Nahmod Law

The Supreme Court once again strongly signaled that police officers are to be given maximum deference when sued for damages under section 1983 and the Fourth Amendment for using excessive force.

Background

On November 9, 2015, the Supreme Court handed down Mullinex v. Luna, 136 S. Ct. 305 (2015), which ruled on qualified immunity grounds in favor of a police officer who allegedly used deadly force in violation of the Fourth Amendment in a high-speed police chase situation.

An earlier decision, Plumhoff v. Rickard, 134 S. Ct. 2012 (2014), had ruled on the Fourth Amendment merits in favor of pursuing police officers who shot the driver and a passenger. See my post of May 28, 2014.

Both Plumhoff and Mullinex derive from the Court’s decision in Scott v. Harris, 550 U.S. 372 (2007), which ruled that a police officer did not violate the Fourth Amendment when he attempted to stop a fleeing driver from continuing his “public-endangering flight” by ramming the driver’s car from behind even though the officer’s actions created the risk of serious injury or death to the driver. According to the Court in Scott, a video of the chase made clear that the officer’s ramming of the car was objectively reasonable.

Mullinex v. Luna

Mullinex, an 8-1 per curiam decision (with Justice Scalia concurring in the judgment and Justice Sotomayor dissenting) involved a reportedly intoxicated driver who sped off in his car after being informed by a state trooper that he was the subject of an arrest warrant. He led officers on an interstate chase at speeds between 85-110 miles per hour and, during the course of the chase, warned officers by phone that he had a gun and would shoot the pursuing officers if they did not stop chasing him. Several officers set up a spike strip to stop the driver while another trooper, the defendant, considered another tactic: shooting at the car in order to disable it. Although the defendant did not have training in this tactic, he received preliminary approval from his supervisor to make the attempt if necessary.

Shortly after the defendant took up his shooting position, he spotted the car, with a trooper in pursuit, approaching the overpass where he was standing. Another officer was located beneath the underpass as well. Without waiting to see if the spike strip would work, the defendant fired six shots. The car thereafter engaged the spike strip, hit the median and rolled over several times. It became clear later that the driver had been killed by the defendant’s shots and that none of the shots had hit the car’s radiator, hood or engine block.

At trial, the district court denied the defendant’s qualified immunity motion for summary judgment and this was affirmed by the Fifth Circuit on denial of petition for rehearing en banc, seven judges dissenting.

The Supreme Court reversed per curiam, pointing out that it was not reaching the Fourth Amendment merits but instead deciding on qualified immunity grounds. The Court emphasized the need for particularity in the making the qualified immunity determination, warning against too high a level of generality. Specifically, according to the Court, the Fifth Circuit erred in ruling that the defendant violated the clearly settled rule that a police officer may not “use deadly force against a fleeing felon who does not pose a sufficient threat to harm to the officer or others.” This rule, derived from the Fourth Amendment deadly force case of Tennessee v. Garner, 471 U.S. 1 (1985), was not the correct qualified immunity test for excessive force cases.

Rather, as discussed in Brosseau v. Haugen, 543 U.S. 194 (2004)(per curiam), the correct qualified immunity inquiry in excessive force cases was whether it was clearly established that the Fourth Amendment prohibited the officer’s conduct in the particular situation he or she encountered. In Mullinex itself, existing precedent was “hazy” about the situation encountered by the defendant here: “a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road.” The Court maintained that “[t]he general principle that deadly force requires a sufficient threat hardly settles the matter.”

In short, none of the Court’s Fourth Amendment precedents, including Scott and Plumhoff, “squarely govern[ed]” the facts here. Furthermore, the dissent’s emphasis on the availability of spike strips as an alternative means of ending the chase was not persuasive on the qualified immunity issue: no Supreme Court decision had ever denied qualified immunity on this basis. Moreover, the circuit decisions relied on by the Fifth Circuit and the plaintiffs were “simply too factually distinct to speak clearly to the specific circumstances here.”

For these reasons, the defendant was entitled to qualified immunity.

Justice Scalia concurred in the judgment, contending that since the defendant shot at the car’s engine in order to stop the car, it was misleading to describe what happened here as the application of deadly force in effecting an arrest.

Justice Sotomayor dissented, arguing that the defendant’s conduct was “rogue” and it violated clearly established Fourth Amendment law. He should not have fired the shots without any training in the tactic, against the wait order of his superior officer and a second before the car hit spike strips that were intended to stop it.

Comments

1. The Court in Mullinex did not address the Fourth Amendment merits, which is the first line of defense in section 1983 cases. Instead, the Court skipped to qualified immunity, the second line of defense which, as seen in Mullinex itself, adds a significant layer of protection for section 1983 defendants.

2. The scope of qualified immunity protection in Fourth Amendment excessive force cases involving high-speed police chases is obviously quite broad. The Court insists on a high degree of factual similarity in the relevant case law for clearly settled law purposes.

3. The qualified immunity clearly settled law inquiry is a question of law for the court. This point is explicitly made by the Court in its discussion of the Fifth Circuit’s decision. This is not new.

4. Mullinex makes clear that the availability of potentially less deadly alternatives does not necessarily strip qualified immunity protection from police officers in high-speed chase situations.

5.  Supreme Court decisions often serve to communicate or signal a specific message to affected institutions. Mullinex signals to the law enforcement community that qualified immunity protects all but the plainly incompetent.

For much more on qualified immunity, consult chapter 8 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION (4th ed. 2015)(West).

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