This is my second post commenting on Dan Kahan’s talk last week about his paper, co-authored with David Hoffman and Donald Braman, entitled “Whose Eyes are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism.” (It was originally one post but got long.) Scott v. Harris is the case involving the video of the police chase, a video the Supreme Court found so compelling that it ruled the denial of summary judgement to the defendant police officer was error. Kahan and his co-authors argue that Scott harmed the legitimacy of the justice system when it concluded that all reasonable people would view the video tape the same way. In fact, Kahan et al. demonstrate that a significant number of potential jurors disagree with the majority’s view.

On Friday, I tangled with the article’s proposed solution to the problem of denying those jurors their day in court. Today, I want to examine the decision itself–did the majority really rule that no reasonable juror could conclude that the force used in the case was excessive? That’s actually not the way it looks to me. Rather, it looks to me like, after a preliminary finding about dangerousness, the Scott majority pretty much threw the whole fact vs. law distinction out the window. Scott doesn’t just insult “unreasonable” jurors; even reasonable jurors get short shrift.

Scott looks to me like a very troubling case in terms of preserving the traditional role of the jury–the trier of fact, that is–in making factual determinations. The theory, at least, is that summary judgement is only supposed to be granted when the relevant facts are so clear that trial would be a waste of time. The practice, of course, is a little different. In practice, summary judgement is often granted when the judge thinks that the trial would be a waste of time, whether or not all of the relevant facts are clear.

This impatience with the plaintiff’s claims is evident in Justice Scalia’s majority opinion in Scott. The opinion starts off badly for a review of a denial of summary judgement. It frames the key question to be answered as: “Can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders?” But of course, that wasn’t the question in the case at all. The question in Scott v. Harris was not whether it was possible to constitutionally terminate a chase by running someone off the road, but whether in all cases terminating a chase in that manner is constitutional. In other words, can the police ever be sued for running a fleeing speeder off the road? The 11th Circuit had answered the latter question “yes,” but Scalia’s opinion starts out by equating that to a holding that the police can never run any fleeing motorist off the road. The two issues are not at all the same.

Things go downhill from there. The majority quickly latched onto the significance of the videotape. At one level, the videotape is an example of a rather commonplace summary judgement phenomenon. While the non-moving party is entitled to all reasonable inferences in its favor, it doesn’t get unreasonable ones–for example, inferences that contradict the undisputed content of a document in the record. So, for example, a defendant can’t argue in opposition to summary judgement that she never signed the contract at issue, if there is a contract in evidence with her signature on it, and she doesn’t have some story about how it was forged or not the right contract. So in Scott, the plaintiff couldn’t argue that he didn’t in fact lead the police on a chase, or that he never ran any red lights, or collided with any police cars, or drove at a high rate of speed.

But the majority saw the video as far more significant than that. The majority believed that, after watching the video, “no reasonable jury” could conclude that Harris was not driving in such a fashion as to endanger human life. Maybe that’s true, although as Kahan and his co-authors show, there are plenty of viewers out there who disagree with that conclusion. But what’s particularly troubling about the Scott decision is that that conclusion–no reasonable juror could conclude Harris did not pose a danger to others–is the last time in the majority opinion that the “reasonable juror” appears. The other conclusions–that Harris was more at fault for the chase than the police, and that the use of deadly force to terminate the chase was reasonable–follow, according to the majority, as a matter of law. Scalia’s opinion, therefore, doesn’t hold that “no reasonable juror” would conclude that deadly force was justified. It held that jurors just don’t get to decide that question.

Justice Stevens, the lone dissenter in Scott, objected that the majority seemed to have “used its observation of the video as an excuse for replacing the rule of law with its ad hoc judgment,” and that criticism seems spot on. Stevens noted particularly that the court’s conclusion on the deadly force issue “is a question of fact best reserved for a jury.” The issue of who gets to decide such questions seems to me to be the key issue in the case, but Stevens doesn’t argue the point any further. Nor does the majority. Responding to Stevens, Scalia argues:

At the summary judgement stage, however, once we have determined the relevant set of facts and drawn all inferences in favor of the nonmoving party to the extent supportable by the record, . . . the reasonableness of Scott’s actions–or, in Justice Stevens’ parlance, “[w]hether [respondents’s] actions have risen to a level warranting deadly force”. . . –is a pure question of law.

That’s it. There’s no explanation of how Harris’s dangerousness determines the relative culpability question or the justifiability of lethal force, except for the majority’s intuition: “We have little difficulty in concluding it was reasonable for Scott to take the action that he did.” That’s nice, but isn’t that a jury’s job?

Right at the end, Scalia’s opinion provides the legal backstop for this apparent factfinding by the Supreme Court: the reason why the Court gets to make these seemingly factual determinations is that the Court is “lay[ing] down a more sensible rule: A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.” Therefore, once a factual determination has been made that the “lives of innocent bystanders” were threatened, the case can be dismissed.

But if that’s in fact the reasoning behind the majority opinion, then it’s written in an extremely weird way. The per se rule is not presented as the justification for granting summary judgement in this case; indeed, it’s hardly argued for at all. It comes as the coup de grace at the very end of the opinion, after all of the business about how, given the facts as the Supreme Court sees them, it has no trouble concluding Scott’s actions were reasonable. Who cares if they were reasonable, if there’s this per se rule? Or is it the per se rule that makes them reasonable? If so, then the discussion of relative culpability seems pointless.

The opinion to me gives every impression of being written in a vein of impatience with Harris’s argument–why should a fleeing speeder be allowed to sue the police? The per se rule at the end is just to make sure the Court never gets another case like this, not because it really underlies the court’s decision. But, as Justice Breyer points out, the Court has other ways of getting rid of Fourth Amendment claims for damages–namely, it could have held that Scott had qualified immunity. Constrained by its precedents to decide the constitutional question first, however, the Court achieved the same result by simply usurping the role of the jury.

Scott v. Harris is flawed, but not just because it insults the views of egalitarian communitarian jurors. Scott v. Harris is flawed because it insults juries as a whole.