No, we are not going to be able to watch oral arguments, as this presumably would require someone to kill Justice Souter so we could roll the camera over his dead body. Instead, the 8-1 Scott v. Harris Court, in a majority opinion by Scalia, appears to have based its decision on the videotape of a high-speed buggy chase in which the plaintiff-appellee Harris drove over 90mph on wet roads to evade the defendant-appellant Scott, who bumped the plaintiff's car and sent it down an embankment, causing the plaintiff to be so severely injured that today he is a quadripledgic. Perhaps I am biased by having gotten ticketed for speeding a few times myself (though always pulling over and looking at the officer with big sad eyes rather than attempting to evade capture), but I would think a jury should be able to make this call. Having something that presumably would be entered into evidence in the civil suit be so important in the Supreme Court's ruling indicates that we could get the same result -- no penalty for the officer -- while allowing the plaintiff to have his day in court. If the plaintiff's account of events is utterly unbelievable once you see the videotape, then let defense counsel impeach the hell out of the plaintiff on cross.
Count me among the Volokh commenters and SCOTUSbloggers who see this decision as a surprising mistake by every justice except Stevens. A jury should have decided whether this was an unreasonable seizure giving rise to Section 1983 liability, just as the Ninth Circuit (on remand after the Supreme Court's Brower v. Inyo County decision) held,
The necessity inquiry is a factual one: Did a reasonable non-deadly alternative exist for apprehending the suspect? A dismissal for failure to state a claim "cannot be upheld unless it appears to a certainty that the plaintiff would not be entitled to relief under any set of facts that could be proved." Sanders, 794 F.2d at 481. Here, it cannot be said with certainty that no non-deadly alternative existed. This is a question of fact, and thus granting the motion for failure to state a claim was error.INCIDENTALLY: Best moment from Scott's attorney in oral argument: "And to put it in a more complete perspective, 90 miles an hour is mathematically equivalent to over 130 feet per second."
JUSTICE BREYER: Am I -- did I mis-see that? I'll go look at it again if you -
MR. JONES: The -- feel free to look at it again.
JUSTICE BREYER: Yeah.
MR. JONES: But those are not the facts that were found by the court below in this -
JUSTICE BREYER: Well that's, that's what I wonder. If the court says that isn't what happened, and I see with my eyes that is what happened, what am I supposed to do?
MR. JONES: Well, I think you apply the law, Your Honor.