- Did the Sixth Circuit wrongly deny qualified immunity to police officers by basing its decision on subsequent case law rather than clearly established law at the time the police officers used force?
- Did the Sixth Circuit err in denying qualified immunity by finding the use of force was not reasonable as a matter of law when police officers were involved in a high-speed pursuit of a suspect who, when surrounded, tried to escape by nearly hitting some of the officers?
Around midnight on July 18, 1994, West Memphis police officer Joseph Forthman stopped a white Honda Accord for a broken headlight. Donald Rickard was the driver of the Honda and Kelly Allen, the passenger. After noticing an indentation in the windshield and Rickard’s erratic behavior, Forthman requested that Rickard step out of the vehicle. Rickard instead fled, leading to a high-speed pursuit by several officers across state lines into Memphis, Tennessee. After crashing into several vehicles, Rickard’s Honda was shot at fifteen times as he was driving away from the officers in a final attempt to escape. Rickard lost control and hit a building resulting in fatal injuries to both driver and passenger. The District Court for the Western District of Tennessee denied the police officers’ motion for summary judgment based on qualified immunity. The Court of Appeals for the Sixth Circuit affirmed the judgment. The United States Supreme Court will consider whether the Sixth Circuit correctly relied upon case law decided subsequent to the officer’s actions or whether the court was required to consider only case law clearly prohibiting the use of lethal force at the time the event occurred. The Supreme Court will also decide whether the Sixth Circuit erred in denying qualified immunity as a matter of law. The Court’s decision will implicate the limits on the use of force by peace officers as they carry out their duties and the rights of suspects to be free from excessive force.
Questions as Framed for the Court by the Parties
- Whether the Sixth Circuit wrongly denied qualified immunity to the petitioners by analyzing whether the force used in 2004 was distinguishable from factually similar force ruled permissible three years later in Scott v. Harris. Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used.
- Whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under the respondent's own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made contact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process.
Around midnight on July 18, 1994, West Memphis Police Officer Joseph Forthman initiated a traffic stop of a white Honda because it had an inoperable headlight. Donald Rickard and Kelly Allen were driver and passenger, respectively. When Officer Forthman approached the car, he inquired about a large indentation in the windshield and Rickard said that the car had hit a curb. After noticing that Rickard seemed nervous, Officer Forthman requested that Rickard step out of the vehicle, at which point Rickard fled in the vehicle. Officer Forthman gave chase and was joined by Officers Vance Plumhoff, Jimmy Evans, Lance Ellis, Tory Galtelli, and John Gardner.
Rickard took Interstate 40 heading east across the Mississippi River into Memphis, Tennessee. On the bridge, Rickard attempted to ram several vehicles thus giving rise to assault charges. Rickard then exited the highway and struck a police vehicle, causing Rickard to spin around and collide with Officer Plumhoff head on. Officers formed a semicircle around Rickard but Rickard reversed and hit Officer Gardner’s unit. Officer Plumhoff, who was near the passenger’s side, reacted by firing three shots. Rickard reversed and tried to drive away but almost ran over Officer Ellis in the process. Officer Gardner fired an additional ten shots as the vehicle drove away. Rickard then lost control and crashed into a building, killing himself and passenger Kelly Allen.
Allen’s estate and Whitne Rickard, Rickard’s daughter, brought suit in the United States District Court for the Western District of Tennessee against the West Memphis police officers for excessive use of force under 42 U.S.C. § 1983, as well as tort claims arising under the laws of Arkansas and Tennessee. The police officers filed a motion for summary judgment claiming qualified immunity. The district court denied the motion for summary judgment on the excessive force claim, finding that Rickard had clearly established his right to be free of excessive force. But the district court granted the police officers’ motion with regards to Allen’s excessive force claim because their actions occurred while in pursuit of a legitimate government purpose. Moreover, the court granted the officer’s motion on the state claims of malicious harassment, the claims under the Tennessee Constitution, and the assault and battery claims, but denied all others. The officers appealed to the United States Court of Appeals for the Sixth Circuit. And the Sixth Circuit affirmed.
The Supreme Court granted certiorari on November 15, 2013 to decide whether subsequent decisions support qualified immunity for the officers as opposed to clearly prohibiting the use of such force at the time of the event. The Court will also decide whether the Sixth Circuit erred in denying qualified immunity because the force was unreasonable as a matter of law.
This case presents the Supreme Court with the opportunity to consider whether officers in a high-speed pursuit of an unarmed driver might be entitled to qualified immunity as a matter of law. Plumhoff argues that officers should be permitted to fire their weapons at a fleeting motorist who presents a risk of injury or death to others. Rickard argues that an unarmed fleeing suspect does not present such a grave threat so as to deem deadly force reasonable. The Supreme Court’s decision in this case implicates protection for police officers patrolling the streets and also protection for the public from police brutality.
