Transcript

IN THE SUPREME COURT OF THE UNITED STATES

COUNTY OF SACRAMENTO, ET AL., Petitioners v. TERI LEWIS AND THOMAS LEWIS, PERSONAL REPRESENTATIVES OF THE ESTATE OF PHILIP LEWIS, DECEASED

No. 96-1337

December 9, 1997

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:10 a.m.

APPEARANCES:

TERENCE J. CASSIDY, ESQ., Sacramento, California; on behalf of the Petitioners.

PAUL J. HEDLUND, ESQ., Los Angeles, California; on behalf of the Respondents.

PROCEEDINGS

10:10 a.m.

CHIEF JUSTICE REHNQUIST: We'll hear argument now in Number 96-1337, the County of Sacramento v. Teri Lewis and Thomas Lewis.

Mr. Cassidy.

ORAL ARGUMENT OF TERENCE J. CASSIDY ON BEHALF OF THE PETITIONERS

MR. CASSIDY: Mr. Chief Justice, and may it please the Court:

Deputy Smith is entitled to qualified immunity in this case on the grounds that the law regarding substantive due process claims under the Fourteenth Amendment was not clearly established at the time of the police pursuit in this case in May of 1990.

In that regard, the legal standard was not sufficiently well-developed, nor were the factual contours of such a claim developed so as to put a reasonable officer in the position of Deputy Smith on notice of what type of conduct would constitute a violation of substantive due process in the context of a police pursuit.

QUESTION: May I ask you a question right at the start, please, Mr. Cassidy? The County of Sacramento apparently takes the position that a substantive due process violation does arise from a negligently conducted police chase of someone.

I mean, you don't raise the question whether there is a substantive due process violation at all. You apparently assume there is, and then just want us to decide what standard to apply. Do I understand correctly that's your position on behalf of the county?

MR. CASSIDY: Justice O'Connor, no, we do not concede that a negligent claim would support a violation of substantive due process. In fact, we have--

QUESTION: Well, do you concede that on the facts in this case, the police pursuit case before us, that the only inquiry is what standard to apply, because there would be a substantive due process violation?

MR. CASSIDY: The petitioners in this case have asserted that the proper question presented is whether or not--what--the proper legal standard to be applied in a claim for substantive due process. There are amici briefs which have asserted that no claim lies in this case because of the accidental nature of the conduct involved.

QUESTION: But that's not the position taken by the county.

MR. CASSIDY: Upon reflection, I would agree with that position as asserted by amici. However, it had not been asserted in the lower court or by us in our briefing.

QUESTION: So what am I supposed to do? I mean, you give me two options, that it's a substantive due process violation if it's--if it shocks the conscience, or if it's grossly negligent conduct. What if I think none of the above?

MR. CASSIDY: Justice Scalia--

QUESTION: Do I pick grossly negligent conduct because that's the closest to not having a substantive due process violation at all?

MR. CASSIDY: Well, no, Your Honor. We would respectfully submit that in the event this Court determines to adopt the type of approach it did in Albright v. Oliver and determine that all claims perhaps involving a seizure fall within the Fourth Amendment standards, then there would be no claim available under the Fourteenth Amendment.

QUESTION: Well, I certainly thought that's what this case was about when I first read about its facts. I mean, we've had a number of cases involving police chases and they always come up as unreasonable seizure cases.

MR. CASSIDY: And I would--

QUESTION: Lo and behold, I read this thing and it's somehow a substantive due process violation put in a whole different category of constitutional analysis, and the city just goes along with that. Is there any case on record in which somebody has asserted that something like this--a court has held that something of this sort is a substantive due process violation?

MR. CASSIDY: I believe that the courts of appeal have analyzed the case law involving police pursuits under substantive due process violations, or alleged violations, but if this Court then looks--

QUESTION: Certainly nothing in this Court has.

MR. CASSIDY: Correct, and if this Court were to look at the recent Mays opinion out of the Seventh Circuit, perhaps, and upon reflection by petitioners we would submit that that may be the correct analysis.

If only the Fourth Amendment were to apply in this case, then there would be no violation because, in fact, the means that were used to--or were involved in this accident were not intentionally applied, so there was no seizure.

So if this Court is left to analyze it under the Albright analysis, then there would be no violation. Petitioner would prevail.

QUESTION: I certainly--you know, you cannot expand the First Amendment, for example, by saying, well, this doesn't violate any of our First Amendment law, however, we think this was a deprivation of liberty under the Due Process Clause, apart from the First Amendment. We wouldn't hear something like that.

MR. CASSIDY: That's correct, Your Honor.

QUESTION: Why should we do it for the Fourth?

MR. CASSIDY: Upon reflection, petitioners would submit that it should not be so expanded, and that perhaps the analysis by this Court in DeShaney v. Winnebago is the correct analysis, that in fact, if this Court were to allow the claim for substantive due process to go forward, it would substantially disrupt the political process.

As this Court's noted in DeShaney as well as in the recent Collins decision and the Washington v. Glucksberg, the political process is extremely important to allow the States to develop the appropriate law.

QUESTION: But could you not have a high speed chase that wouldn't involve the Fourth Amendment? For example, think back to the days of the Freedom Riders. Suppose there had been State police involved in just following these people on the road to terrorize them for mile after mile, not for the purpose of seizing them for arrest, but to frighten them. Couldn't that be an appropriate situation for a due process rather than a Fourth Amendment approach?

MR. CASSIDY: Justice Ginsburg, although that specific type of circumstance has not been decided by this Court, the Fifth Circuit in the Checki v. Webb case did take that approach, and therein lies the basis for the analysis that potentially there could be such a claim.

However, I think that what that demonstrates is the fact that in the context of qualified immunity Deputy Smith could not have known, as a reasonable officer in the field, what type of standards should be applied not only at the present time but back in May of 1990, when this pursuit occurred.

