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Police killings and the Supreme Court

In 2010, Israel Leija was killed by a police officer during a high speed chase, which ended when Mullenix, a police officer, stationed on an overpass, shot several bullets into Leija’s car. The chase began when the police tried to arrest Leija at a drive-in restaurant for violating parole on a misdemeanor charge. When the officer approach Leija in his car, Leija drove off, with the police giving chase, while several other officers set up tire spikes along the road to stop him.

As is true of many deadly police encounters, there are two different ways to frame the facts. In one version, an intoxicated Leija led police on a 25-mile high speed chase, threatening to shoot police officers, and who was moments away from encountering an officer. In this version, Mullenix was acting to prevent harm to his fellow officers, who were stationed on the road near the spikes. As Leija’s car approached the spikes, Mullenix shot at it six times. Four of the shots hit Leija’s upper body, killing him, and the car hit the spikes, rolled over twice and stopped.

In another version, Leija was described as not quite so reckless, and Mullenix as less a proactive police officer than a renegade one. In this description, while traveling at high speeds, Leija remained steadily on the paved road with his headlights on, did not interfere with other cars on the road, and endangered no pedestrians because the road was located in a rural area, with no businesses or residences. When Mullenix radioed his intent to fire at the vehicle to his supervisor, he was told to “stand by” and “see if the spikes work first.” Despite this, and without any training in stopping a car by shooting at it, let alone at night, Mullenix fired his shots, hitting not the car’s radiator, hood, or engine block, but Leija’s head, shoulder, and neck. He later remarked to his supervisor, who had told him earlier that day in a counseling session that he was not proactive enough, “How’s that for proactive?”

Civilian deaths at the hands of the police are often argued in the court of public opinion and in the lower rungs of our judicial system when indictments are sought. The circumstances surrounding Leija’s death, though, made it to the Supreme Court, giving us a rare glimpse of where the justices’ fall in the contentious public debate over police killings. The question before the Court in Mullenix v. Luna, bought by Leija’s mother and child and alleging a violation of Leija’s civil rights, was whether Mullenix used excessive force in violation of the Fourth Amendment, which prohibits unreasonable searches and seizures.

The legal test is easily stated. First, did Mullenix’s use of deadly force violate the Fourth Amendment?  Generally, deadly force is considered unreasonable against a fleeing suspect who does not pose a substantial and immediate threat of harm to the officer or others. Second, given the circumstances of the case, would a reasonable officer have known that such conduct violated the Fourth Amendment? A no to any of these questions would give the officer qualified immunity, and hence no liability for the death.

In a per curium decision, dated 9 November, the Court found that Mullenix did not use excessive force, opting for the first framing of the facts described above. It set a high standard, noting that, at least in cases involving car chases, it must be “beyond debate” that the police officer acted unreasonably. Its decision was consistent with that of the grand jury, which had declined to indict Mullenix. But it was contrary to the decision of the Fifth Circuit Court of Appeals whose decision it overturned. Only Justice Sotomayor dissented, in an opinion suggesting she alone understands what excessive force looks like to citizens on the ground. As she put it “by sanctioning a ‘shoot first, think later’ approach to policing, the Court renders the protections of the Fourth Amendment hollow.”

The Mullenix case is one of a long line of cases where the justices seem intent on watering down Fourth Amendment protections that stand between citizens and sometimes too zealous police officers. In the related area of stop and frisk tactics, the Court over the years has expanded the powers of the police by allowing them to detain citizens without probable cause on the streets (Terry v. Ohio), to use traffic stops as a pretext to search for evidence of a crime (Whren v. United States) even when a police officer is mistaken that a traffic violation has occurred (Heien v. North Carolina), and to order passengers out of a car during a traffic stop (Maryland v. Wilson). While these cases do not involve racial profiling per se, they make it easier for the police to do so. Similarly, cases like Mullenix have real world implications, allowing reckless officers off the hook.

To be sure one person’s reckless officer is another person’s proactive one. But when it comes to something as serious as police encounters that end in the death of a civilian, the Court should ensure that the Fourth Amendment is operating at full strength. One could easily have imagined a different result in Mullenix if the Court had followed Justice Sotomayor’s lead, and applied the law to the facts with an eye towards protecting civilians.

Featured image credit: “National March Against Police Violence Washington DC USA 50309” by Ted Eytan, CC BY-SA 2.0 via Flickr.

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