as a matter of law.’”)
(citing Carswell v. Borough of Homestead, 381 F.3d 235, 242 (3d Cir. 2004)); Smith v. City
of Hemet, 394 F.3d 689, 704 n.7 (9th Cir. 2005) (en banc) (“Whether the officers are
entitled to qualified immunity may depend in large part on factual determinations the jury
will be required to make.”); Littrell v. Franklin, 388 F.3d 578, 585 (8th Cir. 2004) (“Where,
as in this case, factual questions prevent a district court from ruling on the issue of qualified
immunity, it is appropriate to tailor special interrogatories specific to the facts of the case.
This practice allows the jury to make any requisite factual findings that the district court
may then rely upon to make its own qualified immunity ruling.”).
153. Scott, 127 S. Ct. at 1776 n.8.
154. See supra notes 16 and 52.

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question is whether the officer was reasonably mistaken about the state of
the law.”155 Under Scott, if there are no genuine issues of material fact in
dispute, the ultimate question of whether the officer made a reasonable
mistake of fact is a question of law to be decided by the court.156 It is
unclear to me how this question of law can be given to the jury, even under
the first prong of Saucier, once the jury decides the underlying “who-whatwhen-where-why type of historical fact issues.”157 The logical implication
of Scott is that if there are material issues of fact to be sent to the jury, the
jury should decide those issues by way of special interrogatories and the
court should decide the legal question of the objective reasonableness, as a
matter of fact, of the use of force.158 If this is so, one might question the
need to give instruction to a jury even on the Graham elements of an
excessive force claim, let alone the Garner preconditions for deadly
force.159 A jury would simply be required to return answers to
interrogatories that would flesh out the material facts that had to be decided
for the court to make the “objective reasonableness” determination. Based
on the jury’s findings of fact, the court would decide the “pure question of
law.”160 If the court were to decide the challenged conduct was objectively
155.
156.
157.
158.

499 F.3d at 214.
Scott, 127 S. Ct. at 1776 n.8.
Cottrell v. Caldwell, 85 F.3d 1480, 1488 (11th Cir. 1996).
See, e.g., Sharp, 2007 WL 2177123, at *7 n.2 (“Vaughan is no longer good law
after Scott. Under Vaughan, the issue of reasonableness is a jury issue. 343 F.3d at 1330
(“We conclude that a reasonable jury could find, under Vaughan’s version of the facts, that
Deputy Cox’s use of deadly force to apprehend Vaughan and Rayson was
unconstitutional”). That is no longer true.”) (citing Scott, 127 S. Ct. at 1776 n.8); see also
Curley, 2007 WL 2404803, at *10 n.14:
We note that in the Supreme Court’s recent decision in Scott, the Court stated that,
because the case ‘was decided on summary judgment, there [had] not yet been
factual findings by a judge or jury. . . .’ Without wanting to read too much into
that statement, since it may refer to nothing more than a case in which the parties
waive any right to a jury, it appears the Court at least contemplated a circumstance
where a judge may resolve factual issues. Certainly the dissent in Scott was
concerned about judicial fact finding.
(alterations in original) (citations omitted).
159. See Graham, 490 U.S. at 396 (requiring, in performance of the Fourth
Amendment balancing, that “careful attention [be given] to the facts and circumstances of
each particular case, including the severity of the crime at issue, whether the suspect poses
an immediate threat to the safety of the officers or others, and whether he is actively
resisting arrest or attempting to evade arrest by flight.”).
160. Judge Presnell observed in Beshers:
If a balancing test is to have any real meaning, a jury ought to be deciding whether
the risk posed by the fleeing suspect is too minimal, or the suspected crime too
minor, to make killing him a reasonable way to halt the chase. Nevertheless, based
on my reading of Harris, that decision has been taken away from the jury where,

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unreasonable as a matter of fact under the first prong of Saucier, the court
might still grant qualified immunity under the second prong, if the conduct
was objectively reasonable as a matter of law because the “legal constraints
on particular police conduct” were not clearly established at the time of the
incident.161
Even if courts continue to give excessive force instructions which
require the jury to decide, based on its findings of historical fact, the
ultimate constitutional question of objective reasonableness of the
defendant’s conduct, Scott will no doubt have an effect on jury instructions
given in Section 1983 cases involving the use of deadly force. The Court
in Scott rejected the view that Garner established any “magical”
preconditions to the use of deadly force.162 Rather, Garner was simply an
application of the general Fourth Amendment objective reasonableness test
to particular facts.163 Currently, the Third, Seventh, and Ninth Circuits
include separate Garner language in their Model Jury Instructions for
deadly force cases.164 Furthermore, in Monroe v. City of Phoenix,165 the
Ninth Circuit had held that “[a]n excessive force instruction is not a
substitute for a Garner deadly force instruction,” and that “where there was
no dispute that deadly force was used, the district court abuses its discretion

