By Zachery A. Lopes 11/10/15
In Mullenix v. Luna, 577 U.S. ____ (2015), decided by the United States Supreme Court on November 9, 2015, the Court further defines and seemingly expands the reach of the doctrine of “qualified immunity” afforded peace officers when they use force alleged to be in violation of the Fourth Amendment. Now, “qualified immunity” should shield “all but the plainly incompetent or those who knowingly violate the law” from civil liability.
Mullenix considered a civil lawsuit brought against a Texas Department of Public Safety (DPS) Trooper alleging the Trooper violated a deceased fleeing-felon’s Fourth Amendment right to be free from unreasonable force. The fleeing felon, Israel Leija, Jr., fled an attempted arrest which culminated in an 18-minute chase at speeds between 85 and 110 miles per hour. Twice during this chase, Leija called a police dispatcher, claimed to have a gun, and threatened to shoot police officers if they did not abandon their chase. In an effort to stop the pursuit, the Defendant DPS Trooper set up on an overpass above the highway Leija was traveling and readied a service rifle, in anticipation of shooting at Leija’s car to disable it. Another peace officer was under the same overpass monitoring a “spike-strip” intended as another means to disable Leija’s car. After the Defendant DPS Trooper spotted Leija’s car approaching, he fired six shots, causing the car to roll two and half times. Leija was determined to have died as a result of the gunshots, with four hitting him directly. None of the gunshots hit the car’s radiator, hood, or engine block.
The firing DPS Trooper was sued, alleged to have violated Leija’s Fourth Amendment right to be free from unreasonable force. The DPS Trooper argued he was immune from suit under the doctrine of “qualified immunity.” Qualified immunity protects government employees, including peace officers, from civil liability so long as their alleged conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). A right is “clearly established” where it is “sufficiently clear that every reasonable official would have understood that what [the official] is doing violates that right.” Reichle v. Howards, 566 U.S. ____ (2012). Thus, as long as the alleged right to have been violated was not “clearly established,” a peace officer is immune from suit.
The Mullenix District Court found that the DPS Trooper was not entitled to qualified immunity. The Fifth Circuit Court of Appeal agreed with the District Court, because “the law was clearly established such that a reasonable officer would have known that the use of deadly force, absent a sufficiently substantial and immediate threat, violated the Fourth Amendment.” The Supreme Court reversed both, and found that the DPS Trooper was immune from suit. In its opinion the Supreme Court notes, a few times, the facts confronting the DPS Trooper when he fired the shots: “In this case, [the DPS Trooper] 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” positioned beneath the overpass. On these facts, it was not “clearly established” that deadly force violated the Fourth Amendment.
More important than the factual analysis, however, is the legal standard the Supreme Court employed in its “qualified immunity” analysis. The Supreme Court reminded that is has “repeatedly told courts…not to define clearly established law at a high level of generality.” Rather, “existing precedent must have placed the statutory or constitutional question beyond debate.” “Put simply, qualified immunity protects ‘all but the plainly incompetent or those who knowingly violate the law.’” Thus, the Fifth Circuit’s proclamation that “use of deadly force, absent a sufficiently substantial and immediate threat, violate[s] the Fourth Amendment” was much too general. “The relevant inquiry [in this case] is whether existing precedent placed the conclusion that [the DPS Trooper] acted unreasonably in these circumstances ‘beyond debate.’” After a survey of fleeing-felon cases, the Supreme Court found that “none of our precedents ‘squarely governs’ the facts here. Given Leija’s conduct, we cannot say that only someone ‘plainly incompetent’ or who ‘knowingly violate[s] the law’ would have perceived a sufficient threat and acted as [the DPS Trooper] did.”
The Court’s use of phrases such as “beyond debate,” “plainly incompetent,” and “knowingly violates” expresses an expansion of the analysis for determining whether qualified immunity applies. Now, arguably, plaintiffs’ lawyers alleging excessive force in violation of the Fourth Amendment must demonstrate “plain incompetence” or specific intent to violate another’s constitutional rights. These are very high burdens.
Mullenix represents a continuation of the Supreme Court’s recognition that peace 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,” and that “the reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham v. Connor, 490 U.S. 386 (1986).
Zachery A. Lopes is an associate in the firm’s Northern California practice, representing public safety employees in civil, criminal, labor and administrative matters.