Argument preview: High-speed chases — again
on Mar 3, 2014 at 7:14 pm
At 10 a.m. on Tuesday, the Supreme Court will again review the constitutional rules for high-speed police chases, in the case of Plumhoff v. Rickard. Arguing for the police officers seeking legal immunity will be Michael A. Mosley, a practitioner in North Little Rock, Arkansas, with twenty minutes of time. Representing the federal government as an amicus in support of the officers will be John F. Bash, an Assistant to the U.S. Solicitor General, with ten minutes of time. Arguing for the family of a man killed in the car chase will be Gary K. Smith of the Memphis, Tennessee, law firm of Apperson Crump, with thirty minutes of time.
High-speed police chases are a staple of crime movies and television dramas, and Hollywood long ago learned how to maximize their thrill potential. In real life, though, they are a deadly civic menace, and the consequences can be far more serious than the initial crime that police went to investigate before the suspect chose to flee. If police, in pursuit, use “deadly force,” the Fourth Amendment raises the question whether it was excessive.
Because the Fourth Amendment only outlaws a police tactic that is “unreasonable,” the Court has made clear over and over again that the constitutional issue is very closely tied to the specific facts. There is no “magical on/off switch” to decide when police over-reacted in an unconstitutional sense, the Court has said.
The new case growing out of a police chase in July 2004 illustrates the Court’s intense focus on facts. Before deciding whether to review the case, the Court twice called for the full record in lower courts, first from the appeals court and then from the trial court, no doubt interested at least in part in what was captured on video cameras on the police patrol cars. Then the Court pondered the case in four different private sessions before agreeing to hear it.
The final result of this particular chase was the death of both occupants of the car that police had chased from West Memphis, Arkansas, across a bridge into Tennessee, along an interstate highway, and finally through the streets of Memphis. The driver and the passenger died when police, unable to physically block the car from continuing, fired their guns into the vehicle as it spun around and attempted to speed away again.
There is no question in the case, of course, about whether, as a fact, the force used by police was deadly. The issue is whether it was justified, in a constitutional sense, under the Fourth Amendment as it was understood ten years ago. The issue of police immunity from civil rights damages lawsuits depends upon what the state of constitutional law was at the time of the incident — that is, was there a right that police supposedly violated, and, if there was, was the right clearly established at that point.
The last time the Supreme Court moved to clarify the Fourth Amendment as it applied to high-speed police chases was in 2007, in the case of Scott v. Harris. The Court ruled that police did not use unconstitutional deadly force when an officer rammed a car fleeing in a high-speed chase, to get the driver to stop — a ramming that resulted in a crash with crippling injuries to the fleeing motorist. The force used, the decision said, was no more than necessary to end the chase to protect public safety.
In a comment that may have some bearing on the new case, the opinion in that case said that “a police car’s bumping a fleeing car is, in fact, not much like a policeman’s shooting a gun so as to hit a person.”
That is the precedent that the U.S. Court of Appeals for the Sixth Circuit applied when, in late 2012, it ruled that six West Memphis, Arkansas, police officers did not have qualified immunity from an excessive force lawsuit filed on behalf of a child, Whitne Rickard of West Memphis, whose father, Donald Rickard, died in the incident. Killed along with him was a passenger, Kelly Allen, whose claim was dismissed in lower courts and is not at issue in the new appeal by the six police officers.
Petition for certiorari
Lawyers for the six policemen, led by Officer Vance Plumhoff, raised two questions for the Court: whether the Sixth Circuit was wrong in relying upon a 2007 precedent granting immunity to deny immunity for an incident that occurred three years earlier, and whether the Sixth Circuit had understated the role that Donald Rickard had played in fleeing and then trying to hit the officers or ram their cars during the chase.
The lawyers for Rickard’s daughter urged the Court not to hear the case, contending that the officers’ petition was seeking to raise issues they had not put before lower courts. The Court granted review of the case on November 15.
Briefs on the merits
The officers’ merits brief conceded that it was “tragic that Rickard and his passenger died because of an encounter that started out as a traffic stop for a burned out headlight.” But, it said, Rickard turned that encounter into a “reckless flight” combined with “aggravated assault” on the police, ultimately leading to his own death and that of passenger Kelly Allen. When the police shot Rickard, it added, “they were shooting a felon who remained a threat to the officers and the public at large.”
