- The Washington Times - Saturday, May 19, 2007

When I saw Supreme Court Justice John Paul Stevens was the lone dissenter in the case of Scott v. Harris (a speeding motorist was forced off the road by a pursuing police officer), I chuckled, because as a libertarian, I know what it feels like to be outnumbered. Eight to One. Wow. Talk about being out on a limb. To me however, the real root issue of this case was not even looked at by the court. However, it’s still with us — a giant elephant in the corner of the room.

I refer to the reason for the original stop. Speeding 74 miles per hour in a 55 mph zone. Some think this doesn’t matter, but I think it does, because the oral transcripts make it clear not only that the fleeing driver’s “racing off” was a big part of why deadly force was deemed reasonable by the court, but also that his traveling 74 mph is what got the attention of the police to begin with.

Let’s remember Harris, the plaintiff, nearly died, and is a paraplegic. I think it’s worth retracing the affair starting with what he did to deserve being stopped.

Some people say it doesn’t matter what he did to get stopped, because if you refuse to stop for a cop, you deserve whatever you get. Maybe, but let’s look at it anyway, even if the Supreme Court didn’t. The reason? The problem sometimes with courts applying themselves only to the narrow issues of law before them is that they miss the bigger picture. Officially, this case was about whether now-paraplegic Mr. Harris could sue Deputy Scott for using excessive force to make an arrest (a seizure). Supposedly, this is a Fourth Amendment issue, but I find it interesting that no one is discussing the speed limits that gave rise to the original traffic stop. After all, no stop, no chase — no chase, no case.

Speed limits are supposed to be set by a scientific standard called the 85th percentile speed. This and other standards are published in the Manual for Uniform Traffic Control Devices (MUTCD) and most states have laws requiring use of MUTCD standards. The 85th percentile standard means that speed limits are supposed to be set high enough that 85 percent of drivers do not exceed them. Since it is common knowledge and documented fact that most of us speed on a daily basis, we know, beyond any doubt, that speed limits are not set at 85th percentile speeds in compliance with the MUTCD.

For example: If 55 mph limits on four-lane highways were really 85th percentile speed limits, that would mean 85 percent of drivers would willingly choose to do 55 or under, with a scant 15 percent exceeding 55. Instead, we have are 5th or 10 percentile limits, meaning only 5 or 10 percent of us travel at or under the current limits. The point is that going 74 mph on a four-lane highway is perfectly normal 85th percentile behavior; so therefore, the precipitating “offense” that gave rise to this entire case never really existed to begin with.

Or didn’t anybody stop to think of that?

TOM DESABLA

Libertarian commentator/analyst

Tom deSabla radio show.

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