as here, the fleeing suspect has endangered others.
495 F.3d at 1272.
161. 533 U.S. at 205.
162. 127 S. Ct. at 1777.
163. Id.
164. See, e.g., 3d Cir. Civ. Jury Instr. § 4.9.1 (2007), available at http://www.ca3.
uscourts.gov/civiljuryinstructions/toc_and_instructions.htm (follow “Chapter 4” hyperlink)
(last visited Oct. 21, 2007) (In deadly force case, the plaintiff must prove one of the
following: “deadly force was not necessary to prevent [plaintiff’s] escape; or [defendant] did
not have probable cause to believe that [plaintiff] posed a significant threat of serious
physical injury to [defendant] or others; or it would have been feasible for [defendant] to
give [plaintiff] a warning before using deadly force, but [defendant] did not do so.”)
(alterations in original); 7th Cir. Civ. Jury Instr. § 7.09 (2005), available at
http://www.ca7.uscourts.gov/7thcivinstruc2005.pdf (last visited Oct. 21, 2007) (“An officer
may use deadly force when a reasonable officer, under the same circumstances, would
believe that the suspect’s actions placed him or others in the immediate vicinity in imminent
danger of death or serious bodily harm.”); 9th Cir. Civ. Jury Instr. § 9.23 (2007):
In general, a seizure of a person is unreasonable under the Fourth Amendment if a
police officer uses deadly force without having probable cause to believe the
person poses an imminent threat of death or serious bodily injury to the officer or
to others. Thus, in order to prove an unreasonable seizure in this case, the plaintiff
must prove by a preponderance of the evidence that the officer[s] did not have
probable cause to believe the plaintiff posed an imminent threat of death or
serious bodily injury to the officer or to others.
165. 248 F.3d 851, 859-60 (9th Cir. 2001).

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by not giving a Garner deadly force instruction.” As this article was in the
final editing process, however, the Ninth Circuit overruled Monroe. In
Acosta v. Hill,166 the court held:
We had previously held that ‘[a]n excessive force instruction is not a
substitute for a . . . deadly force instruction.’ Monroe v. City of Phoenix,
248 F.3d 851, 859 (9th Cir. 2001). We reached this conclusion based on
the observation that ‘the Supreme Court . . . established a special rule
concerning deadly force.’ Id. at 860. Scott explicitly contradicts that
observation. Scott controls because it is ‘intervening Supreme Court
authority’ that is ‘clearly irreconcilable with our prior circuit authority.’
Monroe’s holding that an excessive force instruction based on the
Fourth Amendment’s reasonableness standard is not a substitute for a
deadly force instruction is therefore overruled.

While the Eighth Circuit has no separate Garner/deadly-force model
jury instruction, the Court of Appeals has held, in Rahn v. Hawkins,167 that
“[j]ury instructions that discuss only excessive force in only a general way
do not adequately inform a jury about when a police officer may use deadly
force,” and, it can be reversible error not to give a deadly-force
instruction.168 As the court explained:
The problem with giving only the more general excessive-force

166. ___ F.3d ___, No. 05-56575, 2007 WL 3013451, at *1 (9th Cir. Oct. 17, 2007)
(citations omitted) (alterations in original).
167. 464 F.3d 813, 818 (8th Cir. 2006). See generally 8th Cir. Civ. Jury Instr. § 4.10
(2005), available at http://www.juryinstructions.ca8.uscourts.gov/civil_instructions.htm
(follow “PDF Version” hyperlink).
168. The court noted the differences between the plaintiff’s proposed instruction and
that given by the court:
Mr. Rahn asked for a deadly-force instruction that read, “While the use of ‘force’
is reasonable under the Fourth Amendment if it would seem justified to a
reasonable police officer in light of the surrounding circumstances, the use of
‘deadly force’ is only justified if the officer has probable cause to believe that a
suspect poses a threat of serious physical harm to the officer or others.” The
district court refused the proposed instruction, citing its general trepidation about
giving instructions that vary from the Eighth Circuit model instructions and its
fear that the jury would be confused if it gave both Mr. Rahn’s deadly-force
instruction and the so-called verdict-director instruction that it did give. The
instruction that it gave was derived from Eighth Circuit Model Jury Instruction
(Civil) 4.10. The relevant portion of that instruction states, “In determining
whether such force was ‘not reasonably necessary,’ you must consider such
factors as the need for the application of force, the relationship between the need
and the amount of force that was used, the extent of the injury inflicted, and
whether a reasonable officer on the scene, without the benefit of 20/20 hindsight,
would have used such force under similar circumstances.”
Id. at 817.

