In civil rights lawsuits filed pursuant to 42 U.S.C. §1983, defendant officers almost universally assert the Qualified Immunity Defense before trial by filing a motion seeking dismissal through Summary Judgement.
The officers’ goal is to obtain an early dismissal of the suit by the trial judge to avoid protracted discovery and trial. If the defense is successful, a judge vindicates the officers as a matter of law (i.e., Summary Judgement) without trial by jury.
For the trial judge to rule on the efficacy of the defense, they must decide, based upon the known facts, whether the officer violated a constitutional amendment and, if so, whether the law was clearly established on the conduct in question.
When material facts of the incident are in dispute, the trial judge has historically been required (by court rule) to adopt the plaintiff’s version of the disputed facts in reaching a decision.
If the trial judge rejects the qualified immunity defense before trial, based upon the required acceptance of the plaintiff’s version of material facts in dispute, the case will proceed to a jury trial unless the trial judge’s decision is reversed on appeal. A trial by jury in these matters is the last thing a defendant officer should hope for.
Scott v. Harris dash cam video: An exception to the rule
Recent rulings of the United States Supreme Court have created a clear exception to the time-honored rule of civil procedure that mandated trial judges adopt the plaintiff’s version of disputed material facts in deciding summary judgement motions in civil rights cases.
The dynamic entrance of police dash cam video onto the litigation stage is the fundamental cause of this dramatic change.
[Get the Police1 ebook: How to buy in-car camera systems]
On April 30, 2007, the United States Supreme Court decided Scott v. Harris 550 U.S. 372 (2007). A Georgia deputy sheriff attempted to stop Harris for speeding. Harris refused to yield and began traveling down a two-lane road at speeds exceeding 85 mph. Deputy Scott implemented the so-called “Precision Intervention Technique” (PIT) to bring the chase to a halt. Harris’ vehicle ran down an embankment, overturned and crashed. Harris sustained injuries that led to him becoming a quadriplegic.
Harris sued Scott and other officials pursuant to 42 U.S.C. §1983, alleging that Scott’s use of the “PIT” maneuver amounted to excessive force in violation of the Fourth Amendment.
Both the Federal District Court and the Eleventh Circuit Court of Appeals accepted Harris’ version of disputed facts, rejected Scott’s motion to dismiss based on qualified immunity and ruled that the case must proceed to trial. Scott petitioned the Supreme Court, which accepted the case for review and reversed.
The Supreme Court ruled 8-1 in favor of Deputy Scott. The Court observed that normal procedure in deciding cases involving pre-trial assertion of the qualified immunity defense and disputed material facts requires the lower courts to accept the plaintiff’s [Harris’] version of disputed facts as true. However, the Supreme Court rejected normal procedure in this case because of the existence of clear and unequivocal video tape evidence that displayed what occurred during the pursuit. The video tape was available from the dashboard cameras that were in the police cruisers that participated in the pursuit.
The Court observed that the dash cam video evidence clearly contradicted Harris’ version of what happened in the pursuit. Harris had given the impression he was driving so carefully one might conclude he was attempting to pass a driver’s test.
The Court noted that the video tape told a different story.
The Court observed, “We see Harris’ vehicle racing down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit.”
The Court also noted, “Far 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.”
The Court made clear that in future cases, the lower courts must make use of reliable video evidence when resolving qualified immunity claims by police officers.
After viewing the video, the Court ruled that Deputy Scott’s tapping of Harris’ bumper was a “seizure” pursuant to the Fourth Amendment and that the “seizure” was lawful, i.e., accomplished with “objective reasonableness” pursuant to the Court’s earlier decision in Graham v. Connor 490 U.S. 386 (1989).
The Court stated that in “judging whether [Deputy] Scott’s actions were reasonable, we must consider the risk of bodily harm that Scott’s actions posed to [Harris] in light of the threat to the public that Scott was trying to eliminate.”
In the latter respect, the Court observed that Harris posed an actual and imminent threat to the lives of any pedestrians, other motorists and the officers involved in the pursuit. The Court explained “it [is] appropriate…to take into account not only the number of lives at risk [i.e., pedestrians, other drivers and police officers] but also their relative culpability. It was [Harris], after all who intentionally placed himself and the public in danger by unlawfully engaging in the reckless, high-speed flight that ultimately produced the choice between the two evils that Scott confronted.”
The Court declared that Harris could have ended the 10-mile pursuit at any time by simply applying the brakes on his vehicle. The Court had no trouble in concluding that Scott acted reasonably under the Fourth Amendment.
Finally, the Court debunked Harris’ claim that the police should have terminated the chase instead of using the “PIT” maneuver upon his vehicle.
The Court declared, “[W]e are loath to lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger.”
The Court concluded by stating, “[i]nstead, we lay down a more sensible rule: 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.”
Plumhoff v. Rikard Dash Cam Video: Exception Reaffirmed
Seven years later, the Supreme Court repeated its emphasis on the videotape exception it created in Scott. On May 27, 2014, the Court decided Plumhoff v. Rickard 134 S.Ct. 2012 (2014). In this case, Rickard, the male driver of a vehicle pursued by police for a traffic offense, and Allen, his female passenger, were shot and killed by pursuing officers.
