Recent Developments
in the Court of Appeals
and the U.S. Supreme Court
DEADLY FORCE - HIGH SPEED PURSUIT
Lytle v. Bexar County, Tex., 560 F.3d 404, 414, 416 (5th Cir. 2009)
Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572 (5th Cir. 2009)
In Lytle v. Bexar County, Tex., 560 F.3d 404, 414, 416 (5th Cir. 2009) the court noted that “the Court’s decision in [Scott v. Harris] did not declare open season on suspects fleeing in motor vehicles,” and concluded that “a suspect that is fleeing in a motor vehicle is not so inherently dangerous that an officer’s use of deadly force is per se reasonable.” The court collected cases and conducted a careful analysis to conclude that a jury could find unreasonable an officer’s shooting at the rear of a fleeing vehicle four to five houses away in a residential area where no one was in immediate danger and the shooting itself created a risk. Judge Smith dissented from the decision by Judges Prado and Barksdale.
But in Pasco ex rel. Pasco v. Knoblauch, 566 F.3d 572 (5th Cir. 2009) the court found it objectively reasonable under Scott v. Harris for an officer to intentionally bump the suspect’s car off the road, causing his death, despite his supervisor’s order to terminate the high speed pursuit. The court reasoned there was a potential risk to the public of allowing the suspect to drive on, although it was early morning in a rural area and there were no other motorists at scene. Judge Garwood dissented from the decision by Judges Garza and Owen.
Such disagreements among judges about what is "objectively reasonable" demonstrate that these should be jury decisions (which is what the court held in Lytle), and that such cases should not be resolved by judges on summary judgment. If jurors reach inconsistent decisions in similar cases we can accept it as an inevitable consequence of jury trials and all the variables that are involved. But when judges purport to be making legal decisions such inconsistency is not acceptable. Unfortunately, due to qualified immunity, more and more cases do get resolved on summary judgement.
There is another point worth noting in Pasco. The court held that it was "constitutionally irrelevant" that the officer's supervisor had ordered him to terminate the pursuit and that the officer was acting in violation of his department's protocol. This is doctrinally incorrect. The department's protocol and the supervisor's order to terminate are certainly part of the "totality of the circumstances" under Graham and Garner that must be taken into account to determine constitutional reasonableness, even though disobeying the supervisor and violating the protocol do not in and of themselves constitute a constitutional violation.
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