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"Whose Eyes Are You Going to Believe," And Whose Version of the Fourth Amendment? :
Dan Kahan, Dave Hoffman, and Donald Braman have posted an interesting new article on Scott v. Harris, the high speed car chase case from last Term: Whose Eyes are You Going to Believe? An Empirical (and Normative) Assessment of Scott v. Harris. The idea behind the article is great. The goal was to test who really shared Justice Scalia's views about what a reasonable juror would conclude after watching the video in the case. Their conclusion in a nutshell: Justice Scalia was privileging a conservative white male view of the case, substituting a reasonable juror of the Justices' background for a reasonable juror more broadly.

  I was intensely interested to read this article, both because I worked on the case for Scott and because I focused on similar questions of what videos really show in my posts on the Utah tasering incident. Somewhat uncomfortably, I've concluded the authors made a significant methodological error in their study. Instead of asking survey respondents to apply the Fourth Amendment test the Supreme Court used, the authors devised several tests of their own for what they thought the Fourth Amendment means (or should mean). They ended up asking the survey respondents to apply the standards the authors suggested instead of the test the Supreme Court used.

  My sense is that this methodological move leads the paper to miss its mark. Although its findings are independently interesting, in the end it doesn't actually say very much about Scott v. Harris's view of reasonable jurors. And ironically, what the findings do suggest seem to hint that Justice Scalia's conclusion about reasonable jurors was very likely correct. I initially raised my concerns with the authors, and after a few e-mail exchanges on these issues I was invited to blog my concerns. So I figured I would.

  I. The Case

  Scott v. Harris involved a high speed car chase with Scott chasing Harris and eventually bumping in into Harris to get him off the road, and Harris being injured in the crash. The Fourth Amendment issue in the case was whether Scott's use of force to bump Harris off the road was "reasonable." According to the Court, the boiled down to how much danger Harris posed to the public. Harris claimed in his complaint that he had posed little danger to the public and had been driving safely, a view that the Eleventh Circuit accepted.

  In his majority opinion, Justice Scalia concluded as a matter of law that no reasonable juror could look at the videotape and believe this. To Scalia, the videotape established that Harris was driving dangerously. According to the Scalia, that fact established that Scott's use of force was reasonable under the following Fourth Amendment 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." (slip op, p.13) Because no reasonable juror could conclude that this case was not a dangerous high-speed car chase that threatened the lives of innocent bystanders, the Court ruled that Scott deserved summary judgment.

  II. The Study

  In their new article, Kahan, Hoffman, and Braman (KHB for short) sought to determine if people from different walks of life really agreed with the majority's view of the case. They created a survey in which they gave respondents an overview of the facts of the case, showed them the video, and then asked them to answer the following questions.
1. During the pursuit, Harris drove in a manner that put members of the public at great risk of death.

2. During the pursuit, Harris drove in a manner that put the police at great risk of death.

3. It just wasn't worth the danger to the public for the police to engage in a high-speed chase of Harris when he refused to pull over for speeding. Instead, they should have tried to find and arrest him later.

4. Please indicate how much you think the parties were at fault for the risk posed to the public by the chase: (1) the police were much more at fault than Harris; (2) the police were slightly more at fault than Harris; (3) the police and Harris were equally at fault; (4) Harris was slightly more at fault than the police; (5) Harris was much more at fault than the police.

5. The danger that Harris's driving posed to the police and the public justified Officer Scott's decision to end the chase in a way that put Harris's own life in danger.
  1,350 people took the survey and answered these questions, together with answers to questions about their race, gender, politics, ideology, and the like.

  III. The Results

  There are lots of findings in the paper, but here's a basic summary. First, large majorities of people were inclined to agree that claims (1) and (2) are true. On a scale of 1 to 6, with 1 being "strongly disagree" and 6 being "strongly agree," the claims that Harris's driving posed a "great risk of death" registered an average of 5.06 for great risk of death to the public and 4.67 for great risk of death to the police. There was somewhat of a racial gap on this determination: for example, assessments of whether Harris's driving posed a "great risk of death" for the public ranged form a 4.56 for black respondents and 5.1 for white respondents. But for the most part respondents agreed that Harris caused a "great risk of death."

  There generally less "agreement with the Court" on the other questions. Most notably, when asked Question 3, whether the chase "wasn't worth it," respondents averaged a 3.12 — generally, only "slighly disagreeing" with that statement. And there the racial gap was greatest: African American respondents averaged a 3.89, "slightly agreeing" with the claim, while caucasian respondents averaged a 3.06, "slightly agreeing."

  The real kick of the study occurs later in the paper, when KHB use regression analysis to imagine four different people: Ron, a 47-year old rich white male Republican from Arizona; Linda, a black liberal woman of modest means from the northeast; Bernie, a liberal communitarian professor from the northeast; and Pat, an average American. According to the regression analysis, the differences were relatively modest for questions 1 and 2. 92% of right-wing Rons would agree or lean towards agreeing that Harris posed a great risk of death to the public; 88% of Pats would, as well; 73% of the professor Bernies and 69% of liberal Lindas would have the same reaction. These are differences, certainly, but not terribly stark ones.

  On the other hand, the differences among Ron, Pat, Linda, and Bernie became very dramatic when asked to determine if the chase was worth it and to assign relative fault. When asked if the chase was worth it, 83% of Rons would say "yes"; 73% of Lindas would say "no." 93% of hypothetical Rons would see Harris as clearly more at fault than the Police; in contrast, only 34% of Lindas would have that reaction. Pretty significant differences.

  IV. KHB's Conclusion

  The significance of these results, according to KHB: the Justices, who are mostly "Rons", were privileging the "Ron" view of the world over the other views. In a nutshell, the were looking at the case through the cultural lens of rich white conservative men, and they didn't realize how a lot of people from different walks of life would look at the case differently.


Doug B. (mail) (www):
This fascinating review of a notable article confirms my "Ron" view that blogs can be used effectively as scholarship in action.
1.10.2008 7:04pm
dave hoffman (mail) (www):
Orin,
These are great, thoughtful, comments. I'm sure we'll be responding shortly!
1.10.2008 7:18pm
George Weiss (mail):
orin.

i think you read scott v harris correctly...the thing that no jury was said to have been able to hold is whether harris' action was a dangerous high-speed car chase that threatens the lives of innocent bystanders.

the underlying reasonableness criterian was only what they used to get around Tennessee v Garner...so that lethal force could be used even when the suspect was not fleeing a dangerous felony..as long as there was some other reason it was a reasonable seizure under the 4th.. the SCOTUS announced such a reason in this case...

but it did not simply say that no jury could find the actions of the officer "reasonable under the circumstances" as if it were a common negligence tort or something...indeed..were that the test...than different juries might have found the Tennessee officer's reasonable.
1.10.2008 7:39pm
whit:
"93% of hypothetical Rons would see Harris as clearly more at fault than the Police; in contrast, only 34% of Lindas would have that reaction."

wow, this is definitely NOT surprising.

93% of conservatives would find a suspect to be more at fault than the cops for NOT PULLING OVER AND PUTTING OTHERS IN DANGER, but only 34% of liberal lindas would.

iow, it appears the majority (66%) of liberal lindas find the police as much or MORE at fault (the only other two options) for the "danger" of the pursuit than the actual nimrod who refuses to pull over. the stereotype of liberals is that things are rarely the criminals fault - there's always an excuse, and when in doubt - blame the evil corporations, the cops, society, etc.

fwiw, i am not agreeing that it is good policy to pursue merely for speeding. my agency (and most i am aware of) specifically prohibit pursuing MERELY for speeding, or for any infraction for that matter.

but to believe that the cops are MORE at fault for the danger of a pursuit than the actual criminal who is eluding them is completely predictable from a liberal.
1.10.2008 7:44pm
sjalterego (mail):
Although I largely agree with your analysis Orin you are leaving something out. You state that "The study did not ask respondents to apply the Fourth Amendment test the Court announced — that is, the test that jurors would need to apply if the case had been sent to a jury."

However, what the Supreme Court does (even though it didn't decide to do so explicitly in this case) is to decide what the legal standard SHOULD BE. If the point of the article is to question simply whether under the enunciated legal standard there could be differing views as to whether Harris were driving dangerously then your analysis/critique is at its strongest.

