The Lawletter Vol 39 No 5
A law enforcement officer is entitled to qualified immunity for his or her unconstitutional actions if "the right at issue was 'clearly established' at the time of defendant's alleged misconduct." Pearson v. Callahan, 555 U.S. 223, 232 (2009). "It is clearly established that citizens have a Fourth Amendment right to be free from unreasonable seizures accomplished by excessive force." Valladares v. Cordero, 552 F.3d 384, 388 (4th Cir. 2009). But what is "unreasonable"?
As summarized by a federal district court:
In assessing claims of excessive force under the Fourth Amendment, the court must apply a standard of "objective reasonableness." Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). Specifically, the court must determine "whether a reasonable officer in the same circumstances would have concluded that a threat existed justifying the particular use of force." Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (citing Graham, 490 U.S. at 396-97, 109 S. Ct. 1865). This fact‑intensive balancing test must be applied in light of the fact that "police officers are often forced to make split‑second judgments—in circumstances that are tense, uncertain, and rapidly evolving— about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 397, 109 S. Ct. 1865.
Sloan v. Dulak, 868 F. Supp. 2d 535, 540 (W.D. Va. 2012).
Due to the fact-sensitive nature of the analysis, the existence or absence of analogous case law is crucial. In a recent decision, the U.S. Supreme Court provided yet another ruling on a police shooting incident to help in that regard. See Plumhoff v. Rickard, 134 S. Ct. 2012 (2014).
Around midnight on July 18, 2004, a West Memphis, Arkansas, police officer pulled over a vehicle driven by Rickard. As is relevant here, Rickard sped away and thus began a high-speed chase involving multiple police vehicles. Eventually, Rickard's car spun out into a parking lot and collided with one of the police cruisers. A couple of officers exited their cruisers, guns drawn, and ordered Rickard to exit his vehicle. Ignoring the officers' orders, Rickard continued his attempt to escape. Although one of the officers fired three shots into Rickard's vehicle, Rickard was nonetheless able to escape in his vehicle. However, other officers then fired a total of 12 shots toward Rickard's vehicle as it drove away. Shortly thereafter, Rickard crashed into a building and died from some combination of gunshot wounds and the collision.
Rickard's daughter then brought a civil suit pursuant to 42 U.S.C. § 1983 against several of the police officers, alleging excessive force. The officers moved for summary judgment based on qualified immunity. The district court denied the officers' motion, holding that their conduct violated clearly established Fourth Amendment law. The officers appealed but the Sixth Circuit affirmed. The U.S. Supreme Court granted the officers' petition for writ of certiorari.
The Plumhoff Court held first that it was not excessive for the police to use deadly force under the circumstances here. "[I]t is beyond serious dispute that Rickard's flight posed a grave public safety risk, and [thus] the police acted reasonably in using deadly force to end that risk." Id. at 2022.
The Court held second that it was not excessive for the police to fire a total of 15 rounds at Rickard and his vehicle. "[D]uring the 10-second span when all the shots were fired, Rickard never abandoned his attempt to flee. Indeed, even after all the shots had been fired, he managed to drive away and to continue driving until he crashed." Id. The Court held third that, even if there was a constitutional violation, the officers were entitled to summary judgment based on qualified immunity. The Court's decision in Brosseau v. Haugen, 543 U.S. 194 (2004), illustrates that as of February 1999, when the events at issue in Brosseau occurred, "it was not clearly established that it was unconstitutional to shoot a fleeing driver to protect those whom his flight might endanger." Plumhoff, 134 S. Ct. at 2023. However, the plaintiff here could not "meaningfully distinguish Brosseau," nor could she point to "a controlling case or a robust consensus of cases [decided between 1999 and 2004] that could be said to have clearly established the unconstitutionality of using lethal force to end a high-speed car chase." Id. at 2024 (internal quotation marks omitted).
Therefore, the U.S. Supreme Court reversed the Sixth Circuit decision and remanded the matter for entry of summary judgment in favor of the officers.