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Audio Transcription for Oral Argument - December 09, 1997 in County of Sacramento v. Lewis

Terence J. 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--

Antonin Scalia:

Certainly nothing in this Court has.

Terence J. 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.

Antonin Scalia:

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.

Terence J. Cassidy:

That's correct, Your Honor.

Antonin Scalia:

Why should we do it for the Fourth?

Terence J. 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.

Ruth Bader Ginsburg:

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?

Terence J. 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.

David H. Souter:

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.

Terence J. Cassidy:

No.

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

David H. Souter:

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.

Terence J. Cassidy:

Well, 1), if you assume--

David H. Souter:

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.

Terence J. 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.

William H. Rehnquist:

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.

Terence J. Cassidy:

That's correct.