More on Scott v. Harris: A Reply to Kahan, Hoffman, and Braman:
A few weeks ago, I was debating the very interesting Kahan/Hoffman/Braman article on Scott v. Harris here at the blog. First, I wrote up a critique of the article; then, KHB wrote up a response. I never finished my reply; I wrote half of it, but left that half unposted. Last week I ran into Don during a faculty event and I mentioned this to him, and he expressed interest in hearing more. In that spirit, here are my better-late-than-never (I hope!) reactions to KHB's response.

  I want to focus on two arguments that KHB make in their response. The first is that the Supreme Court did characterize the car chase in lots of different ways, which then provides KHB with many different ways of testing people to see if they disagree with the Court's view of the facts:
Using various, diverse formulations, Justice Scalia emphasized over and over that summary judgment was warranted because the tape revealed that Harris's driving posed a high degree of risk—more certainly, than is present whenever one happens to drive a car at a high speed down the highway—to the lives of others. See, e.g., 127 S. Ct. at 1775-76 ("the video . . . closely resembles a Hollywood-style car chase of the most frightening sort, placing police officers and innocent bystanders alike at great risk of serious injury"); id. at 1778 ("it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians ..., to other civilian motorists, and the other officers"); id. at 1779 ("The car chase that respondent initiated in this case posed a substantial and immediate risk of physical injury to others; no reasonable jury could conclude otherwise").
As I understand KHB, the diversity of statements that the Court makes justifies assessing the sample's view of whether they agree on these different variables suggested by the Court's opinion.

  I look at this differently. True, Justice Scalia says a lot of things about the car chase that go beyond applying the facts to the law. But what's the relevance of these statements? I doubt they have any. As we know, Justice Scalia can be prone to exaggeration. Given that, I read the various claims that Scalia makes about the car chase as just Nino being Nino. Saying the car chase is dangerous couldn't be enough for Scalia; he would have to say it was "a Hollywood-style car chase of the most frightening sort." I don't see this as "the Court's" conclusion, but rather as the reflection of the writing style of one particular Justice. (This is just speculation, but I wouldn't be terribly surprised to learn someday that Scalia's first draft was more over-the-top, and that some of the other Justices joined only if Scalia took out some of the more extreme statements.) As I see it, what really matters is the legal line the Court drew and the Court's decision that this case fell on one side of the line. Assessing whether members of the public agree with Scalia's colorful characterizations is interesting, but I'm not sure it sheds a lot of light on the substance of the Court's decision in Scott v. Harris.

  The second point KHB make is that asking participants to comment on the reasonableness and relative culpability of Scott's conduct helps tell us whether the Justices properly applied the Fourth Amendment:
It's true, as Orin notes and as we discuss in the paper, that these issues wouldn't be submitted to a jury under the apparent, bright-line rule that Justice Scalia announced: "A police officer's attempt to terminate a dangerous high-speed 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." 127 S. Ct. at 1779. But Justice Scalia's justification for such a rule was that there was only one reasonable way to assess the balance of risks in a case like Scott. We wanted to find out whether ordinary people—whose judgments presumably are part of the reasonableness calculus—would agree. Our finding that in fact members of diverse subcommunities balance the risks differently (from one another and from the Court majority) raises the normative question whether the Court should have formulated a test that bars a jury from considering this matter.

Rather than ask these additional questions, we could, of course, have asked our respondents merely to "decide" Scott based on "the test the Supreme Court used," as Orin urges. But since we were interested in facilitating an evaluation of whether that test is a good one (the usual ambition of scholarly commentary on legal doctrine), doing that wouldn't have advanced our aims. We also think a survey limited to that issue wouldn't have yielded results nearly as interesting and rich as the ones we obtained.
  That's an interesting response, but it's really about KHB's substantive vision of the Fourth Amendment — A substantive vision that the Supreme Court has not endorsed, and that I think would pretty dramatically transform the Fourth Amendment if it were adopted. The vision seems to be of a Fourth Amendment as reflection of popular will, as a command for the police to act as the people would want them to act. If everyday people would balance the risks a particular way, the thinking goes, then the Justices should try to balance it that way too — of if they can't do it, they should get out of the way and let juries do this. In effect, this approach uses juries in lieu of legislation. It seeks to have juries evaluate police conduct and reflect the will of the people through their judgments.

