Law enforcement officers shooting into vehicle following an initial pursuit and to prevent a further pursuit did not violate the Fourth Amendment. [i]
The United States Supreme Court outlined the facts of Plumhoff v. Rickard as follows:
Near midnight on July 18, 2004, Lieutenant Joseph Forthman of the West Memphis, Arkansas, Police Department pulled over a white Honda Accord because the car had only one operating headlight. Donald Rickard was the driver of the Accord, and Kelly Allen was in the passenger seat. Forthman noticed an indentation, “‘roughly the size of a head or a basketball’” in the windshield of the car. He asked Rickard if he had been drinking, and Rickard responded that he had not. Because Rickard failed to produce his driver’s license upon request and appeared nervous, Forthman asked him to step out of the car. Rather than comply with Forthman’s request, Rickard sped away.
Forthman gave chase and was soon joined by five other police cruisers driven by Sergeant Vance Plumhoff and Officers Jimmy Evans, Lance Ellis, Troy Galtelli, and John Gardner. The officers pursued Rickard east on Interstate 40 toward Memphis, Tennessee. While on I–40, they attempted to stop Rickard using a “rolling roadblock,” but they were unsuccessful. The District Court described the vehicles as “swerving through traffic at high speeds,” and respondent does not dispute that the cars attained speeds over 100 miles per hour. During the chase, Rickard and the officers passed more than two dozen vehicles.
Rickard eventually exited I–40 in Memphis, and shortly afterward he made “a quick right turn,” causing “contact [to] occu[r]” between his car and Evans’ cruiser. As a result of that contact, Rickard’s car spun out into a parking lot and collided with Plumhoff ’s cruiser. Now in danger of being cornered, Rickard put his car into reverse “in an attempt to escape.” As he did so, Evans and Plumhoff got out of their cruisers and approached Rickard’s car, and Evans, gun in hand, pounded on the passenger-side window. At that point, Rickard’s car “made contact with” yet another police cruiser. Rickard’s tires started spinning, and his car “was rocking back and forth,” indicating that Rickard was using the accelerator even though his bumper was flush against a police cruiser. At that point, Plumhoff fired three shots into Rickard’s car. Rickard then “reversed in a 180 degree arc” and “maneuvered onto” another street, forcing Ellis to “step to his right to avoid the vehicle.” As Rickard continued “fleeing down” that street, Gardner and Galtelli fired 12 shots toward Rickard’s car, bringing the total number of shots fired during this incident to 15. Rickard then lost control of the car and crashed into a building. Rickard and Allen both died from some combination of gunshot wounds and injuries suffered in the crash that ended the chase.
A lawsuit was brought against the officers alleging excessive force for shooting the driver, Rickard. It should be noted that there was a lawsuit brought on behalf of the passenger as well but issues relating to the passenger were not before the Court. In the Federal District Court as well as the United States Court of Appeals for the 6th Circuit, the officers lost their motions to have the case dismissed on summary judgment and qualified immunity ground. Summary judgment means that even looking at Rickard’s case as stated by Rickard, the officers did nothing wrong under the Constitution. Qualified immunity means that irrespective of whether the officers’ actions were wrong or not, the law was not clearly established and the case should be dismissed because the officers were not on notice that their actions were wrong.
On appeal to the United States Supreme Court, the officers argued that their actions were constitutional and even if they weren’t the law was not clearly established on the issue of shooting into vehicles under this type of circumstance. The plaintiff put two main arguments before the Court, first, it was excessive force to use deadly force to terminate the chase, and second, even if officers were justified in firing their weapons, they went too far with the number of shots they fired.
The Court began by citing Scott v. Harris [ii], where the Court held that an officer’s attempt to stop a dangerous high-speed car chase that poses a threat to the public at large does not violate the Fourth Amendment even if the officer’s attempt places the driver of the fleeing vehicle in danger of serious bodily harm or death. The Court in this case found no reason why ramming a car at 90 mph was any different than the officers here shooting at the vehicle to stop the chase.
In reaching this particular part of the decision, the Court noted Rickard’s outrageous reckless driving, fleeing at 100 mph, passing more than two dozen cars forcing many of them to alter their course. The Court went on to note that even when Rickard was temporarily halted for three seconds the chase did not end as the wheels of Rickard’s car could be seen spinning on the videotape from one of the police cars. Additionally Rickard’s car was moving and reversed. The Court concluded that the videotape showed that while the chase was momentarily halted, it was not over as Rickard continued to try and break free from the three police vehicles and ultimately succeeded.
The Court reasoned:
Under the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road. Rickard’s conduct even after the shots were fired—as noted, he managed to drive away despite the efforts of the police to block his path underscores the point.
In light of the circumstances we have discussed, it is beyond serious dispute that Rickard’s flight posed a grave public safety risk, and here, as in Scott, the police acted reasonably in using deadly force to end that risk.
In dealing with the plaintiff’s second argument contending that officers were not justified in continuing to shoot at the vehicle, the Court asserted:
It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended… Here, during the 10-second span when all the shots were fired, Rickard never abandoned his attempt to flee. Indeed, even after all the shots had been fired, he managed to drive away and to continue driving until he crashed. This would be a different case if petitioners had initiated a second round of shots after an initial round had clearly incapacitated Rickard and had ended any threat of continued flight, or if Rickard had clearly given himself up. But that is not what happened.
The Court noted that with respect to the reasonableness of the shots fired plaintiff argued that it was unreasonable due to the presence of the passenger Kelly Allen. In dealing with this argument the Court made clear that Fourth Amendment rights are personal in nature and cannot be vicariously asserted. In other words, Rickard does not get to claim it was unreasonable to shoot him because Allen’s rights might be violated. The Court asserted that Allen’s presence in the vehicle does not in any way enhance Rickard’s Fourth Amendment rights. The Court wrote, “After all, it was Rickard who put Allen in danger by fleeing and refusing to end the chase, and it would be perverse if his disregard for Allen’s safety worked to his benefit.”
The Court went on to hold that even if they had found that the officers’ actions violated the Fourth Amendment, the officers still would have been entitled to qualified immunity because at the time of the shooting the law was not clearly established.
The Court citing prior case law held:
We think our decision in Brosseau v. Haugen, 543 U. S. 194 (2004) (per curiam) squarely demonstrates that no clearly established law precluded petitioners’ conduct at the time in question. In Brosseau, we held that a police officer did not violate clearly established law when she fired at a fleeing vehicle to prevent possible harm to “other officers on foot who [she] believed were in the immediate area, . . . occupied vehicles in [the driver’s] path[,] and . . . any other citizens who might be in the area.”
Brosseau makes plain that as of February 21, 1999—the date of the events at issue in that case—it was not clearly established that it was unconstitutional to shoot a fleeing driver to protect those whom his flight might endanger.
Thus, in a decision with no dissents the Court held that the officers’ decision to stop this vehicle’s continued high-speed flight did not violate the Fourth Amendment. It is noted that the decision was 9-0 but not unanimous because there was some disagreement on rationale.
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Author’s note: I would like to congratulate Michael Mosley and the Arkansas Municipal League Legal Staff under the leadership of Mark Hayes. It is an honor to work with such fine attorneys. JR
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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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CITATIONS:
[i] Plumhoff v. Rickard, 572 U.S. ____ , slip op. 12-1117 (5/27/14).
[ii] Scott v. Harris, 550 U.S. 372 (2007).
