||FIFTH CIRCUIT AFFIRMS QUALIFIED IMMUNITY FOR OFFICERS IN DEADLY VEHICLE PURSUIT

FIFTH CIRCUIT AFFIRMS QUALIFIED IMMUNITY FOR OFFICERS IN DEADLY VEHICLE PURSUIT

On March 8, 2019, the Fifth Circuit Court of Appeals decided Morrow et al. v. Meachum[i], in which the court examined whether an officer was entitled to qualified immunity from suit when he maneuvered his police SUV into the path of a fleeing motorcycle which resulted in the death of Moon, the twenty-two year old operator of the motorcycle. The relevant facts of Morrow, taken directly from the case, are as follows:

On June 26, 2014, Meachum was patrolling I-20 near the town of Cisco, Texas. He was driving a marked police SUV. At around 5:30 p.m., Meachum observed motorcyclist Moon speeding at 85 mph and weaving through traffic. Meachum turned on his lights to stop the motorcycle. Moon sped away. Meachum radioed for help.

Having shaken the police SUV from his tail, Moon exited I-20. He stopped at a gas station and hid behind a gas pump. Eastland County Deputy Sheriff Ben Yarbrough drove by the gas station and spotted Moon. Moon likewise spotted Yarbrough. So Moon again sped away—this time performing a “wheelie.” Yarbrough turned on his lights and gave chase. Moon again escaped. Yarbrough radioed that Moon was now headed south on US-183.

Meanwhile, Investigator Meachum had also exited I-20 onto southbound US-183. But given Moon’s pit stop, Meachum was now in front of him. The relevant stretch of US-183 is a two-lane undivided road with rolling hills. Videos in the record show light but consistent traffic going both directions. Videos also show Meachum was driving approximately 100 mph; motorcyclist Moon was clocked at 150 mph and closing quickly behind Meachum.1 As Meachum reached the top of a gentle hill, he spotted two vehicles in the oncoming (northbound) lane of US-183. Meachum also spotted Moon approaching from behind.

Thus began the fateful seven seconds at the heart of this case. According to the dashboard camera (“dashcam”) on Meachum’s police SUV and Moon’s expert report, the officer was going approximately 100 mph when he spotted Moon approaching from behind. The dashcam at that moment is timestamped 17:46 and 41 seconds. At 42.3 seconds, Meachum slowed to 93 mph and moved to the right side of his lane. At 43.0 seconds, Meachum slowed to 87 mph. At 44.7 seconds, Meachum slowed to 71 mph. Then, over the next 2.3 seconds—from 44.7 to 47.0—Meachum slowed to 56 mph and moved his SUV leftward and over the center line of US-183. At 47.7 seconds, Moon crashed into the back of Meachum’s SUV. The dashcam shows Meachum was traveling 51 mph at impact.  Moon died. He was 22.”[ii]

Morrow sued Investigator Meachum on behalf of Moon’s estate and alleged that Meachum violated Moon’s rights under the Fourth Amendment when he positioned his SUV to surprise Moon, prevent him from eluding arrest a third time, and to kill him.  The district court held that Investigator Meachum was entitled to qualified immunity from suit and granted summary judgment for Meachum.  The district court, quoting the Supreme Court in Scott v. Harris[iii], stated

[T]he law is clear that ‘[a] police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.[iv]

Morrow appealed the grant of summary judgment to the Fifth Circuit Court of Appeals.

The Fifth Circuit first discussed the inquiry and standards that must be met in order for a plaintiff to defeat qualified immunity.  The court stated

Qualified immunity includes two inquiries. The first question is whether the officer violated a constitutional right. The second question is whether the “right at issue was ‘clearly established’ at the time of [the] alleged misconduct.”  Pearson v. Callahan, 555 U.S. 223, 232 (2009). We can decide one question or both. See id. at 236.