The filing contended that the Sixth Circuit made several errors in rejecting the claim for qualified immunity — including its use of the 2007 precedent to judge the reasonableness of an incident that had occurred in 2004, in direct contradiction of the constitutional formula to be used in determining the immunity question.
In addition, the brief contended that a decision to deny immunity to the officers in this case would amount to encouragement to individuals to flee from police to or drive dangerously and threaten officers and the public at large. It should not matter, the brief added, whether the reason for the initial police encounter with the suspect was a felony or a misdemeanor.
The Justice Department has entered the case to support Officer Plumhoff and his colleagues, contending that the Sixth Circuit had sought to answer only the first question regarding immunity — whether there was a First Amendment right that might have been violated in this case. The court of appeals did not address whether the right it identified had existed in 2004, when this police chase happened.
The Sixth Circuit used the Justices’ ruling in Scott v. Harris to contrast what happened there with what happened in Arkansas and Tennessee three years earlier, the Department argued. Scott v. Harris, the government brief asserted, did not establish a right against force as it was used in this case.
Since the Sixth Circuit failed to conduct the immunity analysis as required, the Department contended, it would be appropriate to send the case back to that court for another look. But if the Court chooses instead to answer the immunity inquiry itself, it should grant immunity, on the premise that the use of deadly force was not unconstitutional within the specific factual context of the chase that occurred in this incident. Thus, the West Memphis officers did not have fair warning that they could not use force as they did here, according to the government.
The brief on the merits for Whitne Rickard contended that there are disputed issues of fact in the case, especially about what her father did during the chase. Those disputes, this filing argued, are the key to whether the threat he posed to police was of such a degree that shooting him was a proper police reaction.
The Court’s decision in Scott v. Harris, the Rickard brief said, was about police use of a ramming technique to stop a fleeing suspect, and was not about shooting the suspect and a passenger riding with him. The Supreme Court itself, this brief noted, had said in its 2007 decision that the two situations were different, for constitutional purposes.
The Rickard filing, though, added its support to the Justice Department’s suggestion that the Court may want to return the case to the Sixth Circuit for a further exploration of the facts in the case. If the Court examines the video from the cameras in two of the police cars, this brief asserted, it will find that they do not show Rickard to have engaged in attempted assaults on the officers or their cars. There is also a dispute, it added, on whether the police “reasonably perceived the threats to themselves or others.”
The officers’ position in the case drew the amici support of twenty-two states, plus associations of state legislatures, cities, mayors, counties, and their lawyers. On the Rickard side were the National Association of Criminal Defense Lawyers, a police accountability project along with a human rights advocacy group, and a law professor who specializes in analyzing comparative risks.
The Court appears to have taken on this case to do one of two things, or perhaps both: first, to clarify how lower courts are to apply the two-step inquiry in analyzing police claims of immunity from civil rights lawsuits; and, second, to judge whether the Fourth Amendment analysis of excessive force changes when police fire their guns.
The first could keep the Court closely focused on what the Sixth Circuit had done with this case — the central point that both the police officers and the Justice Department have advanced in their briefs. It may be that the Court is interested in the timing issue: does a new precedent on immunity have some impact on an incident that had occurred earlier; is that a legitimate mode of constitutional comparison?
And it could be that the Court would simply wish to reinforce the concept that, in the immunity analysis, lower courts must confront and answer both whether a right was at stake, and whether it existed at the time of the incident.
The second potential basis for the Court’s interest in this case could lead it into an analysis of comparative threat, and comparative response. If Scott v. Harris involved the use of a rear-end ramming to stop a fleeing suspect’s car, was the firing of guns to stop the suspect on the same order? And was there in this case, as contrasted with Scott v. Harris, some additional threat because of the officers’ contention that Rickard actually acted menacingly toward them, in addition to simply endangering the general public by the way he drove during the pursuit?
By the time the Court assembles Tuesday for the argument, the Justices no doubt will have had a chance to view the videotapes from the officers’ cars. The argument itself may then reveal what it is that led them to take this case for review.