SCOTUSblog By Mitchell Jagodinski 7/23/2021
PETITIONS OF THE WEEK
High-speed pursuit liability and other questions surrounding police activities
This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the proper standard of liability applied to police high-speed driving incidents, the relevance of training and law enforcement policies in qualified-immunity cases, and whether the First Amendment protects the right to record police officers carrying out their official duties in public spaces.
In 1998, the Supreme Court held that high-speed police chases resulting in death, due to “deliberate or reckless indifference to life,” do not violate substantive due process rights unless the officer intended to cause harm unrelated to the legitimate object of arrest. While the U.S. Courts of Appeals for the 8th and 9th Circuits follow a strict “intent-to-harm” standard in all cases involving police high-speed driving, courts in other circuits have opted for a more objective standard. The U.S. Courts of Appeals for the 3rd, 4th, 7th and 10th Circuits inquire into the specific circumstances of each case to determine whether the officer had an opportunity to deliberate and whether the emergency justified such driving – often applying a deliberate-indifference standard rather than intent-to-harm.
In Braun v. Burke, officer Brian Burke drove his cruiser for about five minutes at an average speed of over 90 mph, past 60 other vehicles, with no blue lights or siren engaged, before colliding with a bystander vehicle at 98 mph, killing both occupants. Burke claimed that he was seeking an SUV that he saw speeding earlier. But he did not claim to have been in “pursuit,” and according to Arkansas State Police policy, pursuit requires that “lighting equipment and siren shall be in operation throughout the pursuit.” Lori Braun sued in district court on behalf of Cassandra Braun, who was killed in the accident. But the district court dismissed – in reliance on the intent-to-harm standard – holding that no due process violation occurred because there was no evidence that the officer “intended” to harm anyone. The 8th Circuit affirmed, agreeing that the intent-to-harm standard was proper and declining to consider whether an objective emergency was present or whether actual deliberation occurred.
Next, in Frasier v. Evans, the court is presented with another question surrounding police liability and a First Amendment question involving the right to record officers. The city of Denver police are trained that members of the public have the “right to record them.” In 2014, Levi Frasier took out his tablet to record an altercation between police and a suspect, which resulted in the suspect being taken away in an ambulance. After the officers involved noticed Frasier recording the incident, they approached him and pressured him to hand over the device before searching through it for the footage.
More:
https://www.scotusblog.com/2021/07/high-speed-pursuit-liability-and-other-questions-surrounding-police-activities/