QUESTION: Well, do you--if we assume for the sake of argument that this is properly a substantive due process case and not a Fourth Amendment case, are we supposed to take the case on the assumption that on at least one of the two alternative standards that has been proposed here there is a substantive due process violation? That seems to be the assumption of the State's position, but I may be wrong.

MR. CASSIDY: No. I believe there was no violation of substantive due process, regardless of which standard may be adopted by this Court.

QUESTION: So it's not merely a question of, he didn't know which. We may assume that in fact it would be findable today that there is no substantive due process violation, even assuming that this is a substantive due process case.

MR. CASSIDY: Well, 1), if you assume--

QUESTION: Because usually we don't get wrapped around problems of qualified immunity unless we are at least assuming that now there's a violation, so that's why I want to know whether you are conceding that now, on at least one of these standards, there would be a substantive due process violation.

MR. CASSIDY: No, we are not. If the Court determines to reach the issue and make a determination as to what the proper legal standard is, petitioners do not concede, under either standard that has been posited, that in fact there may have been a violation.

QUESTION: I suppose you take the position that there was--a) there was no violation, but b) if you should find a violation, there was nonetheless qualified immunity.

MR. CASSIDY: That's correct.

QUESTION: Why wasn't this case disposed of on the basis of qualified immunity? I think our cases have said that the courts should make that inquiry first before they move on to decide the constitutional questions, and even if this is a substantive due process violation, it's surely a brand new one, isn't it?

MR. CASSIDY: Well, in fact, Justice Scalia, petitioners would heartily agree, and in fact the district court did dispose of this matter on behalf of Deputy Smith with respect to the qualified immunity issue, and we believe correctly did so.

We believe that the Ninth Circuit's analysis rejects this Court's prior teachings in Harlow and Malley v. Briggs and determines that, under this very gray area of conduct that is sufficiently egregious, that somehow an officer, in the context of the rubric of the Fourteenth Amendment, should have known that his conduct may violate a constitutional right, and we believe that this case should have been disposed of on qualified immunity grounds.

In fact, in the recent Linear case, which analogizes to the qualified immunity context, this Court specifically pointed out that when the case law leaves open the general rule to be applied, then it's necessary that there be a very high degree of factual particularity in order to overcome that immunity.

In the context of a police pursuit that occurred in May of 1990, no such factual particularity was present. There were several cases that had analyzed this issue. However, in those cases, excepting the Checki v. Webb case, there were no violations found, and only in Checki was there some suggestion there may have been a violation.

But circumstances in that case law had involved excessive speeds, traveling too closely, failing to activate lights and sirens, failing to call in by radio, alleged violations of departmental policies, alleged violations of State law, all of which had resulted in a finding of no liability, so certainly the factual contours were not sufficiently developed in May of 1990 to provide and put a reasonable officer on notice that he could be held liable.

But in the Malley case, this Court points out that, specifically, if reasonable officers could disagree as to whether there may have been a violation, then the immunity applies, and petitioners respectfully submit that in fact that's exactly what occurred in this case.

Reasonable officers could certainly disagree as to whether there was some potential for liability in May of 1990 arising out of the facts and circumstances of this case and the context of alleged violation of substantive due process, and on that basis petitioners respectfully request that this Court find that there was qualified immunity that Deputy Smith is entitled to, and therefore petitioners prevail.

If this Court proceeds to analyze what the proper legal standard is with respect to an alleged violation of substantive due process, then petitioners respectfully submit that the standard should be one that is either arbitrary or shocks the conscience.

In that regard, I think it's important to look at the policy considerations which may be affected. Specifically, there should be deference given to the political process and the nature of the interests involved in the type of case in the circumstance or in the context of a police pursuit.

There's also the impact--

QUESTION: May I ask, on the political process, is it correct that in California the officers are immune for this kind of conduct, even if it's--no matter how gross?

MR. CASSIDY: You are correct, Justice Stevens, in that the individual officer is immune. However, the entity may be held liable under appropriate circumstances.

QUESTION: In other words, the city might be held liable.

MR. CASSIDY: Correct.

QUESTION: On a respondeat superior type of approach, or--

MR. CASSIDY: That's correct. However, they leave the individual officer out of the context of that civil liability, and there is a specific statutory scheme which has been adopted by California that not only allows for the potential for a municipality to be liable in the context of a Code 3 emergent vehicle operation, but also specifically the legislature has adopted a statute that encourages departments in California to adopt an appropriate police or law enforcement agency policy regarding pursuits so as to potentially avoid liability if the accident results from the vehicle operated by the suspect.

QUESTION: Now, in this case did the plaintiff sue the county, too?

MR. CASSIDY: Yes.

QUESTION: On State law grounds?

MR. CASSIDY: Correct.

QUESTION: Yes.

MR. CASSIDY: And a portion of that was dismissed at the district court level and a portion of that was reserved, specifically whether or not the county of Sacramento would be immune from liability under the vehicle code section that provides for the adoption of an appropriate pursuit policy as well as the issue of whether or not it was an accident that resulted from the operation of the suspect's vehicle in this case.

I think that if the less stringent standard is adopted by the Court in this case, then it will effectively remove this type of claim from the political process. This type of claim is appropriate to be resolved by the States in adopting their State tort laws.

Specifically, the persons directly affected, whether it be the--in the category of suspects or in the category of innocent bystanders, it is clear that the States and those bystanders, being the very electorate that affect the laws of the State, should have a say in whether or not there should be recovery.

QUESTION: Well, of course, we don't ordinarily say that if there's--when we're trying to interpret a provision of the Constitution that the public ought to have some input on it. I mean, certainly we hear argument and we try to figure out what those who adopted that provision may mean, but we don't generally say that, let's hear what the people have to say about it.