  This certainly is an interesting approach, but I think it's quite different from the approach of the modern Fourth Amendment. The modern Fourth Amendment is premised on judges and Justices imposing rules on the police; the courts set the rules, not the people. Indeed, juries almost never play a role in the Fourth Amendment. Most Fourth Amendment issues come up in the setting of motions to suppress that are decided by judges. True, the doctrine often relies on concepts such as "reasonableness," but it is reasonableness as measured by the judges not by the public. In that way, the judges create a set of rules that the police must follow in criminal investigations.

  Now, maybe the Fourth Amendment we have is problematic; perhaps the Fourth Amendment should be overhauled. Perhaps we should have a more people-focused set of rules — either through more civil actions and jury trials or more reliance on legislation — than the judge-focused rules we have now. But that argument seems pretty distinct from the "cultural cognition" concerns that I had understood to be the point of KHB's paper. I sense that there is a mixing of arguments in the paper that needs to be more clearly separated: There's one argument about the need for self-awareness in construing evidence, and another argument about a new substantive vision of what the Fourth Amendment should become. The two are different, and I tend to think that the paper too readily treats the latter as a sort of subset of the former.

  Finally, to the extent the paper reflects an interest in increasing the amount of jury participation in Fourth Amendment cases, I think it's very important to consider the role of qualified immunity doctrine. Consider how these cases play out. Fourth Amendment civil cases pretty much always litigate the merits and qualified immunity together. The plaintiff brings a Fourth Amendment claim, and the defendant asserts the qualified immunity defense and then moves for summary judgment. Under Saucier v. Katz, the court has to accept the allegations of the plaintiff as true and first resolve the Fourth Amendment issue. If the court finds that the alleged facts would amount to a Fourth Amendment violation, it then needs to decide if the issue was close or really very obvious. If the issue was close, qualified immunity kicks in, the suit is dismissed, and the case never gets to a jury. Cases only go to a jury if the alleged facts very clearly involved a Fourth Amendment violation. The case then goes to trial to see if the plaintiffs can prove those alleged facts.

  Unless I'm mistaken, KHB do not discuss qualified immunity beyond their discussion of the facts in Scott v. Harris. But I think the qualified immunity doctrine already blocks Fourth Amendment civil cases from playing the role that KHB want the Fourth Amendment to play (and that they criticize the Court for interrupting). To oversimplify, qualified immunity keeps Fourth Amendment issues away from juries unless it is pretty clear that the police violated the plaintiff's rights. Not only does this sharply limit the jury's role, but it also means that the jury's role hinges on the clarity of Fourth Amendment law. The jury only gets to play a role if the courts have clearly settled the law, making the rights violated "clearly established." To the extent that KHB want juries to have a role in establishing the law, qualified immunity prevents this from happening: juries don't even get the cases unless the law has been established clearly first by the courts.

  In my view, the current role of qualified immunity doctrine reiterates my sense that there is a lot of normative Fourth Amendment theorizing going on in KHB's paper that needs to be more clearly acknowledged. For the jury to play the role that KHB want — or at least, that I think they want, to the extent I understand their aims correctly — I would think that modern qualified immunity law would need to substantially reworked for the vision to work. Whether you think this is a good idea or a bad one, at this point we're talking about a lot more than how to construe a videotape.

  Anyway, those are my thoughts. It's always hard to return to half-written comments and to try to finish them in a coherent way, so I hope the comments made at least some sense.
John Herbison (mail):
I have always found it odd that critics of "judicial activism" do not cite the "qualified immunity" doctrine as an example of legislating from the bench. The text of 42 U.S.C. § 1983 nowhere mentions immunity of any kind. Harlow v. Fitzgerald, 457 U.S. 800 (1982), and its progeny are cut from whole cloth.
2.23.2008 6:21pm

But see Federalist 81:
It is inherent in the nature of sovereignty not to be amenable to the suit of an individual WITHOUT ITS CONSENT. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States[.]
And then there's the question of whether the Court was cutting from whole cloth of its own when it created the modern 1983 action (in Monroe v. Pape, 365 U.S. 167 (1961) (Douglas, J.), I believe).
2.23.2008 6:37pm
John Herbison (mail):
Section 1983 does not authorize suits against sovereigns--neither the federal government nor any state is suable thereunder. Municipal corporations, being "persons" in legal parlance and being creatures of state law, are sometimes suable, but only where the act of the municipality itself--in the form of policy or custom--creates the deprivation of federal rights.

