The Supreme Court on Tuesday, heard argument in a police shooting case involving the West Memphis, Arkansas Police Department.  Michael Mosley, an attorney at the Arkansas Municipal League, argued the case on behalf of the Police Officers.

The facts of the case involved a car stop in West Memphis, Arkansas.  When the officer asked Mr. Rickard to step out of his vehicle, Rickard fled the traffic stop leading officers on a dangerous pursuit.  Video of the pursuit captures the reckless nature of Rickard’s driving and officers can be heard on the accompanying audio indicating that Rickard was purposely trying to ram police vehicles constituting felony assaults on officers.

Rickard led the officers over the river crossing into Memphis, Tennessee where he exited the highway.  The pursuit continued in Memphis until Rickard stepped hard on his brakes, was tapped by a police car and spun out.   Officers then pulled in with a police car on each side of Rickard and one facing Rickard head on.  The video shows Mr. Rickard trying to move his vehicle and get away as the officers approached the vehicle with guns drawn.  One officer began firing as Rickard moved forward and back trying to get away, posing a threat to the officers.  An additional 12 shots were fired, some of which were after Rickard had driven backwards and out from the blockade.  Rickard drove a distance before crashing into a building.  Rickard and his passenger were both shot.

Public Agency Training Council’s instructor/force expert, Jack Ryan, who consulted with Michael Mosley on the case, described Mosley’s argument on behalf of the officers as flawless.  “Mike knew the facts, he knew the other side’s case, and he knew the law as well as anyone. Mike is the lawyer that every officer would want to have defending them.”

On behalf of the officers, Mosley argued that shooting at the vehicle was constitutional for several reasons.  First, officers were in danger of serious bodily harm or death from the vehicle as Rickard tried to escape.  Second, once Rickard had used his vehicle as a weapon he became a violent fleeing felon such that officers could use deadly force to prevent escape, and finally, that if Rickard had escaped he would have posed a dramatic threat to the public by his high speed flight.  Much of the oral argument focused on this last factor as plaintiff appeared to be arguing that the officers’ last 12 shots could not be justified.

Mosley’s main argument was that even if the Court were to find that the officers’ actions were unconstitutional, the law was not clearly established in 2004 when the shooting occurred such that a reasonable officer would know that the shooting was unreasonable.  While nothing is firmly decided until the written decision is entered, the Court appeared to be unanimous in the conclusion that there is no clearly established law controlling the facts of this case notwithstanding the contrary opinion of the Federal District Court that initially heard the case, nor the United States Court of Appeals for the 6th Circuit, both of which denied the officers qualified immunity.

According to Ryan, “based on Mike’s argument and the questions being asked by the Court, it would be no surprise if the Court found the officers’ actions to be Constitutional rather than simply giving the officers qualified immunity because the law was not clearly established.”   Ryan went on to say: “Any attorney who is defending an officer who has shot into a vehicle and is being sued under the 4th Amendment should read this argument closely and seek to slow their case down until the Supreme Court renders its decision.  Based on the tenor of the argument, it is likely that many of these pending cases would be granted qualified immunity and possibly even summary judgment.”

In commenting on the plaintiff’s argument Jack Ryan reported: “Rickard’s attorney treated the argument as if he were addressing a jury based on what he believed to be outrageous facts.”  “In doing so, he made factual arguments which were inconsistent with law enforcement practices such as suggesting that officers should have shot out the tires or ram the stopped car as was done in Scott v. Harris.  He also argued that shooting at Rickard placed the passenger as well as the general public at risk and he minimized the extreme risk that Rickard had already caused to the general public.  The members of the Court recognized the weakness in these arguments that would, if followed place Rickard, who put everyone at risk, in a favored position because others might be endangered by law enforcement action.  The Court asked, how does Rickard, the culpable party, get standing to argue that he should benefit because officers placed others at risk”

As noted by other commentators, the Court seemed convinced that there was no clearly established law on which to hold the officers liable.  It remains to be seen if the Court will go further and say the shooting was reasonable.

Like no clearly established law, we will have no clearly established answer to either question until the Court renders its decision between now and June.


Note:  Court holdings can vary significantly between jurisdictions.  As such, it is advisable to seek the advice of a local prosecutor or legal adviser regarding questions on specific cases.  This article is not intended to constitute legal advice on a specific case.

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