MR. CASSIDY: But indirectly, Mr. Chief Justice, we do that through our State legislatures, and that is precisely what this Court has looked to to see whether or not States would adopt and should adopt appropriate laws to govern these types of situations, and that's what the Court referred to in Collins, directing to leave this to the area of the local representatives, rather than an interpretation of the charter of the Government for this entire country. Then it becomes a judicial interpretation as opposed to a political interpretation.

QUESTION: But I think Collins first evaluated whether or not there was a substantive due process violation and said no, and said, therefore this is left to the political process.

I mean, I think you first have to do your reasoning on the constitutional point, then the result may be that it's left to the political process.

MR. CASSIDY: I understood that was the analysis in the Collins case. However, we would respect that there should be some deference given to the State political process as explored in the DeShaney decision, because that is important to determine whether this Court will expand its interpretation of claims for substantive violations of due process.

QUESTION: Well, we do it if we first conclude that it is not arbitrary, that whatever the State action was that caused the injury was not arbitrary in the sense of just being beyond the realm of reason as something the State might choose to do, or a governmental actor might choose to do.

Is it your argument here--I take it ultimately it is--that you simply cannot say that a high speed chase, assuming there is cause to apprehend in the first place, is so totally beyond the realm of reasonable conduct addressing a legitimate governmental object as ever to fall within that arbitrary character. Is that your position?

MR. CASSIDY: Well, I believe that the initiation and continuing of high speed pursuits are not arbitrary, at least in most circumstances.

QUESTION: They may be unwise, but they are not, as it were, so totally beyond the realm of reason as to rise to the level of a substantive due process violation.

MR. CASSIDY: I believe that's correct. There is a rational purpose, more often than not, I think, in the substantial number of police pursuits that allow for those pursuits to take place.

QUESTION: Now, how do you distinguish those--and I--I know I'm mixing apples and oranges here, but how do you distinguish those, your position there from the analysis that occurs in an unreasonable force situation under the Fourth Amendment?

Why is--why can we not say, let's say in unreasonable force cases that, sure, the force is always directed to the consummation of a legitimate governmental object, which is the apprehension of the suspect, or the person for whom there is a warrant. Why don't we in effect dismiss all of those cases on the same analysis?

MR. CASSIDY: Well, because I believe that, in terms of the Bill of Rights and specifically the Fourth Amendment, that those are directed toward guaranteeing certain minimal levels of safety, whereas the Fourteenth Amendment is essentially the residual provision. It's a limitation on State powers as opposed to the guarantees that would fall within the Fourth Amendment, and--

QUESTION: But would it be fair to say that the force cases are all cases in which there can be, or could have been, or was an apprehension in the first place, and it's clear that by no stretch of the imagination was the force necessary to accomplish the object? Would that be a fair characterization?

MR. CASSIDY: Well, that would be true, Your Honor--

QUESTION: And in this case it isn't correct to say that by no stretch of the imagination the speed was unnecessary to catch the person. Is that the distinction?

MR. CASSIDY: Well, that is true, and that we are still in the realm potentially of the show of authority, as opposed to the actual means put in motion to cause the apprehension.

QUESTION: Well, Mr. Cassidy, doesn't the Fourth Amendment itself speak in terms of unreasonableness?

MR. CASSIDY: Correct, Your Honor.

QUESTION: So that that would supply the standard for the Fourth Amendment but perhaps would not supply the standard for some other analysis.

MR. CASSIDY: That is correct, Your Honor.

QUESTION: Do you know of any case under substantive due process in which the deprivation in question was negligent, or even grossly negligent?

MR. CASSIDY: No.

QUESTION: Or even shocking the conscience but not intentional?

MR. CASSIDY: Under the Fourth Amendment, or Fourteenth?

QUESTION: Under the substantive Due Process Clause. Under the Due Process Clause, which we have interpreted to be a substantive clause.

MR. CASSIDY: I'm sorry, I--is there any case law--

QUESTION: Your argument concedes that if it shocks the conscience it doesn't matter if the officer did not intend to deprive this individual of his life.

MR. CASSIDY: Correct.

QUESTION: Do you know of any other substantive due process cases where there has been a negligent, even grossly negligent deprivation of life that was held to violate substantive due process?

MR. CASSIDY: I don't know that we concede that it should be something less than intentional, so--

QUESTION: You don't make the argument anywhere, and I--you know, I was--

MR. CASSIDY: I believe--

QUESTION: --surprised not to see it made.

MR. CASSIDY: I believe we did state that it would be necessary in the context of adopting the shocks-the-conscience standard that that be aligned with the need for intentional and deliberate conduct in order to support a violation for substantive due process under the Fourteenth Amendment.

QUESTION: Well, is what you're saying that conduct which is not intentional very likely would not shock the conscience? Shock the conscience suggests something moral, and simply gross negligence perhaps does not raise any moral question.

MR. CASSIDY: That's correct. We believe that the logical extension of shocks the conscience, in terms of the framework of defining such a claim, would be that of the language previously adopted by Judge Friendly in Johnson v. Glick, whether in fact there was conduct on the part of an officer that was malicious or sadistic for the very purpose of causing harm, and only in those circumstances could there potentially be a claim asserted for a violation of substantive due process in the context of a police pursuit.

QUESTION: Why couldn't there--so I'm thinking about it possibly a little differently, some things that you say. There is a category of cases where Government officials deprive a person of life. They're police officers, and most, but not all of those fall under the Fourth Amendment. That's one category.

MR. CASSIDY: Correct.

QUESTION: And there's a second category where they behave in ways that shock the conscience. That's a second category, not the first.

Then there's possibly a third category that Justice Ginsburg mentioned where you could have conduct, perhaps it's rare, but someone who's not a policeman, someone who doesn't behave in a way that shocks the conscience, but nonetheless either negligently, recklessly, or intentionally deprives a person of his life. Now, that might be covered by the Fourteenth Amendment, mightn't it? I mean, at least where someone intentionally deprives a person of his life.