Of course, municipal liability is a separate question from immunity, in that neither absolute nor qualified immunity applies to municipalities.
2.23.2008 8:26pm

Ah, good point. Although I suppose it's still subject to the objection about Monroe v. Pape; I'd be interested in whether you think that decision and Bivens (for federal officials) were more or less activist than the qualified immunity decisions. That's not to defend the QI doctrines, I should add, but rather to suggest that it may be turtles all the way down.
2.23.2008 8:41pm
John Herbison (mail):
I do not view Monroe v. Pape as an activist decision. The purpose of the Civil Rights Act of 1871 was to provide a federal remedy where state officials, or those acting under the auspices of state law, (which then included vigilantes and lynch mobs,) failed to protect citizens' federal rights. The result and reasoning of Monroe v. Pape is consistent with that legislative purpose (except to the extent that municipalities were exempted from liability, a portion of the ruling that was later abrogated/modified in Monell v. New York Department of Social Services, 436 U.S. 658 (1978)).

I note that Monroe v. Pape, a Fourth Amendment case, was decided during the same term of court that Mapp v. Ohio, 367 U.S. 643 (1961), extended the exclusionary rule to state court criminal proceedings. The expansion of federal civil liability thus coincided with the federalization of many aspects of criminal procedure.

Even though it dealt with the absence of a Congressional statute authorizing litigtion, Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), can fairly be described as activist (even though, IMHO, decided correctly).
2.23.2008 11:15pm
Dave Hardy (mail) (www):
If a guy is driving wildly and refuses to pull over, I doubt the average driving juror is going to have much sympathy, beyond a general belief that it really would be nice not to kill him. If he was wild enough to pur others at risk, however slightly, I think the average juror would figure use of lethal force is in order. In either event, they'd figure whatever happened was upon his own head. I tend to the civil libertarian end of things, and I'd sure think that way. He had plenty of warning and chance to pull over.

Perhaps you could pick discrete social groups that might reject this -- but you could also find discrete social groups that believe police can never err. Summary judgment is about more than the possibility that I could hand-pick a jury that might disagree.
2.23.2008 11:22pm
traffic law (mail):
It is worth noting that Justice Scalia has expressly justified his attitude toward qualified immunity in his believe that Monroe v. Pape was wrong:

"The § 1983 that the Court created in 1961 bears scant resemblance to what Congress enacted almost a century earlier. I refer, of course, to the holding of Monroe v. Pape, which converted an 1871 statute covering constitutional violations committed "under color of any statute, ordinance, regulation, custom, or usage of any State," into a statute covering constitutional violations committed without the authority of any statute, ordinance, regulation, custom, or usage of any State, and indeed even constitutional violations committed in stark violation of state civil or criminal law. See Monroe (FRANKFURTER, J., dissenting). . . . Monroe changed a statute that had generated only 21 cases in the first 50 years of its existence into one that pours into the federal courts tens of thousands of suits each year, and engages this Court in a losing struggle to prevent the Constitution from degenerating into a general tort law. (The present suit, involving the constitutional violation of misdirecting a package, is a good enough example.) Applying normal common-law rules to the statute that Monroe created would carry us further and further from what any sane Congress could have enacted. We find ourselves engaged, therefore, in the essentially legislative activity of crafting a sensible scheme of qualified immunities for the statute we have invented -- rather than applying the common law embodied in the statute that Congress wrote."

Crawford-El v. Britton, 523 U.S. 574, 611-12 (1998) (Scalia, J., dissenting)
2.24.2008 12:15am
John Herbison (mail):
I suppose that, in Justice Scalia's view, legislating from the bench is a bad thing, except when it isn't.
2.24.2008 2:35am
Anon GW 2L:
Prof Kerr.,

Don't worry about the tardiness of the reply. Some of us understand the time demands of theater &drama. Your performance last night was quite well done, though you should expect requests for sandwiches in class this week.
2.24.2008 9:55am
Another Kevin (mail):
"Legislating from the bench" is always code for "a decision that I don't agree with." Given the principle of stare decisis, any decision, any interpretation of the law, has the force of "legislating." Not only is there no bright line separating "legislating" from "interpreting;" there is no line at all other than the politics of the speaker.
2.24.2008 2:52pm
Another Kevin,

I disagree strongly with all three of your sentences.
2.24.2008 3:06pm