The U.S. Supreme Court recently decided a case involving fatal shots fired at a moving vehicle. Mullenix v. Luna provides an important reminder to officers about thoroughly articulating use of force and offers help to police lawyers in arguing qualified immunity cases. The case was decided 8-1 early in November in favor of a Texas trooper who killed a threatening suspect during a brief high-speed pursuit. [Click here for the full decision.] The shooting occurred nearly six years ago . . .
during a nighttime, 18-minute chase on I-27 in north Texas as a suspect tried to flee arrest on an outstanding warrant at speeds between 85 and 110 mph.
As responders from multiple agencies joined in, the driver twice called a police dispatcher, “claiming to have a gun and threatening to shoot at officers if they did not abandon their pursuit,” according to the court’s recap of the encounter. The dispatcher relayed this warning “to all concerned officers,” along with the impression that the suspect “might be intoxicated.”
Tire spikes were set up at three locations, the first beneath an overpass at the aptly named Cemetery Rd. A trooper armed with a rifle took a position on the overpass, 20 feet above the interstate, and anticipating the suspect’s approach contemplated shooting at the car “in order to disable it.” He had “not received training in this tactic and had not attempted it before,” the court notes.
His supervisor advised him to “stand by” and “see if the spikes work first,” but the trooper claimed later he didn’t hear this advisory.
Moments later, the suspect’s car roared into view. As it closed on the overpass at 85 mph, the trooper squeezed off six shots, intending to hit the engine block. Instead, four bullets slammed into the suspect’s upper body. The car “engaged the spike strip, hit the median, and rolled two and a half times,” the driver dead from the trooper’s rounds. “There was no evidence that any of [his] shots hit the car’s radiator, hood, or engine block,” the court says.
Inevitably, the suspect’s survivors filed a federal 1983 lawsuit, claiming the trooper had violated the driver’s constitutional rights “by using excessive force.”
The district court denied a motion by the trooper’s attorney for summary judgment on the ground of qualified immunity, ruling that there were “genuine issues of fact as to whether [the trooper] acted recklessly, or acted as a reasonable, trained peace officer would have acted in the same or similar circumstances.”
An appellate majority subsequently agreed that the lawsuit should go forward, concluding that the trooper’s use of deadly force was “objectively unreasonable” and violated the suspect’s Fourth Amendment rights. The court pointed out that there were “no innocent bystanders” in jeopardy when he fired, the suspect’s “driving was relatively controlled,” the trooper had not given the “spike strips a chance to work,” and his ultimate decision “was not a split-second judgment.”
The law, the appellate decision stated, is “clearly established” that an officer may not “use deadly force against a fleeing felon who does not pose a sufficient threat of harm to the officer or others.”
Now the Supreme Court has reversed that finding, ruling that the trooper is entitled to qualified immunity shielding him from civil liability in lieu of a trial. Here’s the Court’s reasoning:
Put simply, the Court says, the doctrine of qualified immunity is intended to protect “all but the plainly incompetent or those who knowingly violate the law.”
A “clearly established” law or constitutional right must be one that is so sharply defined that “every reasonable official would [understand] that what he is doing violates that right…beyond debate,” the Court explains (emphasis added).
“The general principle that deadly force requires a sufficient threat hardly settles this matter… We have repeatedly told [lower] courts [in weighing qualified immunity] not to define clearly established law at a high level of generality.” The key question is “whether the violative nature of particularconduct is clearly established.” In other words, what matters is “the specific context of the case, not a broad general proposition.”
The specifics of this case, ranging from the suspect’s repeated threats to kill officers to the dangerous uncertainties of relying on unpredictable spike strips, made it impossible to say that the trooper acted “plainly incompetent” or “knowingly violate[d] the law,” the Court says.
“The Court has never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity….
“Qualified immunity protects actions in the ‘hazy border between excessive and acceptable force.’… [W]hatever can be said of the wisdom of [the trooper’s] choice, this Court’s [legal] precedents do not place the conclusion that he acted unreasonably in these circumstances ‘beyond debate.’…
“The fact is that when [the trooper] fired, he reasonably understood [the suspect] to be a fugitive fleeing arrest at speeds over 100 miles per hour, who was armed and possibly intoxicated, who had threatened to kill any officer he saw if the police did not abandon their pursuit, and who was racing towards [an officer’s] position.”
“This case by no means gives officers blanket approval to shoot at moving vehicles,” police attorney Laura Scarry told Force Science News. “It’s not a ‘bright line’ case in terms of defining specifically what officers can and can’t do in that circumstance.
“But I like it because it stresses the absolute importance of good articulation. As an officer, you have to be able to explain in detail why you took the action you did in a force situation, and the trooper in this instance was able to explain the potential dangers that prompted him to shoot.
“The Supreme Court is strongly reminding lower courts that force has to be assessed on the basis of particulars in any given situation, not on the basis of some one-size-fits-all generality.”
Scott Wood observes: “Judges are not shielded from what’s going on in the world and what they see on TV. From time to time, they may drift away from the specific guidelines given them by the Supreme Court.
“In this case, the Court reminded them that objective reasonableness regarding the use of force must be judged on the totality of circumstances. If it was reasonable for the officer to believe what he did and act as he did in a given incident, then the officer should be granted qualified immunity to liability.
“Qualified immunity at the district court level does not seem as easy to obtain these days as it was four or five years ago. This case can be helpful to lawyers defending officers against allegations of excessive force because its language clearly reinforces the precedents favoring immunity that have been established by the Supreme Court and that attorneys need to incorporate in their arguments.”
In reading the full Court decision, police attorneys also may find instructive, as well as entertaining, the rebuttal the majority of justices gave to liberal associate justice Sonia Sotomayor, the sole dissenter, who attacked what she called the trooper’s “rogue conduct and ” ‘shoot first, think later’ approach to policing.”
An interesting counterbalance to her dissent is a separate opinion, concurring with the majority, by associate justice Antonin Scalia, in which he argues that the trooper didn’t really use deadly force in this instance because he was aiming at the vehicle, not the driver!