MR. CASSIDY: Well--

QUESTION: What should the standard be there? Maybe it wasn't a policeman. Maybe it was a health officer. I don't know who it was.

But what should the standard be in that third category of cases? Would you say it never violates the Constitution to intentionally deprive a person of his life without justification? Would you say, reckless? Would you say, negligent? Does it depend on whether the State provides an adequate tort remedy, so that the process is okay, or not okay?

What's the standard in that third area? That's what I'm not certain about, which is why I asked.

MR. CASSIDY: I believe that third area should be handled by the States under the States--

QUESTION: So even if a person--

MR. CASSIDY: --process and should not be--

QUESTION: Even if a health officer, for example, intentionally murdered somebody under color of law, it didn't shock the conscience but it was awful, it doesn't violate the Constitution even if the State provides no remedy?

MR. CASSIDY: I have difficulty finding that that perhaps would not shock the conscience. However, that may fall--

QUESTION: You're going to expand the shock-the-conscience category. I mean, that's a way of dealing with it.

MR. CASSIDY: That may also be a claim under the Fourth Amendment, because that person effected a seizure of that party. If it's a nonpolice officer it may not be, but that--it's our position that that gray area--the Fourth Amendment would handle the claims for alleged unreasonable seizures of the person.

The Fourteenth Amendment, as petitioners have proposed, should be limited to only those claims that involve conduct that shocks the conscience. Any other areas should be covered by the State tort law and the political process in the States to adopt the appropriate tort remedies as the legislatures in the States see fit.

A good example of that is all of the statistical data that was submitted to this Court in the context of police pursuits. This Court should not, certainly, be forced to wade through all of those statistical statistics in order to make its decision in this case. However, the States are in the position to assess what statistical data is appropriate and to determine what remedies should be invoked, and with that, Mr. Chief Justice, I would--

QUESTION: How about an individual instance, like Checki itself? Would you agree that that is an illustration of where you might have--where you have conduct that is shocking?

MR. CASSIDY: I believe Checki is an illustration.

For instance, another illustration would potentially be when an officer knows the identity of a suspect and could apprehend them at a later time, but however proceeds to intentionally harass and threaten that person by tail-gating them at 2 to 3 feet at speeds in excess of 100 miles an hour.

Mr. Chief Justice, I would like to reserve the remainder of my time.

QUESTION: May I ask just one quick question, please, before you sit down?

I wanted to get back to this case, and you said at the beginning that you thought if it were a Fourth Amendment case there's clearly no liability. Why is that? Why isn't an attempted seizure subject to the Fourth Amendment?

MR. CASSIDY: Because I believe that this Court has previously addressed that question regarding the show of authority in the Hodari case, and there is no seizure, and that was confirmed by this Court's opinion in Brower.

With that, Mr. Chief Justice, I would like to defer my time.

QUESTION: Very well, Mr. Cassidy.

Mr. Hedlund, we'll hear from you.

ORAL ARGUMENT OF PAUL J. HEDLUND ON BEHALF OF THE RESPONDENTS

MR. HEDLUND: Thank you, Mr. Chief Justice, and may it please the Court:

This Court and the Constitution protect fleeing felons from lethal force except in certain circumstances. It would seem that this Court and the Constitution would do the same for people who only commit minor traffic infractions, and especially for innocent trapped passengers like Philip Lewis.

Furthermore, it is submitted that it should not be--

QUESTION: Well, it sort of begs the question to call this lethal force. When you say lethal force, you--that indicates, you know, intentionally trying to kill the person. That's not in this case at all, is it?

MR. HEDLUND: The--well, I think in this case--

QUESTION: It was at most an irresponsibly speedy chase.

MR. HEDLUND: Well--

QUESTION: Was there any indication that there was an intent to kill anybody, to apply lethal force?

MR. HEDLUND: Well, actually, when you look at the end of the accident itself, the police officer during his deposition will not even concede that he hit the individual, that--you'll see on page, I think it's 106 of the appendix, that here is an individual who is ejected, or stands up in the center of a two-lane highway. How in the world can the officer, who has 200 feet prior to impact, hit the individual, who's in the center of a two-lane highway?

QUESTION: If that's the case you shouldn't worry about the shocks-the-conscience standard, then. If you have a case where a policeman, you know, just revved up and drove right into somebody, why should you worry about shocks the conscience?

MR. HEDLUND: Well, I think--

QUESTION: That certainly shocks my conscience.

MR. HEDLUND: It certainly shocks mine. I think I can prevail in any jury on any test this Court wishes to present.

However, I think that the test, and that is really the crucial issue that was presented here originally, the test--and I think this case is properly analyzed under the Fourteenth Amendment. I think all the lower courts have actually analyzed most cases under the Fourteenth Amendment.

QUESTION: Was that true after our opinion in Conner v. Graham, as well as before? I know that there had been some considerable use of the substantive due process in dealing with police use of force in arrests before our opinion in Conner, but in Conner, of course, we said those kinds of things come under the Fourth Amendment. Are the cases you're talking about, do they come after Conner?

MR. HEDLUND: Oh, yes, and--I mean, there are legions of cases, and some of them use shocks the conscience, and some of them use reckless disregard. The Ninth Circuit--

QUESTION: Those are two quite different concepts, aren't they? Shocks the conscience certainly connotes something intentional, whereas reckless disregard connotes something--indifference, but not intent.

MR. HEDLUND: Well, I think it connotes reckless intent, which is, you know--

QUESTION: Well, reckless intent is a--kind of is an oxymoron. Reckless means you don't care, and intent means you do.

MR. HEDLUND: Well, I think there is--that's exactly the point that's presented here, and I would like to make one more point when I say, about the Fourteenth Amendment.

