By Lalit K. Loomba, Esq. of Wilson Elser
The past several years have seen a slew of high-profile excessive force cases, often highlighted by cell phone or dash-cam video. These cases have placed increasing pressure on local police departments, which continue to struggle with balancing the public interest in community safety against the individual rights of suspects on the street. At the highest level of the legal landscape, however, the United States Supreme Court recently issued a decision favorable to police officers that arguably expands the qualified immunity defense, at least in certain kinds of deadly force cases.
Mullenix v. Luna, 577 U.S. __ (2015), decided November 9, 2015, involved a high-speed chase in Tulia, Texas. The subject of an arrest warrant led police on a 25-mile chase at speeds between 85 and 110 mph. During the chase, the suspect twice called the police dispatcher and warned that he was armed and intended to shoot any officer who attempted to stop him. The dispatcher passed this information along to all responding officers, along with the fact that the suspect appeared intoxicated. While two officers chased the suspect, other officers set up “spike strips,” which are intended to puncture tires and stop a vehicle. One of the spike strips was set up beneath a bridge and officers manned positions nearby waiting for the suspect’s vehicle to approach.
As this was happening, another officer, Trooper Chadrin Mullenix, considered another tactic: shooting directly at the suspect’s car to disable it. Trooper Mullenix took a position on top of the bridge, and as the suspect’s vehicle approached fired six shots. According to the plaintiff, the officer shot before he received confirmation from his supervising officer to go forward with the plan. In any event, the car continued forward and engaged the spike strip, hit the median and rolled over two and a half times. It was later determined that the suspect was killed by Mullenix’s shots, four of which struck him in the upper body.
The suspect’s estate commenced an action pursuant to 42 U.S.C. §1983, alleging that Mullenix had used excessive force in violation of the suspect’s Fourth Amendment rights. Mullenix moved for summary judgment on grounds of qualified immunity, but the district court denied the motion finding there were outstanding questions of fact. The Fifth Circuit affirmed, agreeing that there was a question of fact as to whether the risk posed by the suspect was “immediate.” The U.S. Supreme Court accepted certiorari and reversed.
The Supreme Court’s Rationale
Qualified immunity, the Supreme Court observed, shields officials from civil liability so long as their conduct does not violate “clearly established” rights of which a reasonable person should be aware. “A clearly established right,” the Court noted, “is one that is sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Put simply, the Court concluded, “qualified immunity protects all but the plainly incompetent or those who knowingly violate the law.”
The Court cautioned that whether a right is “clearly established” must not be defined at a “high level of generality.” For example, in an excessive force context, it is not enough to cite the general proposition that use of excessive force violates the Fourth Amendment. Instead, the Court held that the “dispositive question is whether the violative nature of particular conduct is clearly established.” The Court further observed: “Such specificity is especially important in the Fourth Amendment context, where … it is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts.”
Applying this standard, the Court found that Trooper Mullenix was entitled to qualified immunity. The Court focused particularly on the fact that the suspect had twice called police to warn that he would shoot any officer who attempted to prevent his escape, and that the suspect was rapidly approaching the position of officers beneath the bridge who were manning the spike strip. As the Court explained, “by the time Mullenix fired, [the suspect] had led police on a 25-mile chase at extremely high speeds, was reportedly intoxicated, had twice threatened to shoot officers, and was racing towards an officer’s location.” Given this conduct, the Court could not conclude that “only someone plainly incompetent or who knowingly violates the law” would have made the same decision as Trooper Mullenix regarding the use of force. Mullenix was therefore entitled to the defense of qualified immunity.
It remains to be seen whether the Mullenix decision will be applied outside the context of high-speed chases. Nevertheless, some general observations can be made at this time:
- First, by defining a clearly established right as one that “every reasonable officer” would find to be clear, the Court directly implied that if even one reasonable officer could disagree as to whether conduct violates a right, then the defense of qualified immunity should apply. This is a highly favorable formulation of the standard from an officer’s perspective.
- Second, as a general matter factually, complexity is an impediment to summary judgment. However, by cautioning courts not to resolve qualified immunity at a high level of generality, the Court arguably turned this “vice” into a “virtue” by allowing for arguments that point to the lack of preexisting precedent in the specific factual scenario at hand.
- Finally, the Court stressed officer safety above what might be seen as a rash decision by an officer to use deadly force. To this point, in a dissenting opinion, Justice Sotomayor expressed the view that Trooper Mullenix had blindly and recklessly shot at a moving vehicle without giving the spike strip a chance to work. The majority opinion, issued per curium, put that concern to one side and focused instead on the risk to the officers stationed near the spike strip.
One final point: The Mullenix decision twice cited an amicus curiae submitted by the National Association of Police Organizations, at one point even suggesting that the authors of that brief had “more experience” than the dissenting justice.