Posts Tagged ‘Scott v. Harris’

Commas and the Law, Part V – The 2nd Amendment

January 11, 2008

We left off with the video of the high speed chase in the case of Scott v. Harris in the United States Supreme Court decided last year. [1]If you haven’t watched it, here it is again.

Victor Harris, age 19 at the time, was going 73 mph in a 55 mph speed zone on a road in Georgia. A police cruiser clocked him at that speed and then went after him. Young Harris fled, which resulted in the high speed chase (up to 90mph) you see on the video. After about 9 minutes of the chase, the police decided to “take him out” by shoving the Harris car off the road, resulting in the wreck you see at the end of the video. Amazingly, the wreck did not kill Harris but it did render him a quadriplegic, paralyzed permanently from the neck down. Harris sued the police, alleging that they used unnecessary force to stop him. (The police knew who he was long before the chase ended and could have abandoned the chase, gone to Harris’ house and arrested him there) Two lower courts, while not deciding the case either way, thought that Harris was entitled to have a jury hear his claim. The Supreme Court, by a vote of 8 to 1 threw Mr. Harris out of court without giving him his jury trial, holding that the video proved that no “reasonable” person could conclude that the police used unjustified force in ending the chase. The lone dissenter, Justice Stevens, saw something different and no one can rebut his senses because none of us can see anything except with our own eyes.

But the Court tried. It put the video up on its web site, the first time it had ever done such a thing, inviting people to look at it and make up their own minds.

Accepting the Court’s invitation, three law professors showed that video to 1,350 representative Americans to see if they agreed with the result. You can read the paper here.

The majority did agree, but a significant minority thought that the police overreacted and used unreasonable force. The people who agreed with the Court held “hierarchical” worldviews. The minority, which did not agree, held “egalitarian” worldviews. People are disposed to resolve disputes in a way which supports their group identities and their personal values:

Individuals who subscribe to a worldview that is relatively “hierarchical,” we predicted, would likely be strongly inclined to agree with the Court’s assessment of the risks posed by the fleeing driver, whose defiance of authority would provoke their resentment and fear. In contrast, subjects who subscribe to a more egalitarian worldview, we predicted, would be angrier at the police, as symbols of overreaching authority figures, who were indifferent to the danger their own use of force posed to the well-being of bystanders, not to mention the driver. As a result, they would form the judgment that the decision to chase the driver and to use deadly force to halt his flight were not risk-reducing on net.

That’s exactly what we found.

It turns out that our perception of facts are “pervasively shaped” by our values. Moreover, we clearly perceive this value-based perception in others but are very bad at seeing it in ourselves. The Court in the Harris case failed “to recognize the cultural partiality of its own perceptions.”

The Court’s appeal to brute sense impressions to justify its decision reflects a simple incomprehension that people with particular cultural commitments would likely see something very different. Only decisionmakers unaware of the role that cultural commitments were playing in their own perceptions of the facts could actually make an oversight like that.

But that’s not all. Ascertain whether a justice is more “hierarchical” or “egalitarian” and you can predict how that justice will interpret those 2nd Amendment commas. Those commas in the 2nd Amendment mean exactly what each justice wants them to mean. So much for the idea that the law, like grammar, is objective and rational.

And it gets worse, our values are shaped in large part by our emotions. But that is a subject for another day.
[1] Lawyers find the case fascinating for all sorts of technical reasons but my purpose today is to use the case to demonstrate how judges decide cases and how the Supreme Court is likely to decide the 2nd Amendment case we’ve been discussing in these posts about the commas in the amendment. Here is just a small sample of the legal debate. Orin Kerr, What Are the Facts in Scott v. Harris, The Volokh Conspiracy, (“The right answer is that Justice Breyer should believe his own eyes.”) (February 28, 2007); Case Comment, Fourth amendment – Reasonableness of Forcible Seizure, 121 Harv. L. Rev. 214, 222 (2007) (arguing that the Court’s analytical approach pushed it to make a bad ruling on an incomplete record); Tommy Crocker, Do Texts Speak for Themselves, Prawfsblawg, (November 5, 2007) (criticizing Court’s lack of justification for its result and stating “I can imagine how much easier teaching would be if I could simply say to students, ‘I’m happy to allow Marbury to speak for itself.’ ”)”); and Dave Hoffman, The Death of Factfinding and the Birth of Truth, Concurring Opinions, (April 30, 2007) (“each Justice saw the risk of speeding through his or her own cultural prism.”).