The individual who is killed in this case represents almost an innocent bystander, because he's on the back of a motor cycle, but at the time that he was actually killed he was standing in the middle of the street, because he had stepped off the motor cycle. It had stopped, and it was stopped in response to--

QUESTION: Well, if you--if, as you say, you can persuade a jury that the police officer just did this intentionally, as Justice Scalia says, you will win under any standard. But the Ninth Circuit didn't analyze it as if that were the case. It analyzed it as if it were gross negligence.

MR. HEDLUND: No, I disagree. In fact, the Ninth Circuit asked me specifically what I thought the standard would be, and suggested whether I thought the standard should be gross negligence, and I said, I think if you do that the Supreme Court will reverse you right away.

I don't think that gross negligence today--

QUESTION: So what did the Ninth Circuit decide was the standard?

MR. HEDLUND: Reckless disregard. Conscience indifference.

QUESTION: Yes, but that still is not your case, where the police officer simply guns the motor--

MR. HEDLUND: Well--

QUESTION: --sees this guy standing there, says, I'm going to kill him.

MR. HEDLUND: No, the person didn't gun the motor. He laid down 166 feet--

QUESTION: Just coasted in and intentionally--

MR. HEDLUND: No, no, you don't coast with 166 feet of four-wheel-lock skid. We concede that. He wished he got out of the way, yes. I concede that.

QUESTION: Well, he wished that, and he wasn't exactly an innocent bystander. I mean, he was riding on a motor cycle in violation of his parole, the motor cycle being driven by someone whom he had been told, as a condition of his parole, to stay away from.

MR. HEDLUND: Right.

QUESTION: So there was some reason to believe that the reason they were both fleeing was that they were--if found together were in violation of their parole for grand theft auto on some other occasion.

MR. HEDLUND: It was joy-riding--

QUESTION: Joy-riding.

MR. HEDLUND: --for Philip Lewis.

QUESTION: Well, whatever.

MR. HEDLUND: But from the position of the officer, that--there was--they didn't know these kids at all, and when they were perceived originally they were walking the motor cycle between the two police cars. The officer that instituted the chase didn't even know if the lights that were put on on Mr. Stapp's automobile were intended for Mr. Lewis, or for Mr. Brian Willard, more specifically, because--

QUESTION: They didn't realize that the police, when they turned the lights on, were trying to stop them.

MR. HEDLUND: There is no indication that Officer Smith, who did this incredibly reckless act, even knew that Philip Lewis or Brian Willard saw the lights. The only evidence is that Officer Stapp saw lights go on, and he was below the car, and at an angle.

He was faced in this direction. He looked over his shoulder. The boy--the boys at one time, he says, or another, looked at him and then proceeded off. He immediately turned his car in a three point turn and proceeded out at a high rate of speed.

QUESTION: And how--which was necessary to catch up to the motor cycle. How fast was the motor cycle going?

MR. HEDLUND: At that point--I asked him specifically, because, he said, they accelerated away quickly, and I said, what does that mean, you--oh, at a high rate of speed, he said. At a high rate of speed, they went. This is a 1976 Honda motor cycle that had just been worked on and finally fixed so it could even run, and he says, well, that means they accelerated quickly to the speed limit and then beyond.

The truth--when you see, as I have, the testimony of Officer Smith, everything in his testimony smacks of this incredible callous indifference, and this incredible hostility for an incident that was really created beforehand which, he came out of--he and the other officer came out of a house dispute which was--turned nasty, and he got back in his car--Stapp himself, all he heard was the revving of a motor cycle. He assumed that the revving of the motor cycle meant something, perhaps that the motor cycle was going fast.

QUESTION: Well, we're here to talk about what standard should be applied in determining these cases--

MR. HEDLUND: Well, that's--

QUESTION: --and whether or not the Ninth Circuit was correct.

If Collins v. Harker Heights controls the case, what should be the outcome?

MR. HEDLUND: Well, I actually like the opinion in Collins, because it seems to me to indicate that Collins is a situation in which the Court is willing, if the conduct, no matter what it is--no matter what it is--is so egregious that it shocks the conscience, that means to say that I--

QUESTION: Well, that's not what the court of appeals held, was it? The court of appeals held reckless indifference, which is really mistaking the analysis given in Collins.

MR. HEDLUND: Well, Collins--

QUESTION: In Collins we used, of course, reckless indifference, but that was just to get over the Monell liability problem, not the substantive problem. So you are, then, not defending the Ninth Circuit analysis, I take it.

MR. HEDLUND: I am defending the Ninth Circuit analysis. I thought it was a good analysis, and an appropriate analysis. I--

QUESTION: Did you think it was correct under Collins, despite the fact that they used the second prong test, municipal liability, to determine the first question, whether or not there was a substantive violation?

MR. HEDLUND: Well, I think they just determined that the same test should apply for municipal liability as applies for the underlying violation.

QUESTION: But that's quite--exactly contrary to what the Court held in Collins.

MR. HEDLUND: But Collins is a particular case that doesn't present the issues that this case presents at all. Collins is a way of getting around Worker's Comp statutes.

QUESTION: But Collins is an interpretation of the substantive Due Process Clause, and it uses the shocks-the-conscience test. It tried to give it an objective component, not a subjective component, and the Ninth Circuit is the only one that seems to have misunderstood it, and it has done so in your case, and so it doesn't seem to me that you can, on the one hand say that you like being with Collins and on the other hand defend the judgment of the Ninth Circuit.

MR. HEDLUND: Well, I--what I was saying is that Collins to me, reading Collins indicated that when you're dealing with noncore fundamental issues such as life, and here it's a failure to train, and you're dealing with nonspecifically governmental entities, like a sanitation department, which could be anything, there is a desire not to expand at all the Fourteenth Amendment into areas--

QUESTION: But there was no question in Collins whether or not a governmental official was involved, and I'm not sure--

MR. HEDLUND: No, but--

QUESTION: --I know of any authority for the proposition that depending on whether or not you're a police officer or some other municipal employee the standard of--under the Due Process Clause differs. Do you--

MR. HEDLUND: Oh, I think it does, and it should.

