Whose Eyes in Scott v. Harris? KHB Reply
posted by Donald Braman
Over on Volokh Conspiracy, Orin Kerr has posted a thoughtful and fair-minded response to our study of public interpretations of the Scott v. Harris video (previously blogged on Concurring Opinions here and here). Orin generously credits our empirical study with succeeding in making the “broad point [that we] want to make,” and that he says he himself “completely” accepts: that “videos can be construed in different ways,” that “it’s too easy for [people] to look at a video and see what [they] want to see,” and that as a result “[w]e”—presumably, including judges—“need to step outside of our preconceptions and be aware of how other people might construe the facts” revealed in such a medium. Nevertheless, Orin suggests that our study suffers from a “significant methodological error” because the study “ended up asking the survey respondents to apply the standards the authors suggested instead of the test the Supreme Court used.”
To keep the debate going, we’ll make three points to make in response:
1. We did ask the subjects to address, in a plain and straightforward way, the key factual predicate of the Court’s decision.
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”). In contrast, Justice Stevens, in dissent, repeatedly stated that he didn’t perceive such a risk. See id. at 1783 (“passing a slower vehicle on a two-lane road always involves some degree of swerving and is not especially dangerous if there are no cars coming from the opposite direction”); id. (“This is hardly the stuff of Hollywood. To the contrary, the video does not reveal any incidents that could even be remotely characterized as ‘close calls.’ ”).
As Orin notes, we asked our subjects to pick sides in this dispute by indicating their level of agreement or disagreement with two propositions: that “Harris drove in a manner thatput members of the public at great risk of death,” and that he “drove in a manner thatput the police at great risk of death.” Orin says he objects to “great risk,” even though it’s among the hodge podge of different phrases Scalia himself used. We chose that phrase because it struck us as a characterization of the necessary degree of heightened risk that would be familiar to, and likely understood in uniform ways by, ordinary people. One would have to impute to our subjects fairly strange motivations to twist normal language—to a degree that would make even a sophistic lawyer blush—to worry that those who shared Scalia’s view of the tape would think they should nevertheless report disagreement with him.
Indeed, as Orin observes, the vast majority of subjects, far from being steered away from Scalia’s position by this question wording, did report agreement with him on this point. Contrary to how Orin summarizes our position, then, we don’t mean to criticize the Court for “privileging a conservative white male view of the case.” Rather we take up the more subtle normative issue of whether, in a summary judgment setting, courts should ever send a case to a jury in order to assure that the majority considers the factual perceptions of an admitted minority, whose members nevertheless share a common set of identifying characteristics, experiences, and values.
2. We asked subjects additional questions because the Court’s analysis, and the apparent bright-line rule it settles on for evaluating deadly-force termination of high speed chases, turned on additional issues.
In addition to soliciting our subjects’ perceptions of the degree of risk, we also solicited their reactions to a number of additionalmatters, all of which were integral to Justice Scalia’s reasoning. Some of these related to what Justice Scalia called the “relative culpability” for the lethal risk associated with the chase (127 S. Ct. at 1778 & n. 10). Indeed, Justice Scalia found such weighting to be the fulcrum on which he decided the case: "So how does a court go about weighing the perhaps lesser probability of injuring or killing numerous bystanders against the perhaps larger probability of injuring or killing a single person? We think it appropriate in this process to take into account not only the number of lives at risk, but also their relative culpability." Because Justice Scalia, on the basis of the video and the background facts of the case, concluded that Harris, the fleeing driver, was entirely at fault, we asked our subjects to indicate agreement or disagreement with the statement that the decision to pursue Harris wasn’t worth the risk to the public, and also to apportion fault for risk between Harris and the police. We also asked our subjects to state their level of agreement or disagreement with the proposition (the outcome of the case, essentially) that use of deadly force to terminate the chase was warranted in light of the risk that Harris’s driving posed to the public and the police. As Orin notes, we found, again, that a majority took positions consistent with that of the Scott majority, although on these issues there was even sharper dissent among demographically and culturally defined groups.
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.
3. It’s Not Just About Scalia.
Orin says we “miss the mark” in our critique of Scalia. But we’d say that Orin misses, or at least characterizes too narrowly, the mark of our critique.
“Whose eyes” is a reference to a quip made by Justice Breyer, who, referring to the videotape in the oral argument, taunted Harris’s counsel by telling him that the lawyer that his characterization of the chase put Breyer in mind of “Chico Marx’s old question … ‘Who do you believe, me or your own eyes?’ ” In his concurring opinion, Justice Breyer, too, stated “the video footage of the car chase made a difference to my own view of the case” and invited “the interested reader [to] take advantage of the link in the Court’s opinion and watch it.” 127 S. Ct. at 1780. However, Justice Breyer also stated that he “disagree[d] with the Court insofar as it articulates a per se rule that permits police to use deadly force to terminate high-speed chases, id. On this point, he sided with Justice Ginsburg, who in her concurring opinion stated that decision in such cases should turn on a “situation specific” consideration of all the factors considered in the majority opinion, 127 S. Ct. at 1779.
Under the approach of Justices Breyer and Ginsburg, then, all the issues, including relative culpability and the balance of risks associated with conducting a high-speed chase of someone like Harris, would be issues of fact in a suit like this one. These two Justices, moreover, agreed with the Court that no “reasonable juror” who viewed the videotape could decide these facts for the plaintiff. Accordingly, all of the questions we asked our subjects are relevant to assessing the grounds for Justice Breyer’s and Justice Ginsburg’s confidence that no “reasonable juror” could have seen something different from what they saw in the tape. Based on the data and arguments we present in the paper, we’d say that they are guilty of failing to do exactly what Orin agrees we all should do in a case like Scott: “step outside of our preconceptions and be aware of how other people might construe the facts.”
Actually, we have one final point to make.
Orin amusingly speculated in responses to one of the comments on his post that maybe the “cultural cognition worldview of liberal academics” had motivated us to take the position we do in our paper. Again, the paper acknowledges that most of our subjects agreed with the Court majority on all the dispositive issues, as well as with the outcome. Although we argue that the Court shouldn’t have decided the case on the ground that “no reasonable” jury could disagree with its own perceptions of the risks of the chase, we recognize in the paper that this is a complicated question and others could construe our own data to support a different conclusion (as we take it Orin does). Indeed, one of us (Kahan) fervently believes the case was correctly decided, and in fact filed an amicus brief on behalf of states and municipalities urging reversal.
All this said, we don’t resent Orin reminding us (particularly given how good-natured he was about it) to think hard about how our own cultural predispositions might have influenced us. We just hope, too, that the various readers of Volokh Conspiracy who immediately posted comments attacking our study and our motives will do the same as they actually take the time to read and reflect on our paper!
Of course, Concurring Opinions readers don’t need any reminding, as critical self-reflection just comes naturally to them.