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instruction is that it may mislead the jury as to what is permissible under
the law. One can easily imagine a jury, having been given only the
general standard, concluding that an officer was “objectively
reasonable” in shooting a fleeing suspect who posed no threat to the
officer or others. But such a result would be contrary to the law and
would work an injustice to the injured plaintiff.169

The Second Circuit has no model jury instructions, but a recent
district court opinion reflects what will likely become the typical post-Scott
approach to a request for deadly force instructions. In Blake v. City of New
York,170 plaintiffs, suspected burglars, hid from police in a ventilation shaft
in a maintenance garage. After an hour’s search, the police found them and
ordered them out of the shaft.171 There was a dispute as to whether
plaintiffs struggled with the officers and as to whether their hands were
visible.172 Blake claimed that one of the officers commanded DJ, the
police canine, to “get” him and that he was bitten “on the face, upper neck,
and both arms.173 Defendants claimed that Blake was bitten on just the left
arm.174 The court viewed these as material issues of fact which had to be
decided by a jury.175 Plaintiffs argued that a properly trained police dog
can constitute deadly force and asked the court to instruct the jury on
deadly force.176
Relying on Scott, the court found it unnecessary to decide the question
of whether the use of the dog in Blake constituted deadly force and
unnecessary, indeed, improper, to give a deadly force instruction.177 Scott
established that “deadly force is simply a type of excessive force,” and that
“[n]o separate legal standard applies to cases involving deadly force.”178
The court acknowledged that pre-Scott, the distinction between deadly and
non-deadly force would have been important because jurors would have
been “instructed to apply more stringent standards in deadly force cases

169.
170.
171.
172.
173.
174.
175.
176.

Id. at 818.
No. 05-CV-6652, 2007 WL 1975570, at *1 (S.D.N.Y. July 6, 2007).
Id.
Id.
Id.
Id.
Blake, 2007 WL 1975570, at *4.
Id. at *2. The district court accurately noted that “[w]hile the Second Circuit has
not decided the question, several other circuits have held that a properly trained police dog
cannot, as a matter of law, constitute deadly force.” Id. at *2 n.2 (citing Dunigan v. Noble,
390 F.3d 486, 492 n.8 (6th Cir. 2004); Robinette v. Barnes, 854 F.2d 909, 912 (6th Cir.
1988); Kuha v. Minnetonka, 365 F.3d 590, 598 (8th Cir. 2004)).
177. Blake, 2007 WL 1975570, at *3, 4.
178. Id. at *3.

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than in cases that did not involve deadly force.”179 Likewise, the court
notes that instructions that include the Garner preconditions present
defendants with a greater challenge in justifying their conduct as
objectively reasonable.180 After Scott, however, “the Court need only craft
a charge which will help a jury decide whether the force used in this case
was reasonable under all the circumstances.”181 The jury would be allowed
to consider the Graham factors,182 as well as factors suggested by the
parties or any other factors that would assist in their reasonableness
analysis.183 The jury would not be instructed “as to the definition of deadly
force or the specific circumstances under which deadly force is or is not
reasonable.”184
Defendants in Section 1983 cases involving deadly force will be quick
to realize the significance of Scott. Circuits with model jury instructions
based on the Garner preconditions will no doubt be revisiting those
instructions. Cases holding that it can be reversible error to fail to include
Garner instructions in deadly force cases are no longer good law.185 As a
practical matter, Scott will have a very real impact on jury trials in Section
1983 excessive and deadly force cases.
CONCLUSION
Regardless of one’s views with respect to Deputy Scott’s conduct on
the night of March 29, 2001, Scott is a case that should have proceeded to
trial. A jury should have been instructed as to the Garner factors, which
“set a threshold under which the use of deadly force would be considered
constitutionally unreasonable . . . .”186 A jury may well have decided that
Scott’s conduct was reasonable, or, in the event of a plaintiff’s verdict, the
district court may well have granted qualified immunity on the ground that
the law was not clearly established in such a way as to give Scott “fair
warning” that his conduct was unlawful. By taking it upon themselves to
judge the reasonableness of Scott’s conduct, the majority of the Court has
rendered a decision with potentially serious consequences. Videotape has

179.
180.
181.
182.
183.
184.
185.

