There seemed to be an inexplicable likelihood that a car chase would end in the police killing someone, and I ponder why that would be. The Supreme Court, being as kind as it could to me, provided an answer in its per curiam opinion in Mullenix v. Luna.
In Brosseau, which also involved the shooting of a suspect fleeing by car, the Ninth Circuit denied qualified immunity on the ground that the officer had violated the clearly established rule, set forth in Tennessee v. Garner, 471 U. S. 1 (1985), that “deadly force is only permissible where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others.” . . . The correct inquiry, the Court explained, was whether it was clearly established that the Fourth Amendment prohibited the officer’s conduct in the “‘situation [she] confronted’: whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.”
In this case, Mullenix confronted a reportedly intoxicated fugitive, set on avoiding capture through high-speed vehicular flight, who twice during his flight had threatened to shoot police officers, and who was moments away from encountering an officer at Cemetery Road. The relevant inquiry is whether existing precedent placed the conclusion that Mullenix acted unreasonably in these circumstances “beyond debate.” al-Kidd, supra, at 741. The general principle that deadly force requires a sufficient threat hardly settles this matter. See Pasco v. Knoblauch, 566 F. 3d 572, 580 (CA5 2009) (“[I]t would be unreasonable to expect a police officer to make the numerous legal conclusions necessary to apply Garner to a highspeed car chase . . .”).
Well, damn. All this time, we thought Garner limited the lawfulness of police killing people at the end of a car chase just because, only to learn that it would be “unreasonable” to expect a police officer not to kill under exactly the circumstances that Garner would prohibit. Who knew?
As Andrew Fleischman explained at Fault Lines, every factor, including being ordered by his superior, seemed to dictate that Chandrin Mullenix not shoot:
Three quarters of a second before Leija would have hit one of three sets of road strips waiting for him, Officer Chandrin Mullenix fired six shots at his car, hitting him in the neck and killing him instantly. Mullenix claimed that he was trying to hit the engine block, though none of his shots landed there, he had no training in that tactic, and he had never seen it done before. After shooting and killing Leija, Mullenix gloated, asking his supervising officer, “How’s that for proactive?”
The Office of the Inspector General issued a report, saying that Mullenix had acted recklessly and without justification.
The question before the Supremes, however, wasn’t whether Mullenix made a good decision, but whether it was bad enough to lose qualified immunity for killing a guy whose crime was not completing a sentence of community service.
So if conduct that merely violates Tennessee v. Garner isn’t sufficient to give rise to the loss of qualified immunity, because it would be way too much to ask of cops to make a lawful judgment call as to when they’re allowed to kill and when they’re not, then there is a right without a remedy. The shoot may be bad, but Luna loses anyway.
All of which raises the perpetual question, so what can be done to stop this? And the most beloved answer is training.
A large part of that decision came from the fact that Mullenix was not making a split-second decision. He had already decided that he was going to kill Leija, and had three minutes to wait for his approach. When he asked his supervisor if it would be alright to shoot at the man, the supervisor told him to wait and see if the road strips worked first.
Justice Sotomayor, the lone dissenter, saw this as well:
When Mullenix confronted his superior officer after the shooting, his first words were, “How’s that for proactive?” Ibid. (Mullenix was apparently referencing an earlier counseling session in which Byrd suggested that he was not enterprising enough. Ibid.) The glib comment does not impact our legal analysis; an officer’s actual intentions are irrelevant to the Fourth Amendment’s “objectively reasonable” inquiry. See Graham v. Connor, 490 U. S. 386, 397 (1989). But the comment seems to me revealing of the culture this Court’s decision supports when it calls it reasonable—or even reasonably reasonable—to use deadly force for no discernible gain and over a supervisor’s express order to “stand by.” By sanctioning a “shoot first, think later” approach to policing, the Court renders the protections of the Fourth Amendment hollow.
If there is law designed to protect people from needlessly being killed, but law that gives them a free pass should they ignore the other law, then what is the lesson taught by the Supreme Court? Mullenix may not have been trained, but he was told by his superior, immediately in advance of shooting, to not shoot. And he shot anyway.
If there was a class in the Academy, an in-service for cops who were already on the job, to train them what to do when confronted with a car chase, what exactly would they be told?
- It’s bad to kill people who don’t pose a serious threat of harm to others.
- It’s bad to kill people when there are alternative means of stopping them that doesn’t involve killing them.
- There is no consequence for ignoring the first two rules.
There is another perpetual question, whether it really requires a class, training, to explain to a police officer that he should try not to needlessly kill people. Or in the lingo of the Supreme Court and qualified immunity, whether this is a “clearly established rule” so that one would not only expect cops to adhere to it, but be certain that they realize their violating it will give rise to the loss of qualified immunity.
As Justice Sotomayor says, promoting the rule of “shoot first, think later” isn’t likely to prevent needless deaths, but would make for some really easy training, the answer invariably given to all wrongs done by cops. And this is why car chases keep ending in death. Sometimes the death of a six-year-old child.