U.S. Supreme Court (courtesy spokane-news.com)

forcescience.org writes:

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.

REASONABLE?

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:

DOCTRINE DEFINED

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.”

ATTORNEYS’ VIEWS

“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!

RELATED ARTICLESMORE FROM AUTHOR

49 COMMENTS

    • well, shooting a a vehicle from an elevated position, coming at you at a closing speed of 80-100 mph… And if we knew the distance of the shots (50 yds… 25… 100…) You have to lead the vehicle in any case. He could have been aiming at the bumper/hood, or leading it slightly (but not enough). If he had never fired at a vehicle closing on him he wouldnt really know how far to lead it, would he.

      I am not saying the decision from the judges or the officer conduct is right or wrong. just not going to say he was aiming for a guy because too much here is unkown.

      • Yup, that’s what I was thinking. I don’t know how many people here have tried shooting at a vehicle going 100mph ‘IRL’ but, depending on the distance, the aimpoint will be lower.

        • st the range of the shot (like most LEO shoots, even with a rifle) the hold low wont really come into play. a 60-100 yard shot, even at a steep angle, at best is only going to change the point of impact by an inch or so. you need some distance (200+ yards and steep) for that to really start to come into play

          But ignoring that.
          A vehicle at 80MPH is moving at about 117 feet per second. Lets say he shot with an AR that will close a 60 yard shot distance in about 1/16th a second and 125yds in an 1/8th. 50-125 yards being about the max shot he would take. That means the car would have moved between 7 and 15 feet from the time the bullet left the barrel till the time it hit the car. Hard to say if the guy is a fantastic shot, used to shooting and leading a target going that fast, OR he has NO IDEA how much to lead a speeding automobile and aimed for the grill… and 7-8 foot later hit the windshield and the driver. I’m guessing the later.

          know how most leos shoot and how much practice they get. I am thinking he didnt lead the vehicle at all.

        • You also aim lower if you’re firing from an elevated position. He would have needed a lot of lead to hit the radiator and engine block. I wouldn’t have tried it.

      • I’m not saying he was wrong by shooting the guy, I think it was the right choice. But there probably wouldn’t of even been a court case if he just said that’s what he was trying to do in the first place.

      • Exactly. 100mph ~150fps. I don’t know what the rifle was, but assuming it was 5.56 ~2000fps, and assuming ~500ft distance, the car moves ~38ft during flight. Assuming a large boat of a car, if aiming at the center of the hood you are looking at ~8ft from one to the other. This can get to ~4ft with normal sized modern sedans or even less with hatchbacks. The fact that he hit that close at all is a bit surprising really. Ironically, the further away from the overpass, the less that would affect the target due to the angle of attack being closer to zero. I can 100% see how someone even highly trained could miss the engine block of a car.

    • Wasn’t this the guy who got bad fitness reports saying he was not proactive enough and wasnt he heard saying something like “How about that for proactive’ after taking out the suspect?

      I gotta say, at those speeds 4 out of 6 hits is pretty damn good.

    • He was firing at a vehicle moving at 100mph while doubtlessly running on adrenaline. If he misjudged the lead just slightly, or even neglected to lead the target in the heat of the moment, rounds intended for the radiator or engine block would have hit the driver. Honestly, I’m impressed that four of six were on target given the circumstances.
      This guy was an imminent threat to officers and the public. I call it a good shoot.

  2. One relevant takeaway: cars are just as, if not more dangerous, than guns. We all know this, but apparently the appellate court does not (luckily the Supreme Court does).

      • It was obviously a general statement, not specifically talking about the incident in the article. Although I would argue a drunk, possible armed suspect driving 100+ miles with no intentions of stopping is as dangerous as randomly firing shots in the air without any regard for who is around you.

  3. ‘…as a suspect tried to flee arrest on an outstanding warrant at speeds between 85 and 110 mph.’

    There’s your first problem. If you’re going to flee from the cops you need a little more than 110mph under the hood.

    • Running from the cops is never a good plan. Calling the cop shop while you’re running from the cops and telling them to back off or you’re going to shoot them crosses over into looney land. And these was Texas cops.

      Old fashioned case of suicide by cop.