Id.
Id.
Id. at *4.
See supra, note 60.
Blake, 2007 WL 1975570 at *4.
Id.
See, e.g., Rahn, 464 F.3d at 818; Monroe, 248 F.3d at 860, overruled by Acosta,
2007 WL 3013451.
186. Scott, 127 S. Ct. at 1784 (Stevens, J., dissenting).

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been anointed the bearer of truth; law enforcement agencies will be
encouraged to abandon deadly force policies; and federal courts will no
longer instruct on Garner preconditions or advise as to any special factors
governing the use of deadly force. In the process, the Court has done
nothing to clarify the law in excessive force cases to the extent that they are
admittedly fact-bound, or, to the extent that the only relevant fact becomes
whether the subject of a pursuit drives in a dangerous manner, the Court
has created a per se rule that usurps the jury’s function. Whatever would
have been the result of a jury trial in Scott, it would have been far easier to
accept and much less likely to have infected the law than the product that
has resulted from the majority’s night out at the movies. In the words of
Judge Presnell, “I believe we will live to regret this precedent.”187
187. Beshers, 495 F.3d at 1272 (Presnell, J., concurring). Indeed, just as this article
was going to press, the Court of Appeals for the Eleventh Circuit rendered a decision that
pushes Scott to its limits and underscores the prescience of Judge Presnell’s warning in
Beshers. See generally Long v. Slaton, ___ F.3d ___, No. 06-11439, 2007 WL 3407680
(11th Cir. Nov. 16, 2007). In Long, the court reversed the denial of qualified immunity to
an officer who responded to a doctor’s call for help with his psychotic son. Id. at *1. The
doctor was unable to have the son committed because of a lack of available hospital beds.
Id. Deputy Slaton arrived at the house and upon exiting his vehicle, left the keys in the
ignition and the driver’s door open. Id. Long’s father informed Slaton that Long had not
been violent but that he wanted him detained because of a psychotic episode. Id. Deputy
Slaton approached Long with handcuffs to take him into custody. Id. Long, who was
standing in the driveway, ran to the police cruiser, got in, and began backing down the
driveway. Id. Slaton ordered him to get out of the car or he would shoot. Id. When Long
did not comply with the request, Deputy Slaton shot and killed Long. Id. In an opinion by
Chief Judge Edmondson, joined by Judge Hull, the court held that, as a matter of law,
Deputy Slaton’s conduct was objectively reasonable. Id. at *3. The court noted that
“[a]lthough Slaton’s decision to fire his weapon risked Long’s death, that decision was not
outside the range of reasonableness in the light of the potential danger posed to officers and
to the public if Long was allowed to flee in a stolen police cruiser.” Id. In the alternative,
even if there was some doubt about the objective reasonableness of Slaton’s conduct, the
court held the law was not clearly established at the time of the challenged conduct. Id. at
*5. The court concluded that neither Vaughan v. Cox, nor Garner gave sufficient warning
that Slaton’s use of deadly force under these circumstances was unreasonable. Id. at *6-7.
See supra note 133 and accompanying text for discussion on Vaughan. The court
determined that Vaughan was “too different from this case to cause every objectively
reasonable officer to know that the use of deadly force in the circumstances of this case
must violate federal law.” Id. at *6. As for Garner, the court found:
Simply put, the Supreme Court’s decision in Garner—which does not involve a
fleeing motor vehicle—offered little insight on whether an officer, consistently
with the Fourth Amendment, may use deadly force to stop a man who has stolen a
police cruiser and has been given clear warnings about the use of deadly force.
Id. at *7. As in Beshers, the contrary voice came from a district court judge, Judge
Forrester, sitting by designation. Id. at *8. Judge Forrester brought to light two facts not
mentioned by the majority of the panel: that “Deputy Slaton had dealt with the deceased
before without any major problem and that the shooting occurred in a fairly rural area

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several miles from Florence, Alabama.” Id. (Forrester, J., concurring in part and dissenting
in part). Finding no “arguable probable cause” that there was a “serious threat of imminent
or immediate physical harm to the officer or others[,]” and noting that “the possibility that a
nonviolent fleeing felon will later pose a threat of physical harm to others is remote and
highly speculative[,]” Judge Forrester would not have found the use of deadly force by
Slaton objectively reasonable. Id. Furthermore, in Judge Forrester’s view, Vaughan gave
ample warning that the use of deadly force under these circumstances was unlawful. Id.

 

 

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