Plumhoff v. Rickard

Prior Decisions on the Use of Force

Section 1983 of Title 42 of the United States Code (U.S.C.) provides a cause of action against state officials for deprivations of constitutional rights under color of state law. Prior to the shooting incident in Plumhoff, the U.S. Supreme Court has established case precedent in guiding police officers in their use of force in accordance with the Fourth Amendment ( Tennessee v. Garner, 1985; Graham v. Connor, 1989). In their decision in Garner, the Court explained that if an officer has probable cause to believe that a suspect poses a threat of serious physical harm, either to the officer or to others, it is not unconstitutionally unreasonable to prevent escape by using deadly force. In Garner, a Memphis police officer responded to a call of a prowler. On scene, the officer observed someone run across the backyard, commanded him to stop, and observed that the person did not have a weapon. As the youth climbed a fence to escape, the officer shot him. Writing for the majority, Justice White stated that the use of force was unconstitutional. Further, Justice White explained that in excessive force claims, the matter of a seizure arises under the Fourth Amendment, and a court must balance the need for the seizure against the nature and quality of the seizure to determine whether the seizure was reasonable. The Court outlined several rules to guide officers in deciding to use deadly force including deadly force may be warranted to prevent an escape or to protect a citizen when an officer has probable cause to believe the person is escaping; if a suspect threatens an officer with a weapon or there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm; and when feasible, the officer should give a warning prior to using deadly force.

Liability attached in Garner as there was a lack of a threat of harm to the officer or others. Hence, if a person is attempting to escape on foot without an apparent weapon, deadly force would not generally be justified. A person escaping by vehicle, however, will likely justify the use of deadly force, if the officer could have believed the person in the vehicle posed a threat of death or serious injury to the officer or others.

In Graham v. Connor (1989), the Court extended the principle of seizure beyond deadly force cases to all excessive force cases where the person is a “free citizen.” In Graham, officers of the Charlotte, North Carolina police department made an investigatory stop of a diabetic suspect. Graham exited his car, ran around it twice, and passed out. Backup officers responded and they handcuffed him and forcefully placed him over the hood of the car to search him. One of the officers believed that he was drunk, but a friend reported that he was diabetic and requested to provide him with some orange juice but was denied. Graham was later released but sustained a broken foot, cuts on his wrists, a bruised forehead, an injured shoulder, and ringing in his ears. Graham filed a §1983 action claiming excessive force. The district court and the Fourth Circuit Court of Appeals found in favor of the officers and Graham appealed to the U.S. Supreme Court. The Court rejected the lower court’s standard of review and determined that all excessive force claims brought against police officers will be analyzed under the Fourth Amendment and its reasonableness standard rather than under a substance due process approach.

The standard of review established in Graham is one of “objective reasonableness,” and a Court must balance the Fourth Amendment right to be free from an unreasonable seizure against the countervailing governmental interests at state. The Court explained that the reasonableness inquiry in an excessive force case is an objective one, and the question is whether the officers’ actions are objectively reasonable, given the totality of circumstances, without regard to their underlying intent or motivation. The Court developed the following guidelines when assessing a claim of excessive force noting that there is no precise or mechanical application possible for the test of reasonableness, and careful attention to the facts and circumstances of each case must be considered: (1) severity of the crime at issue, (2) whether the suspect poses an immediate threat to the safety of the officers or others, and (3) whether the suspect was actively resisting arrest or attempting to evade arrest by flight. The decision is in deference to police officers, and the Court noted that officers must frequently make split-second decisions in rapidly evolving circumstances, the perception of the officer on scene must be considered, and the assessment is not to be made with 20/20 hindsight. The Court endorses a “reasonableness at the moment” standard that requires fact finders to take into account the unpredictable and rapid dynamics of the arrest environment. The Court remanded the case based on the established criteria and the officers prevailed.