QUESTION: What is the--what case do you have for that?

MR. HEDLUND: I don't--to me the Collins case specifically is--says that this is not the kind of governmental function that the Fourteenth Amendment was normally designed by the Framers to protect against, but in our--

QUESTION: Because the standard of shock-the-conscience was not met. We're talking about standards.

MR. HEDLUND: I--

QUESTION: We don't have different standards of liability under the Fourteenth Amendment depending on a whole range of different governmental officers. If the injury is the same we base it on what the injury is.

MR. HEDLUND: So is it the--I--

QUESTION: It seems to me that you're going to either defend the Ninth Circuit analysis or you're not, and if you're going to defend the Ninth Circuit analysis, then you have to ask us to alter the analysis that we used in Collins.

MR. HEDLUND: I don't believe that the analysis in Collins applies. I think shocks-the-conscience test that was enunciated in Collins is a good test for situations which are outside the normal purview of the Fourteenth Amendment, and which this Court does not want to be overridden by every administrative decision that occurs, and in those cases I think it's perfectly appropriate, and I applaud the Court--

QUESTION: Well, do you think that high speed auto chases are the sort of thing that the Fourteenth Amendment was designed to address?

MR. HEDLUND: Absolutely. That is the--

QUESTION: In 1868?

MR. HEDLUND: Well, high speed automobile chases--

QUESTION: Carriage chases, perhaps.

MR. HEDLUND: Well--

(Laughter.)

MR. HEDLUND: And carriage chases didn't wreak the havoc that a 4,000-pound automobile doing 100 miles an hour behind some kids, when the police officer himself says--talk about shocks the conscience--that he was concerned for the safety of the passenger because the passenger's on the back of that errant motor cycle and not wearing a helmet.

QUESTION: Can I ask you, follow--you may not agree with what--my analysis, but assume it for a second. Assume that you could recover under the Fourth Amendment were it not for the problem of seizure--

MR. HEDLUND: Right.

QUESTION: --so we're not talking about the Fourth Amendment. I'll assume for the sake of argument that you could prove a shock-the-conscience. Maybe you can, maybe you can't.

MR. HEDLUND: Yes.

QUESTION: I'd say there is a category of shock-the-conscience behavior. If you win on that one, fine, but I don't think that's what's in front of us. I think what's in front of us is the concern with a middle category of case--

MR. HEDLUND: Right.

QUESTION: --where a Government official, deprives a person of his life and the Constitution says you can't.

Now, with property, I think this Court said in Parratt that you're going to look to State law because they provide the procedure that's due. All right. With life, maybe it makes a difference whether it's intentional, reckless, or negligent, and whether the State provides procedure that's due. That's what I want to know.

What's the procedure that you get here under State law?

MR. HEDLUND: Well, I--

QUESTION: That is to say, can you recover from the municipality here under State law so that your client, if there was negligent or reckless or wrongful behavior, would be compensated? Does State law permits that or not?

MR. HEDLUND: I don't think it's as easy as yes or no. I think yes. The defendants say no. They still say no.

They say, and I've been down this line enough times, that every single possible immunity--there's one that says fleeing people trying to evade don't have--you know, that an officer and the municipality are both immune from that liability, and then they try to say that the person on the back of the motor cycle was a coconspirator or something like that, had some agreement that he was going to continue.

Actually, in fact, the agreement here was that Mr. Lewis asked Brian Willard to stop and pull over on Orangevale, which is where the accident happened.

Now, of course, what will happen eventually is either they will show that he's either participating or, when we get to the negligence claim, if we ever get to there, they will say, well, then he was partially negligent for asking him to stop right in the middle of the road.

QUESTION: Well, Mr. Hedlund, you still have, I guess, unresolved at this stage State law claims--

MR. HEDLUND: Yes.

QUESTION: --against the police officer--

MR. HEDLUND: Yes.

QUESTION: --and the county?

MR. HEDLUND: I have unresolved all claims. I have never had a trial. I have never--

QUESTION: Well, there was a summary judgment at issue here.

MR. HEDLUND: Right.

QUESTION: That's what we're dealing with.

MR. HEDLUND: Right.

QUESTION: But with regard to the section 1983 claims only, isn't that right?

MR. HEDLUND: No. The summary judgment went to the State claims, too, and the Federal judge there proceeded to knock me out on the State claims to the extent that he could and then reserved the one--

QUESTION: Well--

MR. HEDLUND: One left.

QUESTION: --in any event, as I understand the situation, you have remaining for disposition in the lower courts claims of negligence or gross negligence against the officer and the--

MR. HEDLUND: Not the officer any more. Immunity applied to him completely. But to the county--

QUESTION: To the county.

MR. HEDLUND: Yes. Otherwise the county is out on this.

QUESTION: Is it something like the Federal Tort Claims Act where the governmental body is substituted for the individual who may have been negligent?

MR. HEDLUND: Well, is it respondeat superior that exempts the officer, yes. In practicality the officer is exempted anyway, because the--

QUESTION: Judgment-proof, or--

MR. HEDLUND: Well, the--no, not because of judgment-proof, but because of agreements that are reached between the entities and their employees. They originally request insurance, but they have a back-up plan and they indemnify the employee.

QUESTION: May I ask you, if this case were analyzed under the Fourth Amendment rather than substantive due process, what do you think a proper disposition would be?

MR. HEDLUND: Well, I think I would--in terms of disposition, you mean, what would be found? I think I would win hands-down, objective test of reasonable force.

QUESTION: How would you get over the possible hurdle that there was actually no seizure here?

MR. HEDLUND: Well, that's the problem. That's why it's analyzed under the Fourteenth Amendment. It's unfortunate, but the truth is that one-third of all these deaths--which, by the way, are occurring one a day in high speed chases. This is a phenomenal problem. It kills exactly, almost to the individual--in 1995, 383 people each, as much as handguns used by police, so it is the--

QUESTION: Do you have any idea how many dangerous felons have been captured in high speed chases who would have killed more than 383 people?