However, if you read the article to imply that the Supreme Court created a standard that unfairly authorizes the police to use deadly force when other people (who are not olde white male republicans) think that the use of deadly force in such situations should not be allowed then your critique has less force. In that sense, the only way to get lay people to provide an opinion as to the ultimate question (was this use of deadly force reasonable) is to ask exactly that question and NOT to simply ask a filtering question (did Harris pose a threat).
1.10.2008 7:49pm
David Walser:
Very interesting, and I think valid, critique of the article.

On the question of whether the Scalia's (or the Court's) attempt to find a bright line is correct or not, I think that it is. A legislature can further restrict the police's ability to engage in such chases -- and it might be prudent for the legislature to do so -- but I think it's unwise for the courts to enshrine such a public policy choice in the Constitution.

"Is it worth it?" is a question that requires the balancing of competing priorities. That balance is apt to change over time (and in response to public concerns) and legislatures should be left free to strike a new balance in response to changing public opinion. On the other hand, if the Court were to have found Scott's stop to be unreasonable, the Court would have fixed the current balance into law -- with very little ability for the people to re-strike that balance in the future.
1.10.2008 7:49pm
Sean M:
Interesting notes, Prof. Kerr, and a classy comment from Prof. Hoffman, who seems to make taking your critique seriously and participating in a real give-and-take.

This, it seems, is what scholarship should be all about.
1.10.2008 8:14pm
dcuser (mail):
SjAlterEgo misunderstands the debate. There was general agreement among all involved -- the Eleventh Circuit, the Supreme Court majority, and Justice Stevens -- about what the test was. The question was how to apply the summary judgment standard -- i.e., whether to say that a jury properly applying that standard to the case at hand could have permissibly found facts the facts that would have been required for the plaintiff to win under that test.

Orin's comments on the shortcomings in the study are perceptive. But KHB's exercise brings up another interesting question. If 8% (one in 12) or 16% (2 in 12) or 24% of survey respondents say that they would find certain facts, does that mean that summary judgment should be precluded. On the one hand, no -- the law says that only "reasonable" inferences should count, so we don't have to withhold summary judgment on the grounds that a perverse or bad-faith juror could find in a person's favor. On the other hand, survey responses showing a substantial number of people viewing things a certain way do give us a sense of what should be considered reasonable. (If 100% of people answer one way, it's presumptuous -- though perhaps possible -- for a judge to discount all those persons' views as irrational.) Should we correct the survey results in recognition of the fact that certain people (ex-felons, law-enforcement officers) might have been surveyed would would have been ineligible to serve on the jury?
1.10.2008 8:27pm
Duffy Pratt (mail):
There's another basic shortcoming to the study. Juries deliberate, surveys don't. Even if the legal standard has to do with what a reasonable juror could conclude, the conclusion happens after a process of deliberation. I don't know how that would effect the outcome here, but I would like to think that we put them all into that little room for a reason.
1.10.2008 8:33pm
Owen Hutchins (mail):
I'm a liberal, and having seen the video I would conclude that Harris was a threat, a risk, and at fault 100%. I don't know anyone that would say the police were more at fault. I think their regression analysis may be flawed.
1.10.2008 8:44pm
Elliot123 (mail):
"I don't know anyone that would say the police were more at fault."

There is a segment of the population that will always say the police are at fault, just as there is a segment that will always say the accused is at fault.
1.10.2008 8:51pm
WHOI Jacket:
How can the accused not be at fault?
1.10.2008 8:55pm
tvk:
Orin, when the question is whether no reasonable juror could find otherwise, I think the difference between 93% and 69% probablly is significant and stark.

There is a very good argument to be made, I think, that 93% indicates there is no reasonable debate, while 69% indicates there is such reasonable debate. Thus, if Justice Scalia thinks the reasonable jury is Ron, and Justice Stevens thinks the reasonable juror is Linda, then the article explains their respective decisions perfectly.
1.10.2008 8:56pm
AF:
This post touches on what I think is a broader problem with the paper's methodology: It assumes, incorrectly in my view, that summary judgment (and other forms of judgment as a matter of law, see p. 41 fn 81) consists entirely of applying fixed legal standards to discovered facts.

The paper states that in granting judgment as a matter of law, a judge determines that one "view of reality" is "one 'no reasonable' citizen could possibly hold." (p. 46) It asserts that if "members of groups who share a distinctive understanding of social reality" systematically disagree about whether the facts meet the legal standards, summary judgment should not be granted -- unless we are prepared to tell entire demographic groups that they are not "reasonable." (p. 46) This account of judgment as a matter of law assumes that legal standards are fixed and that a decision in any given case depends on determining whether a "reasonable" person could believe the facts meet those standards.

In my view, this is an incomplete account of judgment as a matter of law. Judgment as a matter of law is also the mechanism by which judges alter legal standards, common-law style. Thus, granting judgment as a matter of law does not necessarily entail a judgment that those who would disagree with the judgment, under a given set of legal standards, are "unreasonable." It could also entail a clarification or alteration of what the applicable legal standards mean. If Orin is right, that is exactly what happened in Scott v. Harris: the Court clarified the applicable standards, and then, under those standards, determined that summary judgment was warranted.

A change in the law does not necessarily need to be encapsulated in a canonical verbal formulation. The very fact that a Court holds something as a matter of law -- its holding -- changes the law. Thus, it is unclear to me whether a judgment as a matter of law can ever be evaluated based on a survey of how people would have decided the case under a given set of legal standards. There is no way of knowing whether the court changed the law or misapplied the standard of review.
1.10.2008 9:13pm
James Lindgren (mail):
ORIN:

1. Great post!

2. QUESTION WORDING. I wondered when I read the survey questions about the wording of the question: "great risk of death." That seemed an awfully extreme wording, perhaps specifically designed to depress the amount of agreement. Accordingly (if I read you correctly), I was disappointed to discover that, not only was this language DIFFERENT than that used in the case, but this language was indeed much MORE EXTREME than the test actually used by the Court.

3. HINDSIGHT BIAS. I wonder about hindsight bias. The question should be whether the chase was justified ex ante. If the respondents knew that the plaintiff was injured (rather simply that someone might be injured), then they might be more likely to assume that the chase was unjustified. If Harris or bystanders had been killed, I expect that there would have been a strong belief that the chase was unjustified ex post.

It might have been better to ask the respondents twice: before and after the chase takes place. Before seeing the chase the researchers might perhaps supply the respondents with information on the results both of high-speed chases (presumably most don't result in injury) and on the likelihood that the suspect would actually be causght later if the chase took place (presumably most are not caught later).

4. WIDE ANGLE CAMERAS. I also wonder whether some police videos use wide angle cameras. This can make a chase appear both faster and more dangerous than it might actually be.

Jim Lindgren
1.10.2008 9:26pm
Steven Joyce (mail):
I suspect that the inclusion of Question #3 ("It just wasn't worth the danger to the public for the police to engage in a high-speed chase of Harris when he refused to pull over for speeding. Instead, they should have tried to find and arrest him later") substantially depressed agreement with Questions #4 and #5. We know that survey respondents are very sensitive to wording that suggests an answer to the question, and the explicit suggestion that the police could have looked for Harris later is exactly the sort of thing I would have included if I wanted to minimize the percentage of respondents supporting the police in later questions.
1.10.2008 10:04pm
CiarandDenlane (mail):
I generally stop reading articles that have "privilege" take "view" as an object, and I have read only your summary of this particular article (I also read Scott and your posts on Scott). But I'll assume for now that such jargon can capture some important truths, and I'll further assume that, in reacting to the article, I'm privileging my own view, which is that of a now 50-something white male who can never figure out whether he is on balance liberal or conservative and whose 26-year old sister was killed by a 26-year old driver running a red light at high speed while being pursued by a 26-year old cop. I don't know how justified or not the pursuit was. I never cared to find out. Even if the policewoman had made a very bad judgment in undertaking the pursuit, I would still have no doubt that the responsibility for my sister's death rests with the [oh, I can't use that language here] who slammed his car into her, left her, and ran off into the woods.
1.10.2008 10:04pm
OrinKerr:
Great comments, everyone -- really really good stuff.