Lower courts have specifically examined suspect flight and have recognized the dangerous circumstances posed by their willingness to risk their lives and others to elude apprehension by the police. Fleeing suspects will use desperate tactics to attempt to outrun the police and to avoid capture, placing them in dangerous situations, as they will proceed through red lights and stop signs without stopping, ram other motorists with their car, ram officers’ vehicles, proceed in the opposite direction of oncoming traffic, and operate their vehicle at high speeds violating posted speed limits and attempting to strike or strike officers with their vehicles ( Sykes v. United States, 2011). In a series of case decisions, lower courts have determined that the suspect used their vehicle in a dangerous and lethal manner which provided the responding officers with probable cause to believe that the vehicle posed a threat of serious physical harm or death to the officer or others, justifying the use of deadly force ( Abney v. Coe, 2007; Edmunson v. Keesler, 1996; Medeiros v. Town of Dracut, 1998; Pace v. Capobianco, 2002; Robinson v. Arrugueta, 2005; Scott v. Clay County, 2000; Smith v. Freland, 1992; Terrell v. Smith, 2012; Van Vorous v. Burmeister, 2004; Wilkinson v. Torres, 2010; Wilson v. Meeks, 1995). In each of these cases, the Court concluded that the officer faced gravely dangerous situations, formed the perception to shoot within seconds, the officer shot to in self-defense or shot to protect another, and the use of deadly force was objectively reasonable. Indeed, in Scott, Smith, and Van Vorous, the Sixth Circuit Court of Appeals noted that a car can be used as a “deadly weapon” and the officer’s use of deadly force was reasonable to protect others from injury.

In two additional Supreme Court decisions, the Court has opined that the use of deadly force against a fleeing motorist was objectively reasonable consistent with their decision in Graham. In Brosseau v. Haugen (2004), the Court examined the use of deadly force of a suspect who was shot in the back while attempting to flee from an officer in a jeep. Officer Brosseau engaged in a foot chase with Haugen who had a warrant for his arrest. Haugen jumped into a jeep and prepared to drive away as officer Brosseau instructed him to stop and get out as she pointed her firearm at him. Officer Brosseau tapped her gun on the window shattering it, and Haugen began to move forward. Officer Brosseau fired one round from her firearm through the rear window, and the round struck Haugen in the back. Haugen stopped his vehicle after traveling half a block and suffered a collapsed lung. Haugen survived the incident and filed a §1983 suit claiming excessive force. Officer Brosseau stated that she fired her firearm because she feared that Haugen might run over other officers or citizens in the immediate area. The district court granted summary judgment to officer Brosseau, but the Ninth Circuit Court of Appeals reversed holding that she had violated Haugen’s Fourth Amendment right to be free of excessive force and the right was clearly established, denying her qualified immunity. The Supreme Court reversed the Ninth Circuit’s holding, finding that officer Brosseau had probable cause to believe deadly force was justified based on Haugen’s dangerous actions which posed a threat to others. The Court also held that qualified immunity should have been granted as former case decisions in similar fact patterns as demonstrated in this case were awarded qualified immunity (further explanation of qualified immunity from this case is discussed in the next section).

In Scott v. Harris (2007), the Court recognized that a suspect eluding the police in a car and driving it recklessly at excessive speeds posed a risk of danger to the police and citizens. Deputies attempted to make a traffic stop of Harris who was driving 73 miles/hr in a 55-mile/hr speed zone. Rather than stop, Harris led the deputies on a 9-mile, 6-min pursuit, which reached speeds of 90 miles/hr, and the chase was recorded on Deputy Scott’s in-car camera. During the pursuit, Harris narrowly missed oncoming traffic and posed a threat to the community. After acquiring authorization, Deputy Scott bumped Harris’ bumper, causing him to run off of the roadway and crash. Harris survived but was rendered a quadriplegic and sued under §1983 claiming excessive force. The Eleventh Circuit Court of Appeals affirmed the lower court’s denial of summary judgment holding that it is was clearly established that ramming a vehicle under this type of situation was unlawful and Scott was not entitled to qualified immunity. The Court reviewed the case and found that Harris moved shockingly fast down narrow roads, forced cars to the shoulder, engaged in hazardous maneuvers as he led the police in a Hollywood car chase and placed the police and bystanders at great risk of serious injury, as seen on the video. The Court concluded that Scott’s actions of bumping Harris’ car was reasonable under the Fourth Amendment and awarded him qualified immunity. The Court noted that Harris’ reckless driving and vehicular flight represented a deadly hazard for the public and that the officers have a duty to protect them from suspects who may kill or seriously injure others.

