How The Supreme Court Killed Andrew Brown

Think you know your constitutional law? Here’s a pop quiz: When can a moving vehicle be considered a deadly weapon? Before I reveal the answer, a little backstory: In 2001, a Georgia sheriff’s deputy clocked 19-year-old Victor Harris going 18 miles per hour over the posted speed limit. Instead of pulling over, Harris decided to run. Soon he was being chased by a fleet of cruisers down a dark, deserted, two-lane highway in rural Georgia.One of the deputies who gave chase, Timothy Scott, decided he was going to ram Harris’ vehicle from behind. Scott‘s supervisor told him to “go ahead and take him out.” Harris’ vehicle spun out of control and flipped into a ditch. Scott didn’t quite succeed in killing Harris, but Harris was rendered a quadriplegic. Harris sued Scott. Even the miserably conservative Eleventh Circuit Court of Appeals said that Harris should get a trial, because cops shouldn’t try to kill someone who’s running from them, even if it’s for something as serious as speeding.

But in 2007, the late Supreme Court Justice Antonin Scalia, a jurist possessed of as much compassion as a plate of cold spaghetti, framed the question not as “can an officer execute a fleeing suspect?” but “can an officer take actions that place a fleeing motorist at risk of serious injury or death in order to stop the motorist’s flight from endangering the lives of innocent bystanders?” In other words, can a cop stop the bad guys from inflicting some unspecified future harm to someone, somewhere, by killing them? The nearly unanimous answer in Scott v. Harris was “yes.” Harris’s case was dismissed, never to be heard by a jury. 

To the Supreme Court, every car was an instrument of death, capable of being used to threaten entire communities.And so, for nearly 15 years, the answer to our quiz above has been: A moving vehicle is always a deadly weapon. Doesn’t matter if the car isn’t about to hit someone. Doesn’t matter if the car is going backwards, forwards, accelerating, braking, or just rolling. Doesn’t matter if there are hostages in the car. Doesn’t matter if those hostages are children. All that matters is there’s a moving vehicle, and police want it to stop. Not only can police use whatever means available to stop a suspect wielding a deadly weapon, but as a practical matter, they must. Who knows what evils could be visited upon an unsuspecting world by an errant driver?

The Supreme Court’s signature on this blank death warrant has led to predictably terrible real-world results. Scott v. Harris is undoubtedly what caused the shooting death of Sam DuBose by University of Cincinnati officer Ray Tensing in 2015, after DuBose’s car rolled a few feet during a stop for an improper license plate. Or there’s John Berry, who found himself swarmed by deputies in Lakewood, California, during a 2016 schizophrenic episode. Never once did Berry threaten any officers, and his only crime was severe mental illness, but his car “lurched forward, then back” according to news reports, and that was enough for sheriff’s deputies to administer the death penalty. Or consider 15-year-old Jordan Edwards, who was killed in 2017 for riding in the passenger seat of a car driving away from a Balch Springs, Texas officer.Sometimes the officers are held accountable in these situations, but usually not. In any event, the lesson internalized by police over the last decade and a half is clear: If the car moves, even a few inches, mash the ‘kill’ button.

The most recent of these motorist executions is that of Andrew Brown in Pasquotank County, North Carolina. Video shows a heavily-armed platoon of 20-somethings descending on the suburban home of the middle-aged Brown. In the old days, arrest warrants could be served by one or two officers with a firm knock on the door and some minor unpleasantries exchanged; today, it is fashionable to use a small army of Valhallans fresh out of high school DOOM tournaments, and unpleasantries are experienced only by the would-be arrestee. Brown, a Black man, naturally tries to escape the advancing horde of white cops, but makes the mistake of doing so in a motorized vehicle — a rolling deadly weapon — rather than on foot. He is executed less than 15 seconds after police arrive on the scene.

Everyone agrees that Brown was trying to get away from officers, not driving toward them. He probably could have run a few of them over if he wanted to. He didn’t. It doesn’t matter. The district attorney, in announcing that no real consequences would befall the responsible officers, said: “Mr. Brown’s death, while tragic, was justified because Mr. Brown’s actions caused three deputies to reasonably believe it was necessary to use deadly force to protect themselves and others.” What were Brown’s “actions?” You guessed it: Driving a car.

A New York Times article on Brown’s death quotes two law professors who seem to think that the shooting was unjustified because “[t]he Supreme Court has never authorized the use of deadly force simply because someone is resisting arrest or fleeing.” But either these professors haven’t read Scott v. Harris, or their take on what the case means is dramatically less cynical than mine. While a suspect can’t be shot if they are fleeing on foot, the Scott case means that if they’re fleeing in a car, they’re not really fleeing at all, but haphazardly waving a deadly weapon in the face of an entire populace. 

The courts have shifted even further to the right since 2007, so it’s unlikely that the open season on moving vehicles will end anytime soon. Still, many cities nationwide have realized that, in spite of the Scott case, encouraging cops to kill fleeing suspects isn’t that great of an idea. Cities have paid settlements to victim’s families even when they probably didn’t have to. Some departments have gone so far as to institute policies against firing into, or even pursuing, moving cars.

But such policy changes can only be accomplished if a city wants to stop unnecessary death. No one’s going to make them. The judiciary will bless these murders nearly every time, and every cop in the country knows it. That’s why Pasquotank County’s D.A. can confidently say “we didn’t do anything wrong” to Brown’s family. According to the Supreme Court, they didn’t. •

This article appears in July 7, 2021.