In response to Jim, who writes:
HINDSIGHT BIAS. I wonder about hindsight bias. The question should be whether the chase was justified ex ante. If the respondents knew that the plaintiff was injured (rather simply that someone might be injured), then they might be more likely to assume that the chase was unjustified. If Harris or bystanders had been killed, I expect that there would have been a strong belief that the chase was unjustified ex post.
I think this is critical. I was one of Scott's lawyers, and I think Scott was acting reasonably ex ante. And that's the perspective the Supreme Court has told us must be applied: "The 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. ." Graham v. Connor. So under the Fourth Amendment's ex ante standard, Scott was correct to win.

On the other hand, the question of whether the chase was "worth it" seems to call for an ex post assessment. I think that the chase absolutely was not 'worth it' viewed ex post. Think about it: This case involves an extraordinary tragedy, in which a young man ended up a paraplegic. How could anyone think that the chase was "worth it" viewed ex post?
1.10.2008 10:53pm
PGB:
I tend to agree with Jim and Steven above on the subject of the question wording, particularly with respect to the third question. The first two questions are worded objectively and precisely. However, the third question runs into trouble at the second word. "It just wasn't worth the danger..." What's with the adverb? And might asking the question in the negative form (especially coupled with the presentation of an alternative) produce more agreement than the positive form would have produced disagreement? This might not be so problematic if not for the fact that all the other agree/disagree questions are presented in positive form.

I wonder what the results would have been if the third question were worded like so:
It was worth the danger to the public for the police to engage in a high-speed chase of Harris when he refused to pull over for speeding.

I would be curious to see the results from that version of the question compared to the version used in the study.

At the same time, I think we ought to (and Orin does) commend the authors for finding an innovative way to consider the issue of excessive force.
1.10.2008 11:28pm
Mr. Liberal:
The rule defining reasonableness itself favors white male conservatives. That you would use deadly force, putting the lives of both the public and the defendant at risk, when it is not necessary to engage in the chase in the first place, is something only a white male conservative could love.

If you consider the concept of reasonableness, considering factors that most people would consider important, you would come up with a very different rule. A rule that would consider whether the chase should occur in the first place.

Yes, it is important to catch the bad guys. But, not at all costs. And not when the only known offense is merely speeding.

I think the study is brilliant and useful. That Kerr is arbitrarily limiting the question assuming the white male definition of reasonableness, simply begs the question. The concept of reasonableness is much more robust than its particular formulation in Harris v. Scott.
1.10.2008 11:54pm
Mr. Liberal:

but to believe that the cops are MORE at fault for the danger of a pursuit than the actual criminal who is eluding them is completely predictable from a liberal


I think the idea that fault is a limited resource than must be divided is a nonsensical conceptual model.

I think to say that the cop is more at fault, the citizen is more at fault, or they are both equally at fault is nonsensical.

If a police officer were to pursue for speeding when it is against department policy, sure that police officer would be at fault.

If a citizen were to evade a police officer who suspected the citizen of nothing more than speeding, the citizen is at fault.

In both cases, the police officer and the citizen are violating duties.

They are both 100% at fault. The actions of both are completely unreasonable.

It is completely arbitrary to say that the citizen is 60% at fault and the police officer is 40% at fault. It is equally arbitrary to say that police officer is 60% at fault and the citizen is 40%. Fault is not a limited resource. It can be assigned in unlimited quantities to both parties.

Alas, obviously our tort system does has adopted this nonsense, and creates these artificial and nonsensical questions.

Basically, when you ask who is more at fault, between two people who have violated serious duties they owe to each other and to society, you are really asking who do you like more. Because there is no objective non-arbitrary way to assign fault that does not boil down to, "who do you like more."

Alternatively, if a jury knew that a plaintiff would get nothing, unless the other party was at least 51% at fault, they might say that the defendant was 51% at fault. But that is arbitrary. Many people would just like to split these things down the middle, and say they are each 50% at fault. But that is equally arbitrary. (Although, perhaps reasonable, given the intractability of the question.)
1.11.2008 12:05am
Mr. Liberal:
OrinKerr,

I disagree. I think that someone becoming a paraplegic is a foreseeable possible consequence of using a deadly weapon (a heavy police car) on someone.

While I agree that we should beware of ex post bias (when we know that something has gone wrong, we may overestimate our ability to see that it would go wrong ex ante), I think that people who do not want to take responsibility for their actions love to play the "ex post perspective/ex ante perspective distinction card."

Here is the problem. Being aware of a bias may lead to another bias. That is, an "overcorrection of known biases bias."

The fact is, there is a reason we have these biases. Usually, when things go wrong, someone has seriously miscalculated. It is usually not merely a matter of updating ex ante probabilities with knowledge that can only be known ex post.

The fact is, people are often not reasonable.

I think Alexander Hamilton best: "Man is a reasoning rather than a reasonable animal."

Those who overplay the "ex ante/ex post perspective distinction card" often are trying to falsely conceptualize men as reasonable animals, rather than merely reasoning animals.
1.11.2008 12:20am
Mr. Liberal:

3. HINDSIGHT BIAS. I wonder about hindsight bias. The question should be whether the chase was justified ex ante. If the respondents knew that the plaintiff was injured (rather simply that someone might be injured), then they might be more likely to assume that the chase was unjustified. If Harris or bystanders had been killed, I expect that there would have been a strong belief that the chase was unjustified ex post.

It might have been better to ask the respondents twice: before and after the chase takes place. Before seeing the chase the researchers might perhaps supply the respondents with information on the results both of high-speed chases (presumably most don't result in injury) and on the likelihood that the suspect would actually be causght later if the chase took place (presumably most are not caught later).


Here is a problem with this. You are dodging the issue of value judgments.

You not only have to know these probabilities (which I am pretty damn sure that no cop deciding whether or not to engage in a chase knows. Does the average cop think, if I give chase, there is a 2% chance of a fatality to the defendant, a 1% chance of a fatality to an innocent bystander, a .5% chance of a fatality to me, a 3% chance of a minor injury to the defendant, a 5% chance of a moderate injury, a 7% chance of a minor injury, and even more probabilities of injury to innocent bystanders and injuries to other police officers) but you have to assign values to things.

What is the value of catching an evading speeder? Does one consider the ex ante probability that an evading speeder is evading precisely because they have a warrant for a much more serious crime? What is that ex ante probability?

What is the cost of a major injury to the defendant? What about a major injury to an innocent bystander? Of a major injury to the police officer? What is the cost of death for all of the above? What is the cost of a moderate injury? What is the cost of a minor injury?

The fact is, even doing an ex ante analysis is completely intractable. Not even your typical genius would be capable of performing such an analysis before deciding whether to chase a speeding suspect. In reality, a police officer deciding whether to pursue is going to need to depend on instinct and more base animal instincts rather than this sort of pure idealized rationality.

All this is to say, that while the ex ante/ex post idea and concern about hindsight bias is theoretically important, in practice, it really is not all that important.

If we know that hindsight bias exists, that doesn't know mean we know how much it matters. I think that often, those who mention hindsight bias tend to overstate its importance, which is another sort of bias. And often, the real reason for mentioning hindsight bias is to justify what turns out to be a bad decision. Whether one believes that hindsight bias is big, medium, or small problem in any particular context might have everything to do with how you want to resolve the case, based on your animal instincts.

If you want to let someone off the hook for a decision gone wrong, you emphasize hindsight bias. If you you want to hold them accountable, you minimize it. But, typically, what you do not do, is find a principled manner to assign an objective value to it.

Again, I turn to Alexander Hamilton:
"Man is a reasoning rather than reasonable animal."
1.11.2008 12:39am
GV:
Perhaps another way to look at this paper is that it confirms that your lot in life -- your skin color, your gender, your socio-economic status, etc. -- will affect how you interpret facts. It's an obvious conclusion, but one that I think gets lost at times when courts declare what no reasonable person would conclude. I think this was Justice Stevens point when, in dissent, he chided his colleagues for taking off their judicial robes and putting on their jury hats.

