Good To The Last Shot

Even when it’s beyond dispute that a police officer had no choice but to defend himself from deadly force, someone will question why.  Why did they have to shoot that many times?  The Supreme Court has now given a conclusive answer to the question: Because they can.

In Plumhoff v. Rickard, a quasi-unanimous Court rejected the claim that excessive force was used when Donald Rickard was shot. From the syllabus:

Donald Rickard led police officers on a high-speed car chase that came to a temporary halt when Rickard spun out into a parking lot. Rickard resumed maneuvering his car, and as he continued to use the accelerator even though his bumper was flush against a patrol car, an officer fired three shots into Rickard’s car. Rickard managed to drive away, almost hitting an officer in the process. Officers fired 12 more shots as Rickard sped away, striking him and his passenger, both of whom died from some combination of gunshot wounds and injuries suffered when the car eventually crashed.

While the question of the wisdom of firing “12 more shots” at a car speeding away from police might be the subject of debate among thoughtful people, the Court was untroubled by the choice.  The opinion, written by Justice Sam Alito, begins with the standard caveat:

We analyze this question from the perspective “of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” We thus “allo[w] for 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.”

These words serve as the apologia of all manner of stupid, because split-second judgments.  It’s not as if police are trained or anything, and we can’t expect them to exercise sound judgment when using deadly force. It’s very hard to be a cop, you know.

The Court fell back on Scott v. Harris, where it refused to expect police to use force with intelligence and instead deferred to the cop’s preference to shoot rather than the safety of innocent bystanders who would be harmed as a result.  Taking Scott a baby step further, Alito noted in footnote 3:

The District Court held that the danger presented by a high-speed chase cannot justify the use of deadly force because that danger was caused by the officers’ decision to continue the chase.  In Scott, however, we declined to “lay down a rule requiring the police to allow fleeing suspects to get away whenever they drive so recklessly that they put other people’s lives in danger,” concluding that the Constitution “assuredly does not impose this invitation to impunity earned-by-recklessness.”

The rule thus went from one of mere deference to stupidity to an entitlement to shoot at fleeing motorists.

But the question remained, is there any end to the force that can be used, any limits to the trigger finger of the adrenalin-fueled officer in fear of his life from the fleeing motorist?  Ten bullets?  Twenty?  A million?

Here, during 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.This would be a different case if petitioners had initiated a second round of shots after an initial round had clearly incapacitated Rickard and had ended any threat of continued flight, or if Rickard had clearly given himself up. But that is not what happened.

In other words, whatever happened to Rickard was his own fault, and so the consequences of his failure to “abandon his attempt to flee” cannot be blamed on the cops.

It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended. As petitioners noted below, “if lethal force is justified, officers are taught to keep shooting until the threat is over.”

This point, in which Justices Breyer and Ginsburg refused to join, is phrased somewhat euphemistically.  Lest there be any confusion, Alito is saying that if the officers are entitled to shoot at all, they can shoot until their target is dead and/or they run out of bullets.  Their only constraint is the number of bullets in their magazine.

NYPD cops fired 41 bullets at Amadou Diallo, Cleveland police fired 137 bullets at Malissa Williams. NYPD (again) fired 50 bullets at Sean Bell. Miami police fired 377 bullets at Adrian Montesano.  Get over it. They’re allowed. The Supreme Court says so.

20 thoughts on “Good To The Last Shot

  1. John Jenkins

    I wonder whether the real reason here is that cops can’t shoot worth a damn. I recall a case here where an officer was chasing a suspect through an apartment breezeway and decided that he needed to shoot the fleeing suspect. The officer fired his entire magazine and missed the suspect while managing to endanger innocents just sitting in their homes (some of the bullets were later recovered inside the apartments).

    What I don’t understand is the Court’s ignoring for all practical purposes the danger to third parties posed by excessive force. Even if you are willing to write off the individual suspect for whatever reason, physics says every one of those bullets will have its effect. Giving officers carte blanch in this manner at least moves the needle on safety of innocents in the wrong direction. The Court ought to at least consider the relative dangers instead of punting with this rule.

    1. SHG Post author

      And why does this make you wonder? A choice was made to either support police making “split-second decisions” or make them responsible for making sound decisions. The police won.

      1. RAFIV

        The two shouldnt be mutually exclusive. In a perfect world, an individual with proper, discipline, training and restraint can make sound split second decisions. I have been generally supportive of the use of deadly force when confronted with a threat, but even for someone like me this case seems a bridge too far.

        1. SHG Post author

          The “split-second decision” language is code. Notice how it’s never used to explain a poor choice by a defendant who is forced to make a “split-second decision” that ends poorly?

  2. Nigel Declan

    So, if we take the lessons we’ve learned from Plumhoff, as well as from the Christopher Dorner and Glenn Broadnax incidents, police officers are free to fire unlimited rounds repeatedly and with impunity at anyone that even vaguely resembles a potential threat, armed or not, and if bystanders or their property are shot and, possibly, killed, the person resembling the potential threat can be charged with felony offences based on the officers’ errant shooting. The only limitation is that the officers must stop when they believe that the “threat is over”. I guess this is what Nino had in mind when he described the “new police professionalism”.

    Perhaps we will soon seen officers armed with machine guns and bandoliers of bullets so that they can be sure that they can shoot enough bullets to stop the “bad guys”, knowing that they are Constitutionally entitled to do so and that they are immune from suit if they seriously injure the alleged “perps” or any innocent bystanders with errant rounds.

    1. SHG Post author

      Please take rants like this to reddit. The decision is bad enough as is, but let’s try not bring this to the lowest common denominator.

        1. SHG Post author

          You’re supposed to be on of the guys I can always look to for something interesting and thoughtful. I know it’s frustrating, but, well, okay.

          1. onlymom

            now now! SHG that was not Nigel. That was the United States Supreme Court that did that.

            they have now identified the as you call it the “lowest common denominator”

            which would now be the dumbest cop on the beat. Who can now shoot anyone! hurt anyone! kill anyone! Knowing the great and wise United States Supreme Court has his criminal back!

  3. David Woycechowsky

    This case left me wondering whether it would have come out different (or at least more split) if the plaintiff had been the passenger’s heirs, rather than the heirs of the driver.

  4. Johm Barleycorn

    If this is “reasonable” week does that mean that next week is “doubt” week?

  5. htom

    Eventually, some important official (at least in the press’s eyes) is going to be drunk, driving, and get involved in one of these and end up dead; what will the courts say, I wonder?

  6. bill

    On the bright side, they seemed to at least put the brakes on reloading or using a second gun. 17 bullets ok, 18 not ok – sounds legit. Sounds like a lot could be fixed by having the police use revolvers but that would conflict with the First Rule and is no doubt a fashion faux pas.

  7. George B

    “This would be a different case if petitioners had initiated a second round of shots after an initial round had clearly incapacitated Rickard and had ended any threat of continued flight, or if Rickard had clearly given himself up. But that is not what happened.”

    The survivors in the recent 337 round Montesano/Miami PD Circular Firing Squad case may be latching onto that statement….

    1. SHG Post author

      Note that “a different case” doesn’t necessarily mean a winning case. It just means a different rationale.

  8. Pingback: Six Officers Charged In Police Pursuit That Ended With 137 Shots Being Fired At Suspects In A Little Over 20 Seconds | Technology

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