The second question—whether the officer violated clearly established law—is a doozy. The § 1983 plaintiff bears the burden of proof. See Vann, 884 F.3d at 309. And the burden is heavy: A right is clearly established only if relevant precedent “ha[s] placed the . . . constitutional question beyond debate.Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011).[v] [emphasis added]

Since the court is permitted to decide the two inquiries for qualified immunity in either order, the court set out to determine the issue of this case:  whether, at the time of this incident, the law was clearly established, such that it was “beyond debate—such that any reasonable officer would know, even in only seven seconds, and even in the midst of a high-speed chase—that Meachum’s rolling block violated the Fourth Amendment.[vi]

If the plaintiff cannot affirmatively answer this issue with precedent in support it’s case, then qualified immunity is appropriate for Investigator Meachum.

The plaintiff attempted to show that the law was clearly established that what Meachum did violated the Fourth Amendment.  However, the Fifth Circuit stated

To the extent we can identify clearly established law in excessive-force cases, it supports Meachum, not Moon. In at least three recent cases, the Supreme Court has decided whether officers are entitled to qualified immunity for using deadly force to end high-speed chases. In all three cases, the Court said yes. In Plumhoff, the Court held officers were entitled to qualified immunity after firing 15 shots that killed two men who fled a traffic stop at speeds over 100 mph. 572 U.S. at 769-70, 779-80. In Mullenix, the Court held an officer was entitled to qualified immunity after firing six shots and killing a man who evaded arrest at speeds between 85 and 110 mph. 136 S. Ct. at 306-07, 312. And in Scott, the Court held an officer was entitled to qualified immunity after ending an 85-mph chase by ramming the suspect’s car off the road and paralyzing him. 550 U.S. at 375, 386. Indeed, in Scott, the Court held there was no constitutional violation at all. Id. at 386.

Appellants argue these cases are distinguishable in various ways. True. All that matters here, however, is that three cases affording qualified immunity to officers who used deadly force to end police chases do nothing to foreclose using deadly force to end police chases. See Mullenix, 136 S. Ct. at 312.[vii]

In other words, the court of appeals stated that the three Supreme Court case mentioned above do not stand for the proposition that Meachum acted in violation of the Fourth Amendment.

The court of appeals then examined the plaintiff’s arguments in this case.  First, the plaintiff argued that Broward v. County of Inyo[viii] supported their case.  However, the court of appeals stated that this case only established that using a tractor-trailer to completely block a road to stop a vehicle pursuit constituted a seizure under the Fourth Amendment.  The Supreme Court did not render an opinion on liability or whether that seizure was unreasonable.  As such, the court of appeals stated that this case does not help the plaintiff in Morrow.

Second, the plaintiff argued that Tennessee v. Garner[ix] supports their case.  However, the court of appeals stated

Garner is easily distinguishable. A motorcyclist eluding arrest twice and leading police on a chase at well over 100 mph poses an obvious threat to the pursuing officers and the public. The videos in this case show many other motorists on the road. Moon’s “reckless, high-speed flight” therefore endangered the public and officers in ways Garner’s fence-hopping never did. Scott, 550 U.S. at 384. That’s precisely why the Supreme Court “has . . . never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity.” Mullenix, 136 S. Ct. at 310. And it’s why we previously refused to extend Garner to high-speed chases. See Pasco, 566 F.3d at 580 (“[I]t would be unreasonable to expect a police officer to make the numerous legal conclusions necessary to apply Garner to a high-speed car chase.”). We refuse again today.[x] [emphasis added]

Third, the plaintiff cited the Fifth Circuit case of Lytle v. Bexar County[xi] in which an officer shot at a fleeing vehicle and killed a fifteen-year-old passenger in the back seat.  Ultimately, qualified immunity was not granted in that case.  However, the court noted that Lytle was too factually dissimilar to the facts of Morrow’s case to form “clearly established law.”  Further, the court stated

Sure, there’s Lytle. On the other hand, Mullenix, Plumhoff, Vann, Pasco, and Thompson v. Mercer, 762 F.3d 433, 440-41 (5th Cir. 2014), all involved gunshots that ended high-speed chases. And qualified immunity applied in all five. Cases cutting both ways do not clearly establish the law.[xii] [emphasis added]