      • No argument here, but if you do insist on running from the cops your odds are better if you’re capable of doing say, 165mph than if your ride will only do 110mph. Most any cop car will do 110. If it’s clear they can’t keep up and they don’t have any aerial assets in the vicinity you’re probably home free. Chase will be over in a couple of minutes. Now as far as doing 165mph at night, well, let’s just hope there’s not a lot of deer in your neck of the woods. For the deer’s sake.

        • My last motorcycle would easily triple the speed limit. I got pulled over on a back country road for 72 in a 55 by the sheriff of a neighboring county. First thing he said to me was he couldn’t believe I pulled over. Apparently most of the punk kids in the area bolt at the first sight of a cop. I acknowledged that my bike wasn’t as fast as his Motorola and he ended up letting me off because I hadn’t had a ticket in 4 or 5 years (and I wasn’t a punk kid anymore). Be polite and they’ll write you up for within 10mph and that’s just a $114 ticket around here (3 1/2 years ago anyway), so there’s no way I’m bolting over $100.

          But… if I had been motivated to flee odds of being caught would have been almost zero. Depends on where you’re at. If you’re in an urban area that Motorola is a lot more effective. They’ll probably be able to track you from the air. Out in the styx there’s not much they can do if your vehicle goes 50mph faster than theirs. 110mph won’t cut it though.

  4. Mandatory reminder that Bill Lewinski @ FSI is an unqualified hack who acquired his “credentials” from a diploma mill.

    • Mandatory reminder that S.T. has been banned multiple times due to unsubstantiated claims and general trolling.

        • ST,
          you make no beef with the info in the article, or what is wrong with it, but just seem to have a beef with the guy you mentioned. That furthers a discussion here how?

          if it isnt furthering the conversation… its trolling.

        • Pointing out that TTAG repeatedly gives publishing space to a proven fraud is trolling? His “studies” have been roundly criticized by credentialed academic psychologists and yet TTAG continues to publish his drivel.

          Is Bill Lewinski paying for this? He charges $1000 an hour to give “expert testimony” so he can certainly afford to advertise.

      • http://www.cbc.ca/news/canada/british-columbia/reliance-on-expert-in-b-c-police-shooting-under-scrutiny-1.1181265

        http://nymag.com/scienceofus/2015/08/junk-science-and-police-shootings.html

        http://www.nytimes.com/2015/08/02/us/training-officers-to-shoot-first-and-he-will-answer-questions-later.html

        “Because he published in a police magazine and not a scientific journal, Dr. Lewinski was not subjected to the peer-review process. But in separate cases in 2011 and 2012, the Justice Department and a private lawyer asked Lisa Fournier, a Washington State University professor and an American Journal of Psychology editor, to review Dr. Lewinski’s studies. She said they lacked basic elements of legitimate research, such as control groups, and drew conclusions that were unsupported by the data.”

        But… but… unsubstantiated claims…. 🙂

        • You have a dissenting opinion from one person that doesn’t provide any specific examples of how Lewinski is wrong.

          Proof? Nah.

        • Well according to real experts, Lewinski’s studies are bogus, his conclusions are in doubt, and his purported status as an expert is laughable.

          In the context of OP’s post, Lewinski did not provide original insight, he merely parroted his own talking points on how to exploit judicial friendliness to the maximum extent. He’s correct in that case: the law is extremely friendly towards police. But that doesn’t change the fact that Lewinski is a repulsive hack who makes a living by using pseudoscience to get murderous cops back on the streets and collecting taxpayer funded paychecks.

    • I have no love lost for psychologists or psychiatrists, however, from Wikipedia:

      “[Bill] Lewinski has a doctorate in psychology from Union Institute & University, an online college.[14] His company, “Force Science Institute,” specializes in damage control for police departments….”

      “Union Institute & University (UI&U) is a private, non-profit university that specializes in limited residence and distance learning programs. It receives regional accreditation from The Higher Learning Commission of the North Central Association of Colleges and Schools, and as of this date,[when?] enrolls approximately 2,000 students from across the United States. Its main campus is in Cincinnati, Ohio, and it operates satellite campuses located in Vermont, Florida, and California.”

    • Jeez, sex trex??! Last time i saw you i haven’t started posting on TTAG yet. I always wondered where the heck did this dude go? Can’t believe i have a chance to reply to you now! You’re like justin bieber to me! My star! Yea! Go, Sex TRex!