I think judges often forget how different their intuition is going to be from the average person. Perhaps most lawyers are guilty of that -- we're all well educated and most of us make (or will make) and substantially higher amount of money than the average American. What seems reasonable to your typical lawyer (let alone your typical judge) is going to be radically different than your typical American.

Having re-read Scott just now, I don't think I agree with Orin's characterization of what a hypothetical jury would need to decide. On page 11 of the slip opinion (page 13 of the pdf linked), the Court says: "Thus, in judging whether Scott's actions were reasonable, we must consider the risk of bodily harm that Scott's actions posed to respondent in light of the threat to the public that Scott was trying to eliminate." Orin, on the other hand, frames the issue as considering how much danger Harris posed to the public, which is just one-half of the equation. A question I had then, which I still have now, is that the Court, in addressing Scott's decision to ram another speeding car, only considering the danger to Harris. But what about the danger Scott's decision posed to other, innocent motorists? Why is that legally irrelevant? (Honest question. I'm not asking rhetorically.) It seems to me that if you weigh the danger Harris posed to the public verse the danger Scott's decision posed to Harris and the public, I would be very inclined to find that Scott's actions were not defensible. But more to the point, I think reasonable minds could differ if that were the issue. Maybe I'm missing something obvious.
1.11.2008 12:43am
Dan Simon (mail) (www):
Let's see if I understand this...to protect citizens' rights from political decisions subject to the vagaries of public opinion, the Supreme Court imposes Fourth Amendment constraints on police forces. Those constraints include, in this case, a "reasonable juror" standard, whose definition, it turns out, can be clarified by examining...public opinion polls.

Have I got that right?
1.11.2008 12:53am
OrinKerr:
Dan Simon asks: "Have I got that right?"

No. The reasonable juror standard is a question of summary judgment standards, not Fourth Amendment law.
1.11.2008 1:03am
OrinKerr:
GV writes:
Having re-read Scott just now, I don't think I agree with Orin's characterization of what a hypothetical jury would need to decide. On page 11 of the slip opinion (page 13 of the pdf linked), the Court says: "Thus, in judging whether Scott's actions were reasonable, we must consider the risk of bodily harm that Scott's actions posed to respondent in light of the threat to the public that Scott was trying to eliminate." Orin, on the other hand, frames the issue as considering how much danger Harris posed to the public, which is just one-half of the equation.
That's incorrect, I think. Justice Scalia's opinion in Scott takes the balancing standard of reasonableness and deduces a rule that governs high speed car chases. So the law for high speed car chases is the rule -- that's the legal rule that juries would have to apply in such cases (as circuit court opinions following Scott have held).
1.11.2008 1:05am
lucklucky (mail):
Ex/Post. What about if Harris speeds next day and kills someone?
1.11.2008 2:06am
Visitor Again:
I'm privileging my own view, which is that of a now 50-something white male who can never figure out whether he is on balance liberal or conservative and whose 26-year old sister was killed by a 26-year old driver running a red light at high speed while being pursued by a 26-year old cop. I don't know how justified or not the pursuit was. I never cared to find out. Even if the policewoman had made a very bad judgment in undertaking the pursuit, I would still have no doubt that the responsibility for my sister's death rests with the [oh, I can't use that language here] who slammed his car into her, left her, and ran off into the woods.

I take a different view as a 60-something who, more than 13 years ago, had his life partner injured in a head-on collision when the police chased a stolen car down a major thoroughfare in Los Angeles during morning rush hour. The stolen car, on the wrong side of the road, slammed into my girlfriend's car; the thief ran off, hopped a fence and was never caught. It was entirely forseeable--indeed, almost certain--that the chase would end in a collision and that some innocent third party or parties would end up dead or badly hurt.

The slimeball who stole the car is, of course, responsible for the crash, but so are the police. I wouldn't expect the slimeball to exhibit any concern for innocent citizens as he attempted to escape the police; criminals usually do not worry about such things. I would expect the police to balance the danger to the public involved in letting him get away, at least for the time being, versus the danger to the public in chasing him at high speed in rush hour conditions. And I think it entirely reasonable to conclude they should not have engaged in the chase. The health and safety of innocent citizens is more important than catching a car thief.

More than a decade later my girlfriend still suffers great pain every single day from the back and hip injuries she sustained. I view the police as responsible for that as well as the slimeball.

By the way, the chase violated LAPD chase policy, but the police were immune from liability because the LAPD had a chase policy in place. The chase took place in South Los Angeles, where nearly all the residents are black or brown. I doubt the police would have dared to undertake such a chase in rush hour conditions on, say, Beverly Boulevard or Melrose Avenue. But on Jefferson Boulevard they felt free to get their adrenaline rush.
1.11.2008 2:38am
whit:
"I think to say that the cop is more at fault, the citizen is more at fault, or they are both equally at fault is nonsensical. "

then disagree with the poll, but i disagree. note that in my (limited understanding) of much of civil law, this IS the concept that is accepted, however stupid - iow, that company X (with deep pockets) could be 5% at fault and company Y 95% at fault. company X still pays big cause they got big $$$. or something.

regardless.

my point is that given the choice of who is MORE at fault (iow, choosing a side), the liberal chooses the cop pursuing a speeder as MORE at fault than the actual guy committing the felony (eluding).

that really says a lot about how they view the world - especially in regards to people being less responsible for their OWN action, than society, cops, corporations, etc.

it's always an external locus of control for them when people do wrong. just skim the blogs. subprime is almost completely the fault of predatory lenders NOT greedy overreaching overleveraging homeowners. another example.

as a libertarian, i tend to believe people are responsible for their own actions. i don't care if a bar "overserved" somebody. if the overserved party goes out and drives that should be ONE HUNDRED PERCENT his fault, not the bar's responsibility. i realize that's not the law, but i detest the "blame others" mentality.
1.11.2008 6:04am
whit:
it's kind of ironic that within a very short time of reading this thread i was involved in a pursuit that resulted in a

1) revoked driver
2) that was extremely intoxicated
3) that had committed two hit and runs before i even encountered her
4) that had multiple warrants for various offenses

barreling across an intersection at high speed and JUST missing a fat tree that SURELY would have resulted in death or gross bodily injury.

guess what?

it's HER fault.

of course the pursuit was for hit &run (not speeding), which is a pursuable misdemeanor (in my jurisdiction). and also that the crash occurred literally a matter of seconds after i lit her up with lights and siren (iow, there was no time to even consider terminating...)

but when interviewing her, what was the (oh so typical response)...

it was EVERYBODY's fault but her own...
1.11.2008 6:08am
Blogers:
And you wanted Bloody Tony (Scalia) to rule what?

There is big difference between alleged criminal and policeman. The latter must uphold the law.

Since no juror would conclude as Bloody Tony, he found a reason to kill the case on his own.

Makes you wonder how those family prayers at dining table in the Scalias house look like.
link
1.11.2008 7:02am
CiarandDenlane (mail):
"There is big difference between alleged criminal and policeman. The latter must uphold the law."

Um, doesn't that "privilege" criminality? A criminal isn't someone who has a privilege not to obey the law. He or she someone who chooses (at least for a mens rea crime) not to do so.

When he is chased, he is priviliging his cowardice, his selfishness, his evil over the interests of his fellow citizens.

Perhaps in some cases, the pursuing policewoman is making a misjudgment. Ex ante the calculations are (as Mr. Liberal explains) incredibily difficult to do on the fly. Even where, as Visitor Again alludes to, there is a policy that attempts to give police rules that will (usually) lead to good decisions on whether to chase, a failure to follow such a rule will almost always be a misjudgment (not much of what I do has to be determined by resort to original principles, but I also don't remember or always correctly apply every rule that I am supposed to; fortunately, I work in an office and can usually look up those rules rather than have to make instant decisions like a cop) rather than a deliberate choice to do an evil thing.

Asking who is "more" responsible is not an arithmetic problem. On the one side we have a misjudgment. On the other, a choice of evil. The moral responsibility is entirely with the latter.
1.11.2008 8:20am
Ralph Phelan (mail):
Once again, legally oriented "social science" frames the basic questions to build the desired result in from the beginning.

