Trained To Kill: Why Car Chases End In Death

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?

  1. It’s bad to kill people who don’t pose a serious threat of harm to others.
  2. It’s bad to kill people when there are alternative means of stopping them that doesn’t involve killing them.
  3. 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.

17 thoughts on “Trained To Kill: Why Car Chases End In Death

  1. Jorge

    You seem to have left out of your setup the uncontested fact that the driver had called 911 twice during the chase saying he had a gun and would shoot any police officer who tried to stop him. Perhaps that’s what persuaded eight of nine Justices — including those notorious conservatives Ruth Bader Ginsburg and Elena Kagan — that’s not officer might reasonably have believed that the driver would, well, try to kill the police.

    1. SHG Post author

      As Noxx notes, it’s in there. Strike 1. But what is the impact of those two phone calls that alters the tactic of stopping the car with the strips versus shooting Leija while driving? Strike 2. And if the concern is killing cops, how does a dead man behind the wheel of a speeding car hurdling toward police alleviate the possibility that a cop might get killed? Strike 3.

    2. Leonard

      I believe your point irrelevant and distract from the issue at hand. The officers had presented a course of action that this particular officer decided to ignore, resulting in the death of the subject. This officer wasn’t making the mythical “split second” decision, he made a calculated decision to ignore orders and shoot.

    1. Andrew Fleischman

      A fun fact that SCOTUS left out in its analysis–the officer wasn’t too concerned about the safety of the guy manning the road strips.

      “When Shipman mentioned to Mullenix that there was “another officer beneath the overpass, Mullenix replied that he did not think he would hit that officer.”

      Pretty sure I won’t kill the other guy, and I’ll be proactive!

  2. Jeff Gamso

    I’m reminded that Scalia is quite sure that the increased professionalism of police officers and the ability to sue them for Fourth Amendment violations is why there’s no need for exclusionary rules. (Though in this case, there’s nothing to exclude – except a dead kid.)

    The remedy, of course, as I tried to argue the other day, is to fire cops who do shit like that and then prosecute them and lock ’em up for the killings. Do that routinely and maybe they’d figure out that killin’s not in their best interest when there’s an alternative (like not killing).

    Of course, the power of police unions makes the firing almost impossible, and even with indictments judges and juries and appellate courts won’t let cops be convicted of killing innocent people when they thought it was cool for them to do so. But that’s what it takes.

  3. Charles

    Fleischmann gets the facts wrong when he claims Mullenix asked “if it would be alright to shoot at the man”:

    “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.”

    Sotomayor’s opinion states: “Upon learning of the other spike strip positions, however, Mullenix began to consider another tactic: shooting at Leija’s car in order to disable it. Mullenix had not received training in this tactic and had not attempted it before, but he radioed the idea to Rodriguez. … As Mullenix waited for Leija to arrive, he and another officer, Randall County Sheriff’s Deputy Tom Shipman, discussed whether Mullenix’s plan would work and how and where to shoot the vehicle to best carry it out.”

    Mullenix never asked for permission to “shoot at the man”.

    1. SHG Post author

      That’s true. That’s not quite what the decision says Mullinex asked Byrd. From the majority opinion:

      Upon learning of the other spike strip positions, however, Mullenix began to consider another tactic: shooting at Leija’s car in order to disable it. 2013 WL 4017124, *1. Mullenix had not received training in this tactic and had not attempted it before, but he radioed the idea to Rodriguez. Rodriguez responded “10– 4,” gave Mullenix his position, and said that Leija had slowed to 85 miles per hour. Mullenix then asked the DPS dispatcher to inform his supervisor, Sergeant Byrd, of his plan and ask if Byrd thought it was “worth doing.” 773 F. 3d, at 716–717. Before receiving Byrd’s response, Mullenix exited his vehicle and, armed with his service rifle, took a shooting position on the overpass, 20 feet above I–27. Respondents allege that from this position, Mullenix still could hear Byrd’s response to “stand by” and “see if the spikes work first.”

      Perhaps Andrew read into this what we all know he meant, and what he in fact did, rather than the sanitary description used by the court. Still, you are correct that it is not entirely accurate.

    2. Andrew Fleischman

      That’s true. The guy kept asking if he could shoot at the car. But you have to presume that his boss said no because he didn’t want him to shoot the guy, rather than because he was worried about what would happen to his engine block.

      1. Charles

        It’s a presumption, but it’s not one you have to make. The only evidence we have of the supervisor’s thinking is the order to “stand by” and “see if the spikes work first.” This reflects only a belief that the strips had a high probability of success. It says nothing about whether the supervisor believed shooting at the car had a low probability of success, a high degree of risk of injury or death, or both.

        1. SHG Post author

          No, it’s not a “presumption,” but an inference, and it should have been noted as such. That said, it’s the only inference that knowledgeable people can draw (and is the tacit reason why the majority and dissent emphasized that Mullenix was untrained in shooting at cars to stop them) unless they want to pretend that Mullenix had magical marksman skills that would allow him to shoot at a moving vehicle from a significant distance with no risk of hitting a person.

          So while you’re technically correct, your complaint (which you’ve now needlessly repeated) is noted but insignificant.

  4. SamS

    The current standard for police use of deadly force is court made. Can a state legislature by changing state law or a city council by setting policy for its police force override the Supreme Court?

  5. Marc R

    If it’s unreasonable for an officer to consider the ramifications of his actions during a high speed chase then the Court would have to apply this to a police sniper hundreds of yards away. If it’s not about the distance of the cop from the suspect or about the officer being in harm’s way, then it’s about the speeding vehicle and the cops’ inability to articulate a reasonable course of behavior, then they have absolute immunity for shooting into moving vehicles. Is that not fair to extrapolate from the Garner expansion?

  6. David Woycechowsky

    Because the standard is an objective one, what Mullenix meant to hit is irrelevant.

    That evidence should not have been allowed in.

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