SHOULD COPS JUST LET SUSPECTS ESCAPE?
Plumhoff argues that ceasing the pursuit of a suspect will not guarantee the elimination of dangers to others. First, there is no way for the officers to communicate to the fleeing suspect that they have given up on their pursuit, so the suspect will continue to recklessly race through the streets, presenting a danger to drivers and pedestrians alike. Plumhoff further argues that forcing officers to stop the pursuit of fleeing suspects, especially those who have threatened the officers with their vehicles, might create perverse incentives. Therefore, Plumhoff argues that an officer’s attempt to terminate a dangerous high-speed chase that puts in danger the safety of bystanders should take precedent over the risk of serious injury or death of the motorist as a matter of law.
Rickard counters that there is a significant difference in the level of acceptable force that the police can use to stop a fleeing suspect. Rickard argues that ramming a vehicle to stop a fleeing suspect is a more acceptable degree of force for stopping a suspect than shooting at the vehicle because the degree of certainty of death is much higher in the latter. Rickard thus contends that as a matter of law the police should not receive qualified immunity when they shoot at a suspect that poses no immediate threat to them or to others. Rickard argues that on balance, the failure to apprehend a suspect does not create a risk that justifies of the use of deadly force.
A ONE-SIZE-FITS-ALL RULE
The United States argues that qualified immunity is important in order to ensure that officials can carry out their duties without the constant fear of lawsuits and liability. This, the United States argues, ensures the willingness of capable individuals to work in the public sector and carry out their official responsibilities without the constant threat of litigation. The United States further argues that police officers need some “breathing room” in the context of excessive force because judicial decisions have not established a clear line of what constitutes acceptable and excessive force, especially when the suspected car itself can become a deadly weapon instantly.
Rickard counters Plumhoff would have the Court institute a one-size-fits-all rule for excessive force. Instead, Rickard argues, the query to determine excessive force cases must be fact specific. This fact-specific inquiry would protect suspects from excessive force by denying officers the right to claim that fleeing constitutes a carte blanche justification to use virtually any degree of force to stop a suspect simply because the suspect has fled. Therefore, a better approach would be to analyze the facts and circumstances under each case to determine what reasonable means in every instance.
The Supreme Court will clarify whether a police officer is entitled to qualified immunity from a Fourth Amendment excessive-force lawsuit where the officer pursued a suspect in a high-speed chase and killed the suspect with gunfire. Qualified immunity shields police officers from money damages, unless a plaintiff can establish the following elements: (1) the case law “clearly established” that a given level of force is unlawful; and (2) the police officer used an unreasonable level of force that violated this case law.
Plumhoff claims that the case law at the time of his conduct did not “clearly establish” his use of force was unlawful. Plumhoff also claims that, to the extent that the case law was clear, he did not use an unreasonable level of force.
Rickard claims that the case law did “clearly establish” that Plumhoff’s use of force was unlawful. Rickard also claims that Plumhoff did use an unreasonable level of force.
“CLEARLY ESTABLISHED” LEVEL OF FORCE
Plumhoff claims that the relevant case law at the time of his conduct did not “clearly establish” his use of force was a violation of Rickard’s Fourth Amendment rights. Plumhoff argues that the lower court failed to correctly analyze the “clearly established” prong of the qualified immunity doctrine. Specifically, Plumhoff argues that the lower court should have looked at the case precedent from factually similar cases to determine whether the case law actually “clearly established” that Plumhoff’s use of force was unlawful. Plumhoff also argues that case precedent from jurisdictions, which are unrelated to the facts of this case, should not be considered.
Plumhoff further argues that the lower court should not have considered subsequent case law that was unavailable to police officers at the time of the incident. Plumhoff cites Supreme Court precedent, which stated that a conduct is “clearly established” as unlawful if a reasonable officer would realize that his conduct was unlawful in a given situation. But Plumhoff argues that the case law at the time of his conduct did not put reasonable officers on notice that the specific undisputed conduct in this case violates a suspect’s Fourth Amendment rights. Specifically, Plumhoff argues that Brosseau v. Haugen shows that the law was not clearly established because, in that case, the Supreme Court held that there was no “clearly established” rule regarding the lawfulness of shooting a felon, who seeks to avoid capture through vehicular flight, when persons in the immediate area are put at risk.
Rickard, responds that the Sixth Circuit did not err in affirming that the law at the time of his use of force was a violation of Rickard’s Fourth Amendment rights. Rickard argues that the lower court did correctly analyze the qualified immunity doctrine and did properly find that her father’s constitutional right to be free from excessive force was clearly established.
