Video Evidence and Summary Judgment: The Procedure of Scott V. Harris
Wasserman, Howard M., Judicature
The Federal Rules of Civil Procedure turn 70 this year-a set of New-Deal-era rules being used to litigate modern federal civil litigation. Last term, the Supreme Court's decision in Scott v. Harris1 merged two elements of modern civil rights litigation in one case with far-reaching procedural consequences.
One element is the dramatic expansion of summary judgment under the Federal Rules over the past 20 years. Summary judgment has morphed from a procedure that halted cases prior to trial only if a jury can reasonably choose only one of several competing factual inferences2 into "something more like a gestalt verdict based on an early snapshot of the case."3
Various studies over the past decade find anywhere from 7 percent to more than 20 percent of all civil cases terminated on summary judgment.4 A 2007 Federal Judicial Center study found summary judgment motions filed in 17 of every 100 case terminations, more in civil rights cases, with 60 percent of those motions granted in whole or in part, 70 percent in civil rights cases.5 These numbers at least suggest a particular attitude towards summary judgment.6 They also correspond temporally with a dramatic decrease in the number of civil trials.7
The other element is the evidentiary use of video recordings of encounters between law enforcement and citizens, such as interrogations, traffic stops, and, in Scott, high-speed chases. Video is widely favored as a way to monitor both polke and citizen conduct, by, it is believed, providing an objective, unambiguous picture of these encounters.8 Jessica Silbey calls such video proof "evidence vente, filmic evidence that purports to be unmediated and unselfconscious film footage of actual events."9
The substantive crux of Scott was whether an officer used excessive force in ramming a suspect's car during a high-speed pursuit as a way of ending the chase. The Court concluded that a "police officer's attempt to terminate a dangerous high-speed car chase diat 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."10 That Fourth Amendment conclusion has received the most attention from lower courts and commentators.11
But the Court reached that decision on summary judgment, on its determination that a video of the chase, taken from the pursuing officer's dash-mounted camera, presented the single "true" version of events and permitted the Court to ignore contradictory testimony from the plaintiff. As a result, there was no issue of material fact as to the reasonableness of the officer's action and no reason or opportunity for a jury trial. This procedural element likely will have a lasting effect. Courts long have struggled to integrate evidence verite into the trial process. Scott reflects the Supreme Court's effort and, arguably, failure to properly integrate video evidence into the pretrial process and summary judgment.
In March 2001, Victor Harris was clocked traveling 73 mph in a 55-mph speed zone on a county road in Georgia; a county deputy sheriff sought to pull him over. Harris drove off, initiating a high-speed pursuit by several county deputies, including Deputy Timothy Scott. The cars, at times exceeding 85 mph, traveled primarily along two-lane roads, into and around a shopping-mall parking lot, and continued down two-lane highways. After traveling ten miles in six minutes, Scott requested and received permission to perform a maneuver designed to cause Harris' car to spin to a stop. Instead, Scott bumped the rear of Harris' car; the car left the roadway, went down an embankment, overturned, and crashed. Harris was rendered a quadriplegic.12
Harris sued Scott and Coweta County under 42 U.S.C. § 1983, alleging a violation of his Fourth Amendment right to be free from excessive use of force, a form of unreasonable seizure. Scott moved for summary judgment, asserting an affirmative defense of qualified immunity, which entails a two-part inquiry: 1) Whether the facts and evidence show that the officer's conduct violated a constitutional right and 2) If so, whether the right was clearly established at the time, in light of the specific factual context of the case, such that a reasonable officer would have known that his particular conduct violated the right. …