      This reply is for the sake of replying.

  5. In the damned if you do, damned if you don’t column; I would only caution officers in the future not to wedge themselves into a situation that creates a coffin-corner of decision making [i.e., the superior vantage point (the bridge) chosen by the officer, also limited his decision making time to momentary action].

    The officer took the action he did because of the position he put himself in.

    • He wedged himself into the situation of being totally immune from being struck by the vehicle, and decided to disobey or ignore a direct order and opened fire?

      That’s some coffin corner.

  6. The cop fired six shots at the car intending to disable it, didn’t put a single round into the engine but hit the driver four times? Actually, given the marksmanship of most cops, that sounds quite likely.

    • Rolling the car two and a half times certainly disabled it. Shooting the nut behind the wheel helped in the disablement department.

  7. Who is “Bill Lewinski” and why is he relevant? Is he an expert on this subject? Does he have a lot of money and a drop dead gorgeous wife? Is he really really smart and tough”…and how did I get this beautiful wife and this beautiful house…” Oy vey

    • Dunno, don’t care. Apparently some people get their knickers in a twist cause the post originates with him. Is it an accurate account of the scotus ruling? That’s all that matters.

      Whiners gotta whine.

      • >all but the plainly incompetent or those who knowingly violate the law
        >cop either deliberately ignored or entirely missed a direct order from a superior officer, so that’s one or the other
        >but the suspect made threats so its totally legal

        Your ‘good account’ contained no legal analysis, it merely celebrated the existence of this legal gray zone and encouraged cops to test the boundaries of a favorable legal environment. Unsurprisingly, this is where Mr. Lewinski makes his living.

        The least TTAG can do is put up a “Sponsored Content” label, for editorial honesty.

  8. I have to disagree. I support the principle but given that the police officer knew that spike strips were on the road, I do not believe that potentially lethal force (shooting at a car’s engine is still shooting at the car and presumably its occupants) should not have been called for unless the officer reasonably believed that the spike strips would not have stopped the car and there was considerable risk to other police officers and the general public by failing to stop the car and driver.

    I support giving police officers the benefit of the doubt. “Detached reflection cannot be demanded in the presence of an uplifted knife.” Brown vs US (1921).

    • Except Brown vs US was dealing with a regular guy defending himself, not a cop. And modern jurisprudence has only extended this benefit of qualified immunity (and massively so) to police. Good luck pulling the same stunt if you’re a civilian.

      • I never said or implied that this decision has anything to do with self-defense in a civilian context. You clearly did not read or did not understand what I wrote.

  9. I’ve never really understood the whole concept of “trolling.” If someone posts a comment that you think is totally out in left field, total b.s., plainly meant to be inflammatory or whatever, you know you don’t have to respond, right? It’s like an escalating fight with your wife–just bite your tongue in the first place and they’ll likely go away, then you can get on with life. No one’s forcing you to respond. If you do, you brought the heartburn on on yourself.

  10. I can guarantee the next time a cop blows one of us away by mistake based on a swatting call, Mullinex will be the cornerstone of the successful defendant’s summary judgment motion. And back in the Corps, and the several police forces I dealt with, “I didn’t hear the order, Sir” was unacceptable.

    Looks like one more law enforcement carveout from here.

  11. “he argues that the trooper didn’t really use deadly force in this instance because he was aiming at the vehicle, not the driver!”

    Yeah no, sorry. That is dumb. Intent matters, but firing a rifle at a car will always be deadly force.

    • What did you expect out of a goose-stepping statist judge who actually cited the “new professionalism” of police as an excuse to give them new powers to crap on the Constitution?

  12. Oh Farago, giving space to that #Quacademic… the non-cocksucking but CopSUCKING Lewinsky, again??

    xD

    Damn, the Nazis sure shouldn’t have had the Wannsee Conference to off a few of Lewinsky’s ancestors; had this Lewinsky been around then, he’d have #Quacademically provided a ‘scientific’ rationale as to why it was ‘legitimate and necessary’ his fellow Jews had to be wiped out in the manner they did, and that the SS and Dr. Mengele ‘needed’ to do what they needed to do… for “officer safety, and out of qualified immunity” and for the greater good.

    Goodwin’s Law be damned, Farago.

    xD

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