MR. HEDLUND: Well, there's no statistics. It's--you know--

QUESTION: I mean, it's all a cost-benefits analysis, isn't it, and I guess if the--you know--you can't really--

MR. HEDLUND: I--you know, I think, though--I think that the notion of the Fourteenth Amendment is that there are certain arbitrary procedures. When you pursue someone for no cause--there is--without sufficient justification, and you endanger so many people's lives, going over a blind hill at night--

QUESTION: Well, you have this big wind-up, but what's the answer to Justice Stevens' question? What is the standard under the Fourth Amendment. We're talking about standards here. We can apply those standards to the facts in the judicial system, but we want to know what the standard is--

MR. HEDLUND: I think--

QUESTION: --so we can instruct the Ninth Circuit--

MR. HEDLUND: I think--

QUESTION: --whether it was correct or not.

MR. HEDLUND: I think that Farmer v. Brennan is a good standard, that--disregarding a known risk. I think that that is enough to give intent. If it weren't for Brower I think that we would agree with the notion of an analysis under the Fourth Amendment. I think that--

QUESTION: So there can never be a lawful--or, there can never be a high speed chase consistent either with--

MR. HEDLUND: No. I think that one has to balance--

QUESTION: Well, there's always a known risk.

MR. HEDLUND: That's true.

QUESTION: If you're going to drive that fast there's a known risk, and presumably you disregard it when you make the chase, so how do you distinguish between the cases in which there would be recovery and those in which there would not be?

MR. HEDLUND: Is it justified? Is there some compelling reason? You know, there are so many policy questions that should be answered here. What is this officer going to do when he catches up? What can you do?

QUESTION: What should the line be, felony misdemeanor? Lack of probable cause? Probable cause?

MR. HEDLUND: Serious felonies you can engage in a--the same as firing your weapon. I don't think there's really any difference. I think this--these high speed chases represent exactly, to the man, the same problem that the discharge of the officer's weapon, except to use the military phraseology they have an incredible kill radius.

QUESTION: You know, I'd be sympathetic if your client were a bystander, but it takes two to make a chase, and your--

MR. HEDLUND: Not when one's driving a motor--

QUESTION: Well, he was not driving. He was sitting right behind the fellow that was driving. There's no reason to believe that he wasn't happy to get away as much as the person who was driving.

QUESTION: And he owned the motor cycle, didn't he?

QUESTION: And he owned the motor cycle.

MR. HEDLUND: He owned the motor cycle, yes. That was his crime. He owned the motor cycle. He'd owned it for 5 days. He fixed it up, took it down to a gas station. At the gas station was Mr. Brian Willard. He argued with Mr. Brian Willard not to go on the bike, but he said, my father bought it for me. If you're going to take it, I have to go along with you. My father will kill me otherwise. Yes, that--

QUESTION: Did you put Mr. Brian Willard on the stand, who said--who said, the decedent kept yelling in my ear, please, slow down. Stop. Stop. Did that happen?

MR. HEDLUND: Yes.

QUESTION: You put him on the stand and that's what he said?

MR. HEDLUND: That's what he has said. He did not say that in his deposition. He said he didn't remember that. He didn't remember being asked to pull over. He told the police when he turned himself in.

You know, Mr. Brian Willard left the scene. He was okay. He was a little further from the center of the road on the--in the oncoming lane the other side.

QUESTION: All this is--as you've said, it's all violating your standard, and so forth. Is there any reason--assuming your facts are right, is there any reason to think you could not recover against the State--against the municipality under State law, assuming your facts are what they say, are what you just said?

All the facts are just as you said them. Is there any reason to think that State law would not give you a tort remedy against the municipality, or against--

MR. HEDLUND: I believe it will.

QUESTION: You believe it will. All right. And is the--fine.

MR. HEDLUND: I've always believed it would.

You know, one of the things, 40 percent--40 percent of these high speed police chases--

QUESTION: The chases, if you're going into the statistics, they're very much contested in these briefs, and I'm not certain--

MR. HEDLUND: Okay.

QUESTION: I mean--

MR. HEDLUND: Okay.

QUESTION: One of the briefs of the municipalities says 300 a year out of the 2.2 million people--

MR. HEDLUND: It's now 400.

QUESTION: All right. But there are 2.2 or 2.3 million people who die. It's very bad that there are 3 or 400. That's terrible, but that's not enormous in terms of the number of people who die in accidents. That's what one side says, and I guess the other side focuses on this, and I'm not sure that it's directly related, is it, or not, in your opinion?

MR. HEDLUND: Well, I believe that it's related from the standpoint, is this a problem that rises to constitutional dimensions, and I think the Court should consider not only--if this were an isolated event, it wouldn't come to the Court's attention. It wouldn't be fought for all these years by the police departments. The reason they're fighting like this is because they want to continue this. They want to continue to take the lives of innocent--

QUESTION: Maybe they're fighting it because they think the Ninth Circuit was wrong and didn't follow our cases.

MR. HEDLUND: To be sure, but--

QUESTION: It's happened before.

(Laughter.)

MR. HEDLUND: I hope that doesn't color the Court's--or give a jaundiced eye towards the Ninth Circuit. I think the Ninth Circuit correctly determined this. I think it's the only methodology that we have, and this Court has available to it in a single sweep to announce policy that will make--that will be incorporated into policy immediately, that will make these--

QUESTION: But we don't announce policy Mr.--

MR. HEDLUND: No.

QUESTION: You know--

MR. HEDLUND: All you have to do is say, we're not talking about an expansion of the Fourteenth Amendment. We're talking an application of it.