The survey methodoly, trying to measure difference in perception &belief as a function of demographics, is interesting. The failure to distinguish between beliefs about matters of fact, which are a jury's job, and matters of law, which are not, is fatal. And given that these were law professors, it's hard to believe it's an accident.

It's kind of sad, as these methods could be very useful if they were in the hands of scientists searching for truth rather than lawyers trying to make their case.
1.11.2008 8:30am
Ralph Phelan (mail):
However, if you read the article to imply that the Supreme Court created a standard that unfairly authorizes the police to use deadly force when other people (who are not olde white male republicans) think that the use of deadly force in such situations should not be allowed then your critique has less force.


Surveying people to determine whether they do indeed view the facts of a case the same way is important in determining what a "reasonable" jury would conclude about the facts.

But people's policy views on what sort of circumstances justify measured by expressed through elections rather than survey questions.
1.11.2008 8:45am
Ralph Phelan (mail):
"justify a high speed chase should be measured by elections"
1.11.2008 8:47am
Ralph Phelan (mail):
To be succinct:

If you're trying to measure whether jurors from different walks of like see the video the same way, you don't ask them normative policy questions like "Was it worth it?"
1.11.2008 8:50am
WHOI Jacket:
Isn't it not "speeding" after a pursuit is engaged, but "evading arrest" and "reckless endangerment"?

I mean, the cops don't conclude 80+ mph, multi-county, multi car chases with tickets, do they?
1.11.2008 9:55am
Aultimer:
Another study could address hindsight bias and other latent questions by dividing the sample and telling some that no one was injured, some that only the perp was injured, some that only the officer was injured and some that only bystanders were injured. Next time I go to law school, maybe.


whit: as a libertarian, i tend to believe people are responsible for their own actions. i don't care if a bar "overserved" somebody. if the overserved party goes out and drives that should be ONE HUNDRED PERCENT his fault, not the bar's responsibility.

I agree. But a chase requires 2 parties. Are they both 100% responsible for the dead bystanders, or does the previously unlawful, but (for the sake of argument) not dangerous actor get the prize?

I don't think reasonableness should ignore the fact that the dangerous chase resulted directly from the defendant's continuing pursuit. As a juror, I'd need to know whether he'd radioed for help in terminating the pursuit, and some circumstances of the initiation of the chase (whether the speeder was doing something notably dangerous - e.g. 55mph in a school zone vs. 65 in a 55).

Bottom line - if the plaintiff were other than the perp (an injured bystander) I think the summary judgment would've gone the other way.
1.11.2008 10:43am
Lugo:
Yes, it is important to catch the bad guys. But, not at all costs. And not when the only known offense is merely speeding.

I would be curious to know what proportion of people who don't pull over when a police car is behind them with its lights on are guilty of something more than just a traffic offense. To me it is inconceivable that I would not pull over if my only offense was speeding. Do people who run tend to be be "not just traffic offenders" and thus more worthy of chasing than "just traffic offenders"?
1.11.2008 10:52am
pete (mail) (www):
Anyone have a link to the video so I can judge its reasonablness?

From reading the description of the case so far it seems that the police officer used reasonable force. If you do not want to end up a parapalegic, then pull over when the police ask you to. Its not that freaking hard to do so and I have done so myself twice with no ill effects other than a ticket. I have a lot of sympathy for innocents who get injured in police chases and hope police departments develope wise chase policies. One of my wife's best friends was a passanger in a car hit by a fleeing felon who was being chased by police. She does not even remember the accident, but ended up with her jaw wired shut for the next two months. I have no sympathy for those injured who do not think the laws apply to them and do not pull over.
1.11.2008 11:01am
Adam J:
Nice post Orin. However, your statement that "the only question that matters is whether there was a 'dangerous high-speed car chase that threatens the lives of innocent bystanders'" can't be right. Doesn't the court also have to consider the method of seizure? After all, if Scott had decided at the end of the pursuit by firing his gun indiscriminately at Harris, the court probably would have found it to be an unconstitutional seizure, even though this doesn't change that there was a "dangerous high-speed car chase that threatens the lives of innocent bystanders".

Obviously it would have been completely unreasonable for the police to not take steps to end the pursuit, because it did pose a significant risk to the public. However, that doesn't necessarily mean the method the police used to seize Harris was reasonable. The method posed significant risk to the public itself- it insured that Harris would continue driving at high speeds until apprehended, and now several police cars would be driving at high speed, not just Harris' car. Begs the question whether the chase was reasonable in the first place in my mind. That's why I think that question 3 of the paper is such an important question.

Scalia deals with question 3 in a way at the end of his opinion, but I think where Scalia's analysis somewhat flawed where he starts comparing ramming Harris off the road to simply ending pursuit.. Scalia says ramming Harris off the road was the only certain way to end pursuit. But, ramming Harris off the road wasn't certain to end the pursuit because Scott could have failed to successfully take him out. He also argues that discontinuing pursuit would create a perverse incentive for people to speed in order to avoid being chased. This is a much stronger argument, although there are still plenty of incentives not to flee, as fleeing the police at high speeds tends to be a serious crime that will deter many, and fleeing at high speeds carries quite a bit of risk of seriously injuring oneself. I think people could have found the pursuit to be unreasonable simply because not giving chase it would have been a better way of eliminating the risk to the public.
1.11.2008 11:02am
John M. Perkins (mail):
My bias is always present to the jury.

Anyway, the video is at: chase video

Darker than I expected.
1.11.2008 12:36pm
Mr. Liberal:

as a libertarian, i tend to believe people are responsible for their own actions. i don't care if a bar "overserved" somebody. if the overserved party goes out and drives that should be ONE HUNDRED PERCENT his fault, not the bar's responsibility.


I am fine with saying that the drunk driver is responsible. As long as you recognize the bar is responsible too.

Does a bar not have a duty to ensure that those it profitable overserves with alcohol, have a means of arriving home or another safe destination in a way that is not likely to lead to the death of the customer or, more significantly, other innocent members of society?

Isn't this is especially so given that we know that people's judgments and inhibitions seriously deteriorate as they drink.

In other words, in many cases a person who has already started drinking and partially lost their inhibitions, is more likely to exercise poor judgments in determining how much more to drink.

Does the bar have no responsibility whatsoever?

If someone were to just straight up die of alcohol poisoning, entirely from drinks served by the same bartender in the space of a couple of hours, are you okay with that?

If an innocent bystander dies because whoever served someone who is heavily inebriated just watches them drive off, is there no responsibility there?

In a previous thread, you defended drunk driving laws. Against those who honestly and stupidly believe, apparently when sober, that their driving is just fine when they are intoxicated. Given that people tend to overestimate their own abilities, and even more so when drunk, shouldn't bar who are in the business of serving alcohol for a profit take actions from preventing their predictably and foreseeably overconfident customers from killing themselves and other innocent members of society?

If you run a bar for a profit, don't you owe it to society to minimize the number of deaths and life-altering injuries to innocent members of the public and to your customers that occur because of your business?

The big problem I have with your analysis is that you seem to think that just because the driver is at fault, that this somehow excuses the bar. That is simply foolish.

As a police officer, if a hypothetical police officer leaves the back door of his patrol car unlocked with a known serial killer in the back who he has decided not to handcuff and left alone while he decided to get a donut, are you going to say he has no responsibility for the subsequent murders that occur simply because the serial killer is obviously evil?

That is, does the evil of the serial killer excuse the incompetent police officer?
1.11.2008 12:39pm
OrinKerr:
Adam J,

The Court *did* consider that. Justice Scalia took the general reasonableness standard and crafted a rule for how it applies to high speed chases. That rule becomes the law for high speed chases; that's what courts now apply in these sorts of cases.

In response to Ralph Phelan, I certainly don't think any error was intentional. You have to understand that there is an enormous cultural cognition bias going on here. Like everyone else, law professors generally see what confirms their worldview. Law professors come from a culture in which it is presumed that you always oppose Justice Scalia's opinions that rule in favor of the police: either you disagree with the result, or you grudgingly agree with the result but conclude Scalia was entirely wrong about the rationale. So a reading of the opinion that would strike many as uncharitable probably just reflects the cutlural cognition worldview of liberal academics. (Okay, DHB, I'm mostly just poking fun-- but I really did wonder about that.)
1.11.2008 12:46pm
GV:
Orin, I still disagree with your reading of Scott and I'm not sure what you do with the quote I gave. But in any event, how can you only judge the danger Harris posed, but ignore the danger that Scott posed?