Lastly, the plaintiff argued that it is “unconstitutional for officers to perform a rolling block where a fleeing motorcyclist “posed no immediate danger to anyone.”[xiii]  The plaintiff attempted to argue that cases outside of the Fifth Circuit have clearly established this principle.  The court first stated

We have not previously identified the level of out-of-circuit consensus necessary to put the relevant question “beyond debate.” al-Kidd, 563 U.S. at 741. But we know the consensus must be “robust.District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting al-Kidd, 563 U.S. at 741-42).[xiv]

The plaintiff then cited two Sixth Circuit cases that denied qualified immunity in motorcycle chases.  One case was decided after the incident in Morrow’s case so that case was irrelevant.  The other case was Walker v. Davis.[xv]  This case involved the pursuit of a slow moving motorcycle, crossing an empty field, in rural Kentucky.  The court of appeals discussed Walker and why it was unpersuasive.  Specifically, the court stated

[T]he Sixth Circuit’s approach is infected by the same disease the Supreme Court cured in Mullenix. The Sixth Circuit held Garner makes it “clearly established law that an officer may not use his police vehicle to intentionally hit a motorcycle unless the suspect on the motorcycle poses a threat to the officer or others.” Stamm, 657 F. App’x at 496; see also Walker, 649 F.3d at 503 (similar). Of course, Garner held no such thing. Garner involved guns (not police vehicles), and Garner involved a $10-thief hopping a fence (not a motorcyclist escaping at triple-digit speed). The only way to use Garner for clearly establishing the law in vehicle chases is to identify the constitutional issue from a bird’s eye view—an approach the Supreme Court has rejected time and again. See, e.g., Mullenix, 136 S. Ct. at 309 (rejecting the “use of Garner’s ‘general’ test for excessive force” to identify clearly established law).[xvi]

As such, the Fifth Circuit stated that the Sixth Circuit case did not establish a “consensus.”

The Fifth Circuit concluded it’s analysis by stating

Under [Plaintiff’s] view, [Investigator] Meachum should be forced to decide—with life-or-death consequences for innocent motorists, in less than seven seconds, and upon pain of personal liability—whether his chase is more like Abney and Mullenix, or more like a slow-moving motorcycle pursuit “across an empty field in the middle of the night in rural Kentucky,” Walker, 649 F.3d at 503. Section 1983 does not put [Investigator] Meachum to that choice. Nor do we.[xvii]

The court of appeals then affirmed the grant of qualified immunity for Investigator Meachum.

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Citations

[i] No. 17-11243 (5th Cir. Decided March 8, 2019)

[ii] Id. at 2-3

[iii] 550 U.S. 372, 386 (2007)

[iv] Morrow at 4

[v] Id. at 4-5

[vi] Id. at 8

[vii] Id. at 9

[viii] 489 U.S. 593 (1989)

[ix] 471 U.S. 1 (1985)

[x] Morrow at 11-12

[xi] 560 F.3d 404 (5th Cir. 2009)

[xii] Morrow at 13

[xiii] Id.

[xiv] Id.

[xv] 649 F.3d 502 (6th Cir. 2011)

[xvi] Morrow at 14-15

[xvii] Id. at 15

By |2019-10-29T13:58:21+00:00October 29th, 2019|Legal updates|

About the Author:

Brian Batterton is an attorney in the State of Georgia and currently a Lieutenant with the Cobb County Police Department. He has been in law enforcement since 1994 and obtained his Juris Doctorate in 1999 from John Marshall Law School in Atlanta. He has served as an officer in Uniform Patrol, a detective in Criminal Investigations, a Corporal in the Training Unit and as a Sergeant in Uniform Patrol. Brian is currently assigned as the Legal Officer to the Chief of Police. In addition to his work at the police department, he also lectures for the Legal and Liability Risk Management Institute (LLRMI) on both criminal law and procedure topics, as well as, police civil liability.