This is exactly what the Fourteenth Amendment--although the Framers didn't know about cars then they certainly knew about arbitrary, abusive, oppressive Government power, and there can be no more core Government function that affects the individuals in this society every single day than the interface that occurs exactly out on the streets with the police car fully lit and right behind you showing every bit of color of law that's available, and that color of law is depriving innocent people of their lives every day with no justification whatsoever, and--

QUESTION: And yet one of the leading cases that you rely on didn't show color of law. In fact, wasn't that one of the problems in Checki, that it was an unmarked vehicle, that this police vehicle was chasing for something like 20 miles without any indication that it was a police car?

MR. HEDLUND: Well now, again, that brought it out of, you know, normal perhaps Fourth Amendment type situations, but--

QUESTION: You think a car with lights on is worse? You think a marked police car is worse?

MR. HEDLUND: Well, I think it removes any question of whether it's under color of law.

QUESTION: It also removes any question of whether the person fleeing didn't know he was fleeing from an officer trying to make an arrest.

MR. HEDLUND: Yes. The person fleeing was Brian Willard, the driver of the motor cycle, and the--

QUESTION: It still bears upon the guilt of the police officer whether the police officer reasonably continued the chase.

MR. HEDLUND: When he--when he saw--

QUESTION: It may not make your client any more guilty, but it certainly makes the police officer more reasonable in continuing the pursuit, knowing that the person sees the police lights, hears the siren, and is fleeing.

MR. HEDLUND: Well, the problem that we have in all of these, and one of the things that we see constantly in the petitioner's briefs and the amicus briefs on his behalf is that there is a justification because you might catch other people.

Or one of the amicus briefs, he even goes so far as to say that a person who has such contempt or disregard for law and order and law enforcement officials, that the removal of that person from society serves a valuable function.

I--you know, I can't imagine the kind of transgression on fundamental constitutional rights that is envisioned by that statement, and nor can I envision what practical result is going to occur when the things discovered after the chase actually give reason for the chase to begin with.

That's like saying if we went into everyone's homes we find a lot of people have done crimes. That's not what this country is about. That's not what the Constitution is about.

QUESTION: Oh, but presumably most citizens know that if they violate the traffic laws and a police car attempts to stop them they should stop and yield to the authority. I mean, most of us understand that.

MR. HEDLUND: That's exactly true. Most of us understand that you shouldn't murder someone, but the problem is that there are certain situations, most of the time murders, and most of the time fleeing occurs because for some reason or another--it's a kid, it's somebody who just makes a decision that's irrational. Most people stop.

QUESTION: Well, there was at least testimony here by the young man who survived that the decedent kept urging him to flee.

MR. HEDLUND: There was a statement, not kept, but that the decedent said at one point, let's get out of here, in the beginning, contested.

QUESTION: Thank you, Mr. Hedlund.

MR. HEDLUND: Thank you.

QUESTION: Mr. Cassidy, you have 4 minutes remaining.

REBUTTAL ARGUMENT OF TERENCE J. CASSIDY ON BEHALF OF THE PETITIONERS

MR. CASSIDY: Thank you, Your Honor.

I think there is a simple remedy in that case--in this case, and that is, to pull over and stop and yield to lawful authority. It's the criminal that initiates the reckless conduct and endangers the public. The law enforcement officer is simply trying to apprehend the suspect and uphold his duties of office. In this case--

QUESTION: Mr. Cassidy, I did want to call to your attention one thing. You, on page--is it 20 of your brief?--you refer to the decisions of Evans and Temkin, and you say that this Court--well, you tell me what--you said the Court had implicitly approved of the court of appeals' decisions in those cases.

MR. CASSIDY: Only to the extent the issues presented on the petitions for the writ before this Court were exactly the same question presented in the reverse, and this Court declined hearing--

QUESTION: Is a denial of certiorari an implicit approval of anything?

MR. CASSIDY: No, certainly not authority, Your Honor, but some indication that this Court has approved of that analysis as opposed to this Court's--the Ninth Circuit's analysis in this case.

QUESTION: Gee, I hope not. I have voted to deny certiorari in a lot of cases whose analysis I don't approve of.

MR. CASSIDY: Accepted, Your Honor.

Quickly, petitioners would prevail because there was no Fourth Amendment claim in this case, so even if this Court were to determine that the Fourth Amendment applied, not only was there no seizure in this case, but no Fourth Amendment claim was asserted.

In terms of the factual circumstances, petitioners respectfully submit Deputy Smith was acting appropriately, and that in fact Mr. Lewis did initiate and cause Mr. Willard to proceed and flee from Deputy Smith.

Mr. Willard admitted in deposition that he knew Deputy Smith was trying to stop him initially and during the course of the pursuit and if, in fact, this pursuit was coming to a conclusion because these two individuals decided to stop, you don't yield to lawful authority in the middle of the road.

The simple fact of the matter is, they crashed the motor cycle in the middle of the road, because had they made good their left-hand turn about a 150 feet down the road or so there's a barrier that would not let police vehicles through but the motor cycle would make good its escape.

I think there is a valid justification in the fact that pursuits are conducted and oftentimes result in finding suspects who have committed more serious crimes, and I think that's an important policy consideration that this Court should look to.

In addition, with all the discussion we've had here today, petitioners would respectfully submit that it seems clear that Deputy Smith is entitled to qualified immunity on the grounds that the law was clearly not established sufficiently in May of 1990 to hold Deputy Smith liable.

Moreover, if this Court determines that there is potentially a claim under the Fourteenth Amendment, then we would submit the appropriate legal standard is conduct that shocks the conscience, and Collins is controlling.

The cases which fall in between the cracks, so to speak, are those to be left for the States to decide. That's specifically the type of policy choices that should be made by the people of the various States through their local representatives, but should not be thrust upon them by the judicial expansion of the Due Process Clause of the Fourteenth Amendment.

Thank you. With that, submitted.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Cassidy.

The case is submitted.

(Whereupon, at 11:10 a.m., the case in the above-entitled matter was submitted.)