Further, Rickard argues that the lower court did not have to consider future case law that was temporally unavailable to police officers at the time of the incident. Rickard argues that the right to be free from excessive force was clearly established long before Plumhoff’s conduct occurred. Rickard states that the case precedent makes clear that it is unreasonable to seize an unarmed suspect by shooting him dead. Specifically, Rickard argues that Brousseau shows that the law was clearly established because, in that case, the Supreme Court found that the firing of one shot at a suspect attempting to flee in a vehicle was within the “hazy border” between acceptable and excessive force. Rickard argues that, if Brousseau held that one gunshot falls in the “hazy border,” Brousseau clearly establishes that Plumhoff’s fifteen shots are unreasonable as a matter of law.
REASONABLE LEVEL OF FORCE
The “reasonable level of force” standard requires a balancing of the nature and quality of the officer’s intrusion on an individual’s Fourth Amendment interests against the governmental interests at stake. Plumhoff claims that his use of deadly force was an objectively reasonable response to Rickard’s decision to flee in a high-speed chase across state lines. Plumhoff argues that, given the danger Rickard posed to Plumhoff and the public, his actions were objectively reasonable. Rickard argues that, though Rickard posed a potential risk of injury or death to Plumhoff and the public, Plumhoff’s actions were unreasonable because the offcier’s actions posed a certainty of death via gunfire.
First, Plumhoff argues that his case is factually similar to the case Scott v. Harris, where the Supreme Court held that an officer’s use of deadly force via ramming the suspect’s car is objectively reasonable. Plumhoff broadly reads the Scott holding to permit officers to terminate a dangerous chase by means that are likely to cause serious physical injury or death due to the number of innocent lives at risk.
Rickard counters that Plumhoff’s case is not factually similar to Scott. Rickard argues that, although both Scott and Plumhoff’s case did have a chase in common, the force ultimately at issue here is gunfire, not ramming. Rickard notes that, although Scott held that the ramming of a suspect vehicle in a chase was reasonable, the court made clear that shooting a suspect is different from a vehicular ramming due to the greater certainty of death likely to result from the firing of shots into a moving suspect vehicle.
Second, Plumhoff also argues that his actions are objectively reasonable under the case Tennessee v. Garner, where the Supreme Court held that the use of deadly force is permissible upon properly balancing the fleeing suspect’s interest in his own life against the public and law-enforcement interests in preventing escape of a fleeing felon. Plumhoff argues that Rickard was a fleeing felon, who wielded his Honda as a deadly weapon and intended to never be captured, and in doing so, Rickard employed force against officers and posed a continuing threat. Thus, Plumhoff’s use of deadly force to stop Rickard was objectively reasonable.
Rickard, however, argues that Plumhoff’s actions would not be objectively reasonable under Garner. Rickard argues that the Garner court also indicated that it was constitutionally unreasonable to shoot an unarmed suspect dead from behind in order to prevent escape. Rickard argues that ruling for Plumhoff can be read as authority for the proposition that vehicular flight creates an automatic justification for the use of virtually unlimited deadly force by police. Thus, Plumhoff’s use of deadly force to shoot an unarmed suspect dead from behind in order to prevent the suspect’s escape is constitutionally unreasonable.
Finally, Plumhoff argues that as a matter of public policy, officers should not have to allow a suspect in a dangerous police chase to escape. Plumhoff argues that vehicular flights involve a dangerous felony as a matter of law and creates high risks of crashes.” Additionally, Plumhoff contends that allowing a suspect to escape after he threatens them with his vehicle is sure to create perverse incentives.
Rickard responds that attempts to compare various cases by their fact patterns, and to, a certain extent, by category (“chase cases” or “ramming cases” versus “shooting cases”) illustrates the inherent challenge in attempting to craft a one-size-fits-all rule. Rickard agrees that the qualified immunity analysis must necessarily involve some degree of fact specificity, but accepting Plumhoff’s one-size-fits-all rule would presumably allow a policeman to stop a vehicular chase by shooting not one gunshot, but as many as fifteen total gunshots, at a suspect.
In this case, the Supreme Court will address the interplay between a police officer’s right to qualified immunity and a citizen’s right to be free from excessive force. Officer Plumhoff claims that the case law at the time of his conduct did not “clearly establish” his use of force was unlawful. Plumhoff also claims that, to the extent that the case law was clear, he did not use an unreasonable level of force. Rickard claims that the case law did “clearly establish” that Plumhoff’s use of force was unlawful. Rickard also claims that Plumhoff did use an unreasonable level of force. The Supreme Court’s decision will pit the interests of an officer, who seeks qualified immunity from his actions while in the line of duty, against the interests of citizens, who seek protection from excessive and deadly police force.
- Lisa Soronen, In Hot Pursuit of Qualified Immunity, (Dec. 13, 2013).