ON THE JOB JUST HANDED DOWN
Shooting the Car to End Pursuit
…and the dangers of reading qualified immunity decisions By Pam McDonald and Randy Means
Randy Means is a 35-year full-time police legal advisor and trainer. He was formerly in-house counsel to a major city police department, head of the legal department at a state law enforcement training center, head of the national as- sociation of police legal advisors (IACP-LOS), and executive officer on a small combatant naval vessel. He is author of the book The Law of Policing.
In her 25-year career with law enforcement, Pam McDonald has been a patrol officer and felony investigator, a felony prosecutor and a col- lege professor, specializing in police law. She was a Sr. Rule of Law Advisor overseas and studied police legal matters internationally, recently completing her LL.M. She continues to assist Randy Means in much of his work. She can be reached at
pammcdonaldfirm@aol.com.
www.thomasandmeans.com O The Facts
Attempting to serve an arrest warrant, a Texas police of- ficer approached Israel Leija (who was in his vehicle) and informed him he was under arrest. Leija sped away and a pursuit began. A Texas Trooper promptly joined the pursuit, which lasted 18 minutes and reached speeds of 110 miles per hour. Twice during the chase, Leija called dispatchers claim- ing to have a gun and threaten- ing to shoot the offi cers involved. A dispatcher relayed these threats
n Nov. 9, 2015, in Mullenix v. Luna, the U.S. Supreme Court decided a case that again brought public scrutiny to violent police tactics, in this case deadly force used to terminate a vehicle pursuit. In this case, the term “deadly force” is disputed by Justice Sca- lia, who argued that trying to shoot a car as opposed to its driver keeps this from being deadly force. The case is reviewed here. However, before anything else is said about it, it’s important to know a few things. First, what this case isn’t. It is not a decision that it was OK to do what this offi cer did. Second, what this case is. It is recognition that the offi cer’s action was not prohibited by clearly established federal constitutional law at the time he took that action; there- fore, a reasonable offi cer could have thought the Constitution allowed it; therefore, under federal law, the offi cer qualifi es for immunity from federal civil liability. Again, what this case isn’t. It is not a decision on the con- stitutional validity of what this offi cer did. The qualifi ed im- munity defense is not available to entity defendants like cities and counties and their law enforcement agencies. This case does not protect the entity. Although this is a decision in favor of the law enforcement offi cer who was being sued, no law enforcement policy, training, or action should be based on the view that this case decides the substantive constitutional issue underlying this litigation; it does not.
8 LAW and ORDER I January 2016
to the offi cers and advised that Leija might be intoxicated. Offi cers deployed spike strips in three locations. Trooper Mullenix initially responded to set up a spike strip, but he decided instead to try shooting the vehicle in order to disable it, though he had not been trained in that tactic. Mullenix radioed his plan to the Trooper who was still chasing Leija, then asked dispatchers to tell his Sergeant and ask him if he thought it was “worth doing.” Before receiving his Sergeant’s response to “standby” and “see if the spikes work fi rst,” Mullenix took up a shooting position with his rifl e on an overpass above a spike strip loca- tion. (For procedural reasons, the Court presumes Mullenix could hear his Sergeant’s response, but Mullenix denies that.) When Leija’s vehicle approached the overpass, Mullenix fi red six shots. Leija was killed when four of the shots struck him in the upper body; neither of the other shots hit the vehicle.
The Civil Case Leija’s estate sued Trooper Mullenix in federal court alleg- ing the shooting violated Leija’s Fourth Amendment right to be free from unreasonable seizure. Mullenix argued he was entitled to qualifi ed immunity because his conduct did not violate clearly established principles of federal constitutional law. The Supreme Court decided Trooper Mullenix was en- titled to qualifi ed immunity because, regardless of whether or not there was a Fourth Amendment violation in this case, prior cases had not clearly decided that deadly force on facts like these was unreasonable. An offi cer is entitled to qualifi ed immunity unless prior cases have placed the question of a statutory or constitutional violation “beyond debate,” the Court explained. In prior
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