When Police Officers Use Deadly Force, Can Judges Ever Be Trusted to Judge Them?

Posted on Categories Legal Scholarship, Speakers at Marquette, U.S. Supreme Court

That is the question that lurks behind a fascinating new paper by Dan Kahan, David Hoffman, and Donald Braman. The paper responds to Scott v. Harris, 127 S. Ct. 1769 (2007), in which the Supreme Court held that summary judgment was properly granted to a police officer in a ยง 1983 lawsuit challenging the officer’s decision to ram his police car into the car of a fleeing motorist. One of the paper’s authors, Dan Kahan (pictured at left), is visiting the Law School today to present the paper at a faculty workshop. (Dan will also be delivering the Boden Lecture here late this afternoon.) The paper begins by taking issue with a particular, case-specific assertion by the majority in Scott, but then opens up some much deeper questions about the roles of judge and jury in a culturally diverse democracy.

The majority in Scott relied on a videotape of the fleeing motorist, which purported to show that he was driving in such a dangerous manner as to justify the use of deadly force to stop him. The majority found the videotape sufficiently compelling that, in its view, no reasonable juror could find in favor of the motorist on his claim that the police officer had acted unreasonably in violation of the Fourth Amendment–thus, warranting a grant of summary judgment. Kahan and his coauthors, however, showed the same videotape to a diverse sample of 1,350 Americans, and found evidence of some disagreement with the majority’s view of the case. Thus, had the case been permitted to go to a jury, there is a statistically sound basis for expecting that one or more of the jurors would have had a considerably less positive view of the officer’s conduct than did the members of the Supreme Court.

There are, of course, contrarians in every group, and the possibility of a few idiosyncratic viewpoints does not, in itself, seem to demand attention in the resolution of a summary judgment motion. Rather, what gives Kahan’s critique its bite is his evidence that the people who would have favored the motorist in Scott were not a few random outliers, but members of a culturally distinct subcommunity. Borrowing the terminology of the late anthropologist Mary Douglas, Kahan characterizes this group as communitarian-egalitarian. As I read his data–survey participants were asked about their political affiliations–I think the group might have as easily been labeled liberal Democrats. In any event, Kahan posits that the members of this subcommunity are motivated by their social value commitments to be more skeptical of police actions, which helps to explain their generally more favorable view of the motorist’s claims in Scott.

Still, one might ask, why should the legal system take into account the tendency of a particular subcommunity to assimilate new evidence (the videotape) to a particular worldview–against all common sense to the contrary? But Kahan would take issue with the implication that there is a wholly neutral, common sense way of viewing the videotape. In his empirical study, it turns out that the pro-police position was taken most strongly by another distinct subcommunity, the hierarchical-individualists (basically, conservative Republicans). It seems that everyone is motivated to view the evidence in a manner that is congenial to their worldviews. In this setting, Kahan et al. argue, judges have no business dismissing one view of the evidence as unreasonable: this is a gratuitous insult to others whose views are held in no less good faith than those of the majority.

Kahan and his coauthors suggest that juries are superior to judges when it comes to evaluating evidence of the sort at issue in Scott, that is, evidence that tends to be viewed in predictably different ways by distinct subcommunities. Juries are preferable, not because they are better able to find that elusive neutral ground where there is some “truth” uncolored by political values, but because they lend a greater legitimacy to the whole truth-finding enterprise:

[Subcommunities whose views of the facts are rejected by the law] can be expected to see the law as theirs in the sense that morally warrants an expectation of assent only if the law arises from a process that shows due respect for their understanding of reality and hence for their identities. Jury factfinding is a procedural strategy of that sort. It assures that those who win a contest between competing understandings were obliged to listen–under circumstances geared toward maximizing the prospects of changes in, and convergences of, perspectives–to those who have lost. And in so doing, it enables the latter to assent without the experience of subjugation and domination that estranges them from the law.

There is a lot in this analysis that I find compelling. In my recent writing about the criminal justice system, I have become preoccupied by similar questions of legitimacy–How can defendants be led to see their punishment as in some sense just, rather than merely as an arbitrary exercise of power by the state? How can the minority communities that lose so many of their young men to prison come to see law enforcement in more positive terms? Kahan and his coauthors make a good case for the jury as an institution that may help to answer these questions.

That said, I think the paper may both overstate and understate the significance of the data it presents. First, the extent of the disagreement over how to view the evidence in Scott may be overstated, at least in some places in the paper. For instance, when asked to rate the relative culpability of the police and the motorist on a scale of one to five (five being all the motorist’s fault), the average answer of egalitarians was 4.05, and the average answer of hierarchs was 4.40. This is pretty much consistent with their differences in answering all of the questions on the survey. The differences may be statistically significant, but the data do not really paint a picture of starkly different views of the evidence and no hope of locating common ground.

Second, the paper may understate the frequency of cases in which such cultural clashes may affect the way evidence is viewed. Kahan et al. write, “Most–probably the overwhelming majority–of the cases that strike judges as presenting ‘no genuine issue as to any material dispute of fact’ will pass this test.” But no evidence is cited in support of this proposition. At the very least, it would seem that the underlying political dynamics at play in the Scott case would be present in any excessive force case. And, even more broadly, I could imagine similar dynamics in any case in which an individual sues the government or any large, powerful organization. In short, the reservations that Kahan et al. express regarding summary judgment may potentially apply to a very large number of cases.

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