What if Scott had decided to bash Harris's car across three lanes of traffic, therby putting everyone at risk. Is that irrelevant to whether Scott was acting reasonably?
1.11.2008 12:58pm
Mr. Liberal:

Justice Scalia took the general reasonableness standard and crafted a rule for how it applies to high speed chases.


So, are saying that it is invalid to say that Justice Scalia choice of rule may have privilege a white conservative male perspective?

Should all we car about is whether a loaded rule is applied in a neutral manner, or should we be concerned that a concept "reasonablness" is being defined in this context to favor a particular perspective?

The more I think about it, the more I think you are completely wrong. There is absolutely nothing wrong with the study. There is something wrong with the standard your trying to hold it to.
1.11.2008 1:01pm
Connecticut Lawyer (mail):
Question 3 is purely a question of law and one that should not ever be put to a jury. Whether the suspect presented a risk of injury to others - that's a question of fact, except here no reasonable juror could find that there was no risk. But whether or not the risk of the chase outweighed the benefits of catching the suspect, that's purely a matter of law, and juries should have nothing to say about that.
1.11.2008 1:01pm
Adam J:
Connecticut Lawyer- interesting- how do you reach the conclusion that question 3 is purely a matter of law, when the risk and benefits of a chase are clearly so fact specific?
1.11.2008 1:15pm
hattio1:
A couple of comments.
First I just wanted to emphasize what another poster said. This is not the court making constitutional law. Scott v. Harris was a civil case, not a criminal one. Even if the court had gone the other way, it would not have "constitutionalized" a decision that officers are not allowed to chase.

Secondly, people are talking about ex ante and ex post. I think that needs to be broken down a little further. There's the "before" decisions to keep pursuing when the guy doesn't stop, the decision to keep pursuing when he hits 50, 60, 70, 80 etc. Apparently there was recently an 11 mile chase from a nearby town to my town. The whole thing was done at 45 in a 55 mile and hour zone (per rumor anyway). I don't think anyone would have a problem with the decision to continue to chase in that scenario. The problem is for the cop on the scene, these aren't clear decision points. He probably isn't watching his speedometer and saying okay do I keep chasing at 60..at 70...etc.

Whit, I stronly disagree with your characterization (and the pollsters) of liberals. But, even assuming you're right, if a significant portion of the population thinks that, doesn't that effect the "reasonable juror" standard?

Lastly, what I think this post, and the poll miss is that a jury is far more likely to be conservative white males. Most jurisdictions take the jury list from voting records. The older you are, the more likely to both vote, and be conservative. Whites are more likely to vote. And, the older you are the more likely you are not to have other committments that get you off the jury.
1.11.2008 1:15pm
whit:
"I am fine with saying that the drunk driver is responsible. As long as you recognize the bar is responsible too. "

except... as a libertarian i disagree. drunk =/= drunk DRIVING.

the person (imo) should be 100% responsible for choosing to drive drunk. 100%

i realize in our blame others society that's not the case. but it shoudl be imo
1.11.2008 1:15pm
whit:
"Does a bar not have a duty to ensure that those it profitable overserves with alcohol, have a means of arriving home or another safe destination in a way that is not likely to lead to the death of the customer or, more significantly, other innocent members of society? "

imo, no

it's really that simple. the DECISION TO DRIVE should rest solely with the actor. the person who chooses to drive. getting obliterated drunk should be a right (in my state, fwiw... it is. there are no public intoxication laws because the supreme court said they are unconstitutional)

there is a qualitative difference between BEING DRUNK (a right imo) and DRUNK DRIVING (a crime)

that's simply what i believe. it's a matter of liberty and personal responsibility. i realize that many, if not most, disagree. fine. i don't expect to be in accord with everyone - that's part of being libertarian.
1.11.2008 1:30pm
whit:
"As a police officer, if a hypothetical police officer leaves the back door of his patrol car unlocked with a known serial killer in the back who he has decided not to handcuff and left alone while he decided to get a donut, are you going to say he has no responsibility for the subsequent murders that occur simply because the serial killer is obviously evil? "

of course he has responsbility. the guy is in his custody. he IS responsible. a bar owner (or server) imo is not responsible for a person driving after drinking. it's a completely disanalogous situation. i don't believe the bar owner has a duty to protect society by NOT serving what people want because a guy MIGHT decide to break the law. completely disanalogous.

a cop has a duty to maintain control over his prisoner. i don't think bar patrons are prisoners, and the bar should not be responsible for anything they do after they walk out of the bar.
1.11.2008 1:36pm
John M. Perkins (mail):
And the decision to be killed by the drunk driver should rest solely with fool who chose to be in harm's way.
1.11.2008 1:36pm
Mr. Liberal:

except... as a libertarian i disagree. drunk =/= drunk DRIVING.


Right. Because bars do not inhabit the real world. When someone drives into their parking lot sober and drives out of it drunk, the bar shouldn't do anything to stop it.

This is a very irresponsible point of view.

The bar should take reasonable steps to monitor its customers, especially given the fact that the judgment of these customers is going to be predictably impaired.

Obviously, there are limits to the duty to monitor. If someone swears they live within walking distance, but in fact, their car is parked several blocks away out of site of the bar, then I wouldn't hold the bar responsible.

But, if someone who is obviously drunk gets in their car in the bar parking lot, in full view of the bouncer, then the bar should be held responsible.

The fact is, you frame the issue as a "blame others mentality."

But in reality, it is nothing more than a view that people should take responsibility to minimize the number of deaths and injuries resulting from one's profitable business.

If you do not agree with that, you are simply irresponsible. Period. Some people do not think they have an obligation to not obey the law. They wonder why people "blame" them for not obeying it. These people do not get any sympathy for me.

And when you let an obviously dangerous criminal escape from the back of your patrol car because your too busy getting a donut, I will be more than glad to take a "blame others" mentality and see your badge taken away.

I guess believing that people should take responsibility for the obvious and foreseeable consequences of their actions makes me a liberal. And believing that people should have no accountability for the obvious and foreseeable consequences of their actions makes you a libertarian.

As the minority, realize that if you try to implement your philosophy in a world where people like me make the rules, you will lose your badge. You have to take responsibility for the criminals you put in the back of your patrol car, even if you would rather have a donut.

And guess what, a lot of conservatives are going to be joining with me to make sure you lose your badge when you let a criminal go through your refusal to take responsibility for the obvious and foreseeable consequences of your actions.

I am not sure if I think that someone who thinks that bar owners should not also be responsible citizens should be a police officer.
1.11.2008 1:38pm
OrinKerr:
So, are saying that it is invalid to say that Justice Scalia choice of rule may have privilege a white conservative male perspective?

Not at all. Indeed, it is the concern that Justices will "privilege" ther views that leads me to be an adherent of judicial restraint. The Justices need to realize that not everyone looks at problems the way they do -- whether on the left or right -- and that there needs to be a lot of room for the people to make the law through the elected branches. I'm quite sure Justice Scalia agrees, although he would probably say that it doesn't "privilege" his views to let the people decide through legislative causes of action rather than through the constitution.
1.11.2008 1:38pm
whit:
" would be curious to know what proportion of people who don't pull over when a police car is behind them with its lights on are guilty of something more than just a traffic offense."

ime, usually they are. and my experience is pretty broad after 20 yrs of police work, and numerous NHTSA classes, detective investigations, etc. but... see below.