The Court ruled 8-1 that officers did not violate the Fourth Amendment when they terminated a high-speed pursuit by shooting the driver of the suspect vehicle. Moreover, the Court ruled 7-2 that officers did not violate the Fourth Amendment when they fired 15 shots at the driver to end the dangerous pursuit. Finally, the Court ruled alternatively 9-0 that the involved officers did not violate clearly established Fourth Amendment law at the time they shot and killed the male driver and therefore were entitled to dismissal of the case upon qualified immunity grounds.
In Plumhoff, the driver of a vehicle (Rickard) and his female passenger (Allen) were stopped by a West Memphis, Arkansas, police officer for driving with one headlight. Rickard suddenly drove off and a multi-car police pursuit followed. The chase continued from Arkansas into Memphis, Tennessee.
Several police vehicle video cameras captured the entire chase. Rickard drove at speeds exceeding 100 miles per hour and passed more than two dozen other vehicles during the pursuit. Rickard’s vehicle spun-out and collided with a cruiser. Other police vehicles surrounded the suspect vehicle, leaving only one way for Rickard to attempt escape. Rickard’s front bumper contacted a police vehicle that blocked Rickard from moving forward. The wheels on Rickard’s car were spinning and his car was rocking back and forth. He used his accelerator to break free, even though his front bumper was flush against the front of a police cruiser.
Officers approached the suspect vehicle on foot. Officer Evans approached on the passenger side and attempted to open the door without success. At that time, Officer Plumhoff fired three shots into the Rickard vehicle from the passenger side. Rickard placed the car in reverse and maneuvered onto another street, almost striking an officer in the process. Rickard placed the car in drive and began to move forward.
Officer Gardner fired 10 shots at Rickard’s moving vehicle, first from the passenger side and then from the rear as it proceeded forward. A third officer likewise fired two shots at the vehicle. Officers fired 15 shots at the Rickard vehicle during the encounter. Rickard drove down the road, but subsequently crashed into a nearby building, not far from the shooting scene. Both Rickard and Allen were killed. Twelve rounds hit Rickard and two hit Allen.
The participating officers were sued pursuant to 42 U.S.C. §1983. The Federal District Court Judge refused to dismiss the lawsuit before trial and rejected the officers’ assertion of qualified immunity. The Sixth Circuit affirmed and ordered that the case proceed to trial. The court noted that after the Supreme Court’s ruling in Scott, federal appellate courts are now required to consider evidence such as video that shows that a plaintiff’s version of disputed facts is demonstrably not credible.
The Sixth Circuit reviewed the videotape, but remained unpersuaded that it required reversal of the District Court’s rejection of the qualified immunity defense.
The Supreme Court reviewed the dash cam video and reversed. The Court observed that Rickard drove at speeds of more than 100 mph to outrun the pursuit. He placed the lives of numerous motorists in jeopardy and the Court characterized his driving as “outrageously reckless.”
The Court noted that when Rickard collided with a police vehicle and temporarily came to a stop, he refused to yield. In less than three seconds, with his front bumper flush against a police cruiser, he pressed down on his accelerator, causing his wheels to spin. He placed his car in reverse and backed up in a circular fashion, never yielding to officers on foot near his vehicle.
The Court stated, “The record [i.e., the videotape] conclusively disproves [Rickard’s Estate] claim that the chase … was already over when [the officers] began shooting.”
The Court explained that “Under these circumstances, at the moment when the shots were fired, all that a reasonable officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road.”
The Court ruled that firing 15 shots into the vehicle was reasonable and explained, “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat is ended.”
The Implications
We can derive several learning points from these cases:
- Police dash cam video (and video from other sources) is extremely valuable in police civil rights litigation.
- Dash cam video has resulted in the creation by the U.S. Supreme Court of an exception to the rule requiring lower court judges to adopt only the plaintiff’s version of disputed material facts when ruling on pre-trial Qualified Immunity Summary Judgement motions.
- This videotape exception requires trial judges to examine the videotape evidence to resolve disputed material facts. This new exception has already resulted in two highly favorable pre-trial verdicts for officer defendants at the Supreme Court level in very serious civil rights cases.
- Because the great majority of officers act reasonably in responding to conduct that threatens serious bodily injury/death to the innocent, the availability of videotape evidence in civil rights litigation is very likely to result in future dismissal of these cases without trial on Qualified Immunity grounds.
- The favorable outcome to law enforcement in both Scott and Plumhoff (both cases involving the deaths of the occupants of one vehicle fleeing from police and the permanent serious injury of another driver) highlight the extraordinary value of the Qualified Immunity Defense supported by videotape evidence.
- Scott/Plumhoff demonstrates the Supreme Court’s total disdain for persons who drive in extreme disregard for the innocent and the belief of the Court that law enforcement has a duty to stop these driver’s from engaging in reckless behavior, even if it results in their death or serious bodily harm.
