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Experiences at the interface of life, law, and motherhood in Cali

SCOTUS Condones Use of Deadly Force in “Shoot First, Think Later” Case

Kudos to Washington Post for covering the story.

Facts: potentially belligerent driver/officers attempting to arrest the driver for a misdemeanor probation violation/driver threatens to shoot police who give chase/high speed chase ensues:

Officers set up spike strips to puncture driver’s tires. Officer suggested shooting at driver’s engine to end the chase. Superior told him NOT to shoot, wait and see what happened with strips. Officer fired 6 shots at the car, none of which hit the engine, 4 of which hit the driver and killed him.

The court ruled in support of the officer’s use of deadly force EIGHT to ONE.

Sotomayor with the sole dissent:

“Chadrin Mullenix fired six rounds in the dark at a car traveling 85 miles per hour,” she wrote. “He did so without any training in that tactic, against the wait order of his superior officer, and less than a second before the car hit spike strips deployed to stop it.”

Her opinion stated that it was “clearly established” in prior decisions regarding excessive force that he acted improperly.

“Sotomayor noted that Mullenix’s words to his superior after the shooting were “How’s that for proactive?” It was an apparent reference to an earlier counseling session at which Mullenix was told he was not enterprising enough.

Mullenix’s “glib comment,” Sotomayor wrote, “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.’ ””

I can’t find the opinion, but here is the petition for cert.

First of all, however, eventhough we do not have the opinion to refer to, though I will do some more digging, the issues presented here, based on what I can glean from the sparse coverage, is not whether the officer is responsible (at all) as an agent of the state, but rather whether the victim’s family can sue the officer as an individual. In other words, the question presented seems to be whether the officer’s conduct can be said to go beyond that which other officers would reasonably do, thus removing him from the protections of sovereign immunity. That is the issue upon which the Court was ruling. It remains to be seen whether or not the officer as an agent of the police force, and therefore the state, remains liable to the family under whatever tort claim process is available in that jurisdiction.

That being said, what is most troubling about this case is how it seems to follow the trend we can observe in several recent opinions, in that it appears to utterly ignore prior SCOTUS precedent.

I mean Tennessee v. Garner, 471 U.S. 1 (1985) is one of the first cases any given law student reads during their introductory Criminal Procedure class.

Here is the holding of the case:

“This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

In Garner, the officers shot and killed a fleeing young unarmed man who was suspected of committing a robbery. Thus, clearly, the facts of the case are not exactly analogous. However, it is important to note that in both cases, there was no determinative felony that had been committed. In fact, in Mullenix, the officers were attempting to arrest him for a misdemeanor probation violation, not even a felony, and presumably not a violent offense.

“[T]here can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” Remember that requirement, reasonableness?

Thus, in order determine the constitutionality of a seizure,

“[w]e must balance the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” The intrusion, in both cases being the use of deadly force.

In Garner, the Court stated:

[Following the balancing process, and] notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched.The suspect’s fundamental interest in his own life need not be elaborated upon.The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment.

***

The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts,  the presently available evidence does not support this thesis.

***

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.

It is not better that all felony suspects die than that they escape. [emphasis added].

This is the fundamental disconnect that is perceptible not only in the Court’s opinion, but also in popular opinion as well. The lives of the suspects are not deemed worthy of receiving full fledged constitutional protections. It’s amazing really.

The tired arguments of law enforcement’s challenges cannot hold muster in cases such as this one, where you literally have the superior officer telling the inferior officer not to shoot. This is not the case of an officer having only one potential choice to make, not having the opportunity to consult with more experienced officers, and then using excessive force in order to preserve his life or the life of another. This is not that case.

If we do not hold officers accountable for KILLING someone, even when their superior officer told them NOT to shoot, then when will we hold them accountable? We have already seen that chokeholding someone suspected of petty theft, or shooting at someone in a wheelchair, leading to the death of both are not blameworthy offenses. So just how far will officers have to go until the public can rest assured that the actions they commit while under color of uniform will actually lead to them being held responsible in a court of law?

I’ve heard over and over again that officers have to go with their intuition in these circumstances. But there is one fact that all these cases have in common: all of the victims are minorities, and are overwhelmingly black.

Have you heard of any cases recently where the police shot and killed a white teenager or adult accused of stealing some cigarettes, or similar petty offense? For a misdemeanor probation violation? I know I haven’t. Perhaps it has occurred, and just hasn’t been reported on?

But here’s the thing, yes complying with police might be less likely to lead to an altercation, but what if you are innocent? What if you have committed no crime? What if you are pulled over for a traffic stop, and then informed by an officer that he will “light you up” for refusing to put out your cigarette, when your initial offense was allegedly failing to use a turn signal? Do you deserve to lose your life for voicing a dissent? Of what import are the First, Fourth, Fifth, and Sixth, and Eighth Amendments if not to preserve your life and entitle you to a “fair” and “impartial” trial, in order to determine your innocence or guilt? Isn’t that the entire purpose of the Due Process clause and its purported protections?

It is a sad and pathetic state of the nation that no one other than white Americans can protest their unlawful arrest for fear of being killed. That is not justice, that is tyranny. And the blame does not lie solely with officers who act against their superiors’ orders, it lies with our “justice system” that continues to condone such behavior and protect officers who act out of turn.

This isn’t a matter of whether or not police officers are entitled to respect for putting their lives on the lines. Again, this is not a case of not having the time to reflect and choose carefully whether to use deadly force. This is a case whether the use was carefully considered, and the defendant officer was told not to pull the trigger–and he did anyway. He took the entire potential of a fair trial into his own hands, and executed the driver of that vehicle. “How’s that for proactive?” he said after the shots were fired.

The protections in Garner were meant to apply in cases just as this one. In fact, the Court stated in its opinion:

It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect.

Of course, this is not a novel issue. The Court having ruled quite recently, and again 8 – 1 on the issue of the use of deadly force in a high speed car chase. What has evolved, however, is this study by three law professors, and published in the Harvard Law Review, regarding the role of jurors in evaluating the reasonableness of the use of excessive force– which may arguably be summarized thus:

The result in the case, we argue, might be defensible, but the Court’s reasoning was not. Its insistence that there was only one “reasonable” view of the facts itself reflected a form of bias – cognitive illiberalism – that consists in the failure to recognize the connection between perceptions of societal risk and contested visions of the ideal society. When courts fail to take steps to counteract that bias, they needlessly invest the law with culturally partisan overtones that detract from the law’s legitimacy.

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