" To me it is inconceivable that I would not pull over if my only offense was speeding. Do people who run tend to be be "not just traffic offenders" and thus more worthy of chasing than "just traffic offenders"?"

there are a VERY small %age of people who are MERELY committing an infraction who don't pull over.

but there is a very large %age who will run MERELY because they have suspended license or some minor warrants.

imo, this is why it is logical not to pursue a speeder if that's "all ya got"

my agency has a relatively liberal pursuit policy. we can pursue for many crimes. officers are expected to take the totality of circ's into account, to continually provide conditions update to a supervisor over the radio. we also cannot be disciplined for ever choosing to terminate a pursuit. we don't need a reason to terminate. that's a good policy.

i have chosen to self-terminate probably about 1/2 the pursuits i got into. if i "light up" a speeder and he takes off, i would not pursue. imo, that's irresponsible. he MAY be a mass murderer, but i have no specific knowledge, and the risk outweighs the reward imo.

it is also against policy, too.

some agencies (usually very PC agencies) limit pursuit to only BARK felonies (burglary, arson, rape, kidnapping, murder, etc.).

*if* i was a criminal, i would research the publically available pursuit policies and only steal cars etc. in those cities. most criminals are idiots, so they don't do that.
1.11.2008 1:43pm
Mr. Liberal:

it's really that simple. the DECISION TO DRIVE should rest solely with the actor.


If a bar owner sees someone who is obviously drunk driving out of their parking lot, they don't have an obligation to call 911?

I guess in your view, they should feel free just to let people die. What a great lesson in "personal responsibility" that will be for the drunk.

Guess what, when that asshole drunk is serving time in prison for manslaughter, that isn't going to bring back a loved one killed in a car accident.

Some lessons in "personal responsibility" are just too expensive to innocent members of society to allow.

In reality, you really are all about avoiding "personal responsibility." You think that the "personal responsibility" of the bar owner should be eliminated by shifting it entirely to a drunk, who foreseeably will have impaired judgment and overconfidence in their driving ability.

Actually, all you are doing is making lame excuses for personal irresponsibility. Is this what being a libertarian means to you? Minimizing personal responsibility by shifting blame to one party?

Blame is not a fixed resource. We can hold both the bar owner and the drunk responsible. And you know what, I really have no problem throwing an irresponsible bar owner into jail for a month or so when a death occurs because he or she decided that it is A-okay for someone who is obviously drunk to drive right out of the bar parking lot.
1.11.2008 1:47pm
Ralph Phelan (mail):
What if Scott had decided to bash Harris's car across three lanes of traffic, therby putting everyone at risk. Is that irrelevant to whether Scott was acting reasonably?

I'd say something that didn't happen is irrelevant to the case at hand.
1.11.2008 1:47pm
whit:
"Right. Because bars do not inhabit the real world. When someone drives into their parking lot sober and drives out of it drunk, the bar shouldn't do anything to stop it. "

i didn't say that. if they SEE the guy doing this, of course they should. but they should not get into trouble for overserving. the DECISION to drive is the criminal's, not the bars. that's where the crime should be. if they happen to be in the parking lot - and they see it- of course they should TRY to stop the person. don't put words into my mouth.

"But in reality, it is nothing more than a view that people should take responsibility to minimize the number of deaths and injuries resulting from one's profitable business. "

of course they should. the point is criminal or civil responsibility. i think people SHOULD do all sorts of stuff. i don't think the law should be able to punish them for not doing that stuff. a million examples, but you get my point.

"If you do not agree with that, you are simply irresponsible. Period. Some people do not think they have an obligation to not obey the law. They wonder why people "blame" them for not obeying it. These people do not get any sympathy for me. "

no, i believe peopel are responsible for what they do. i think a bar should be able to (if they choose) serve people to the point of intoxication. i have no problem with bars given INCENTIVES to increase responsibility - designated driver programs, etc. i DO have a problem with bars being held responsible for what others choose to do.

and again, IF a bar owner or ANYBODY witnesses a person about to drive drunk, they should (morally) try to stop it.

that does not mean they should be legally responsible for that action imo

but again, i realize that espousing libertarian ideals among many people who make their living (or their compatriots do) from suing everybody and anybody to make $$$ for other's people crimes and misdeeds is probably a losing cause.

ime, liquor board agents are some of the worst statists i have ever met in law enforcement. the entire attitude disgusts me.
1.11.2008 1:49pm
Mr. Liberal:

Indeed, it is the concern that Justices will "privilege" ther views that leads me to be an adherent of judicial restraint.


Judicial restraint is an idea I can agree with. We don't need another Lochner.

On the other hand, I probably am not quite as concerned about judicial restraint as the typical Federalist Society member (some have tended to even get fanatical and self-righteous on this issue), even though it is likely my ox that is going to get gored with the current conservative court.

The fact is, that we do have the ability to check the Supreme Court and the judiciary through the electoral process. It is not quite the deadly threat to democracy that some would make it.

But that aside, restraint is a good thing.
1.11.2008 1:56pm
whit:
"If a bar owner sees someone who is obviously drunk driving out of their parking lot, they don't have an obligation to call 911? "

of course they do. i said they should not be PUNISHED for overserving. why do you put words in my mouth.

can you distinguish between these two concepts...

1) people ShOULD do X
2) just because people SHOULD do X, does not mean they should be criminally and/or civilly liable in many cases for not doing it.

i think bar owners should be free to serve people to the point of intoxication. because intoxicating oneself (imo) is a civil right. but if you choose to voluntarily intoxicate yourself, YOU are responsible for what YOU do. not anybody else.

period

i am a law and order guy. i support sobriety checkpoints, i support stiff penalties for drunk drivers, and i have repeatedly explained that driving is a PRIVILEGE not a right.

but i do not think we continue this "blame everybody but the criminal" culture.

again, the problem is NOT drunks, drunkenness, or intoxication. it is the people who CHOOSE to drive when intoxicated.

if a person CHOOSES to drive after CHOOSING to drink to intoxication, they are criminals.

if a bar owner or ANYBODY sees a person about to drunk drive, AT A MINIMUM they should call 911.

i think every bar should have a designated driver program. i think that if anybody sees a person starting their car drunk, they should at a minimum call 911. etc.

those are givens.

just like some people don't agree with throwing out the constitution even if it might help some bad people escape justice, i don't believe in punishing others for acts they did not commit and shouldnot be responsible for.

we need MUCH stiffer DUI laws and much more aggressive DUI enforcement. we do not need to punish bar owners, or people who run a party or whatever for what OTHERS do *****after***** they intoxicate themselves.
1.11.2008 1:58pm
whit:
"Actually, all you are doing is making lame excuses for personal irresponsibility. Is this what being a libertarian means to you? Minimizing personal responsibility by shifting blame to one party? "

lol. talk about disingenuous rhetoric. it is called holding the person responsible for what THEY do. nto holding others responsible for what OTHERs do

"Blame is not a fixed resource. We can hold both the bar owner and the drunk responsible."

i don't hold a bar responsible because a drunk DRIVER chose to leave the bar THEN decided to drive drunk.

" And you know what, I really have no problem throwing an irresponsible bar owner into jail for a month or so when a death occurs because he or she decided that it is A-okay for someone who is obviously drunk to drive right out of the bar parking lot."

except that's not what i said. what i said was that thye should not be punished for OVERSERVING because drunkenness is not the problem - drunk DRIVING is.

reading comprehension is pretty poor here.
1.11.2008 2:03pm
Mr. Liberal:

but again, i realize that espousing libertarian ideals among many people who make their living (or their compatriots do) from suing everybody and anybody to make $$$ for other's people crimes and misdeeds is probably a losing cause


Or who make their living prosecuting the criminals you are supposed to be catching.

The practice of law is an honorable calling, and I do not approve of your scurrilous attacks on the profession.

That aside, I think I have misinterpreted you, or as you say, "put words into your mouth." I simply had a different context in my mind than you did. This is an example of the problems that occur when having abstract discussions, since when people are speaking in very general terms, they may in fact have very different concrete situations in mind.

I agree that if a bar serves someone a lot of alcohol, they shouldn't be held responsible for all subsequent actions of that individual. And you agree that a bar has a responsibility to do something when a drunk drives out of their parking lot.

So, we agree on a lot.

I am sure we probably still have our disagreements, but they appear to be much more minor than I had thought originally. I think that a bar should be expected to take some reasonable proactive steps to ensure the safety of both customers and the general public. It is not okay to actively turn a blind eye.
1.11.2008 2:06pm
whit:
"Or who make their living prosecuting the criminals you are supposed to be catching.

The practice of law is an honorable calling, and I do not approve of your scurrilous attacks on the profession. "

lighten up, francis.

oh , and btw - SHAKESPEARE STARTED IT (probably not, but he's the most famous old skoool example).

blame him. if we're going to blame others and stuff it seems only "logical"

"I agree that if a bar serves someone a lot of alcohol, they shouldn't be held responsible for all subsequent actions of that individual. And you agree that a bar has a responsibility to do something when a drunk drives out of their parking lot. "

yes. i think ANYbody has the responsibily to call 911 at a minimum.

"I am sure we probably still have our disagreements, but they appear to be much more minor than I had thought originally. I think that a bar should be expected to take some reasonable proactive steps to ensure the safety of both customers and the general public. "

absolutely. what i disagreed with was the contention that because a bar "overserved" that they are subsequently responsible if the guy chose to drive drunk.
1.11.2008 2:18pm
GV:
Ralph wrote, "I'd say something that didn't happen is irrelevant to the case at hand." Anytime the court is laying down a broadly applicable test, it's going to (indeed, it must) consider the limits of the test. It seems that the test the court laid down in this case wouldn't take into consideration Harris's actions, no matter how irresponsible. That seems wrong -- i.e., the test seems wrong.
1.11.2008 3:08pm
gasman (mail):

While I agree that we should beware of ex post bias (when we know that something has gone wrong, we may overestimate our ability to see that it would go wrong ex ante), I think that people who do not want to take responsibility for their actions love to play the "ex post perspective/ex ante perspective distinction card."

With the video there is the possibility to avoid bias in either direction. Merely stop the video at the point just before the officer initiates the bump. Those viewing would not be told of the resulting outcome. To help mask things further other similar cases would be shown, some in which the ultimate outcome was benign, some in which death or mahem resulted. In each case they would be asked to identify whether they would wish their law enforcement personelle to escalate to an action that does sometimes result in serious injury or death to one or both parties.
With the video we can put people in the driver's seat and not worry about how outcomes might influence their judgement.
1.11.2008 3:34pm
hattio1:
Totally off topic

Question for you whit, out of sheer curiousity. You say

no, i believe peopel are responsible for what they do. i think a bar should be able to (if they choose) serve people to the point of intoxication. i have no problem with bars given INCENTIVES to increase responsibility - designated driver programs, etc. i DO have a problem with bars being held responsible for what others choose to do.


Does your opinion on whether the bar should be allowed to overserve if a jurisdiction has a "drunk on licensed premises" crime? The reason I ask is that in my jurisdiction it is illegal to be drunk on a licensed premises (IOW, be drunk in a bar).* The charge is basically filed anytime another charge is filed and it occurred in a bar, an assault, refusing to leave the premises, anything. But they almost never charge the bartender with overserving. It's always seemed that if we charge the guy for being too drunk in a bar, the bartender should be charged for overserving as well (presuming there's not evidence the person came there drunk). But what I actually think is both laws should be repealed.

*Interestingly enough, as a matter of statewide law, a bar or liquor store is the only place you can't be when drunk. There is no state law against drunk in public, though I think some cities have one.
1.11.2008 3:51pm
Aultimer:

whit:

i don't believe the bar owner has a duty to protect society by NOT serving what people want because a guy MIGHT decide to break the law.

i am a law and order guy. i support sobriety checkpoints, i support stiff penalties for drunk drivers

So, bartenders should suffer no liability for serving drunks (even though they do under current law) just because the drunk MIGHT hurt someone/thing.

But drivers should suffer liability (criminal liability at that) for driving with high BAC because they ... MIGHT hurt someone/thing.
1.11.2008 4:37pm
whit:
"So, bartenders should suffer no liability for serving drunks (even though they do under current law) just because the drunk MIGHT hurt someone/thing. "

correct. it is currently a CRIME (at least in my jurisdiction for a bartender to serve a drunk. thaT should not be so imo

"But drivers should suffer liability (criminal liability at that) for driving with high BAC because they ... MIGHT hurt someone/thing."

no. they should suffer liability because driving with a BAC >= .08 is, and should be a CRIME.

i have already outlined (see: NHTSA studies) why .08 is a reasonable level to criminalize. heck, i'd support .06.

the point is that drunkenness, being drunk, serving a drunk, being drunk in public should all be LEGAL activity. all but serving a drunk is in WA state (it's a constitutionally protected right in WA state to be drunk in public)

the legal becomes criminal when the person DECIDES to drive. the locus of control rests ENTIRELY with them. that's the crime.
1.11.2008 5:59pm
whit:
"Does your opinion on whether the bar should be allowed to overserve if a jurisdiction has a "drunk on licensed premises" crime?"

in that, i don't think there should BE such a crime. my jurisdiction also has such a crime, even though it's a complete farce in that 1/2 the people at any bar in pioneer square on a saturday night are violating it.

"The reason I ask is that in my jurisdiction it is illegal to be drunk on a licensed premises (IOW, be drunk in a bar).* The charge is basically filed anytime another charge is filed and it occurred in a bar, an assault, refusing to leave the premises, anything. But they almost never charge the bartender with overserving. It's always seemed that if we charge the guy for being too drunk in a bar, the bartender should be charged for overserving as well (presuming there's not evidence the person came there drunk). But what I actually think is both laws should be repealed."

we are in agreement. the idea that it's legal to be drunk everywhere BUT a bar is patently absurd, and anti-libertarian.

"*Interestingly enough, as a matter of statewide law, a bar or liquor store is the only place you can't be when drunk. There is no state law against drunk in public, though I think some cities have one."

cities can;'t have one in WA because our supremes said they can't.
1.11.2008 6:03pm
hattio1:
Whit says;

we are in agreement.

Dammit, you're no fun anymore.
1.11.2008 7:31pm
David M. Nieporent (www):
With the video there is the possibility to avoid bias in either direction. Merely stop the video at the point just before the officer initiates the bump.
Gasman has a good point here.

Some of the debate above is about the wisdom of high-speed chases, but regardless of one's views on that, that wasn't the issue before the Court. The only question before the Court was the reasonableness of the bump of the criminal's car to end the chase.
1.11.2008 11:50pm
Rich Rostrom (mail):
OrinKerr: The chase was "worth it", regardless of the injuries to Harris. Harris was a criminal, recklessly endangering the public. Furthermore, when police tried to stop him, he raised the stakes, greatly increasing the endangerment of the public, the police, and himself. Anyone who does that must be stopped, and as far as I am concerned, if the person is killed or crippled as a result, that's not a bug, it's a feature.

As to the study: the authors' conclusion looks like a rigged comparison. They set up these hypothetical "composite personalities": how? And the only ones they choose to feature are one rich white guy and two very predictable liberals. How about a few other composites? What would an elderly woman think? Or a "soccer mom" Or a redneck? Unless the authors can show that only Rich White Guys would make that judgement, their thesis is worthless.

It also seems pretty obvious that this study was designed from the beginning to attack Scalia and "White Privilege".
1.12.2008 1:17am
OrinKerr:
Rich,

I find your expressed views repellent, and I hope you do not actually mean them. As I understand your comment, you actually want a young man to die, simply because he was speeding 18 over the limit, and it turned out that when the police tried to pull him over he began to flee? Do you really mean that? What if it were your son, your brother? You would want him to die, seeing that as a benefit of the chase? I truly hope you do not actually mean that.
1.12.2008 11:59am
Lagos:
Here's a police chase that didn't end so well...

More than 30 people were killed after a car crashed into a fuel tanker, which exploded and burst into flames early Saturday in the oil-rich town of Port Harcourt in Nigeria, police said.

The driver was being chased by police and lost control of his vehicle, a police spokesman told CNN. He said terrorism was not suspected. Firefighters battled the fire for hours to bring it under control.

Most of the victims were believed to be street vendors and workers at the site of the tanker. There were no reports about injuries, but police said about 15 vehicles were destroyed.
1.12.2008 12:25pm
Dan Kahan (www):
Hi. Thanks to Orin for such a thoughtful &fair-minded response to our study. Our paper will benefit from his comments. For now, we've posted a reply here.
--Dan Kahan
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