In Brosseau, Scott, and Sykes, the Court examined the dangerousness the officers faced when the suspect drove the vehicle in a reckless manner creating an extreme risk of harm, serious injury, and death and using the vehicle as a deadly force weapon. In Brosseau and Scott, the Court reaffirmed that the standard of review of excessive force claims involving fleeing motorists is that of objective reasonableness as set forth in Graham. The threat assessment on a given set of factual circumstances by the officer is central to a determination of whether deadly force was reasonable under the Fourth Amendment. The lower court cases identified also underscore the Supreme Court’s established force principles by awarding summary judgment to officers noting that the suspect assumes the risks of injury or death when they engage in reckless and dangerous behavior that jeopardizes the public and the officers’ safety. Officers are predominately granted qualified immunity when they can demonstrate that they reasonably believed that their actions were appropriate by stopping the dangerous fleeing suspect to protect themselves and the public.

Qualified Immunity

Citizens, prisoners, and illegal aliens may file a civil action under Title 42 U.S.C. §1983 when alleging a constitutional right violation. Criminal justice personnel in general are granted qualified immunity. Under this doctrine, governmental officials cannot be held individually liable for federal civil rights violations unless their conduct violated a “clearly established right of which a reasonable person would have known” (Stone & Berger, 2009). Qualified immunity is based on the performance of discretionary acts. Discretionary acts are activities that require deliberation or judgment. This includes numerous tasks, but the courts determine the functions in which officers possess immunity. Since 1982, the Supreme Court has rendered 10 decisions regarding the issue of qualified immunity. For purposes of this analysis, only those cases that have significance on granting qualified immunity regarding an officer’s use of reasonable force will be reviewed.

There are two reasons for granting qualified immunity. First, without such immunity, there would be a disincentive for officers to act in areas of constitutional uncertainty, even though their acts may later be judged constitutionally permissible. Granting qualified immunity encourages reasonable officers to enforce the law vigorously within constitutional boundaries. It provides breathing room to make reasonable but mistaken judgments. Of course, acting outside the boundaries of the constitution deimmunizes the officer. Second, immunity for criminal justice personnel is provided to avoid trial and even discovery in some cases. This is premised on the philosophy that immunity issues should be resolved prior to trial. The problem that frequently emerges, however, is whether an officer’s actions were reasonable under the circumstances, or whether they violated the plaintiff’s constitutional rights. For example, whether the use of force is reasonable or unreasonable under the circumstance, and a reasonable officer would know that it is unreasonable, may influence the Court to allow a jury to determine the issue at trial. Therefore, qualified immunity shields and protects officers from suit unless their actions “violated clearly established law” (Harlow v. Fitzgearld, 1982; Ashcroft v. al-Kidd, 2011).

A plaintiff seeking to defeat a claim of qualified immunity must prove that the defendant officer violated a constitutional right, and the right at issue was clearly established at the time of the alleged misconduct ( Pearson v. Callahan, 2009). A right must be established in a particularized sense so that the contours of the right are clear to a reasonable officer. “Clearly established means a reasonable officer understands whether their actions violate a suspect’s rights because the contours of the right are clearly defined” ( Ashcroft v. al-Kidd, 2011, p. 9). Once the right is properly framed, a court will determine whether every reasonable official would have understood that what he is doing violates that right ( Reichle v. Howards, 2012). This requires a precedent case and a robust consensus of cases of persuasive authority establishing that the official’s conduct was unconstitutional ( Ashcroft v. al-Kidd, 2011). Although the authority need not be directly on point, it must be sufficiently similar to place the relevant constitutional question “beyond debate.”

The Court has addressed qualified immunity, specifically with respect to an officer’s use of force. In Saucier v. Katz (2001), Katz was protesting a speech of then Vice President Al Gore at a military base. He was approaching the podium when two military police officers grabbed him and escorted him away and into a van. Katz complained that the officers used excessive force, although he sustained no injuries. He filed a civil rights claim, asserting that his Fourth Amendment rights had been violated. The officers asserted a defense of qualified immunity and the lower granted summary judgment, but on appeal, the Ninth Circuit Court of Appeals denied qualified immunity. The Ninth Circuit held that qualified immunity and a constitutional violation issue should be treated as one issue before the trier of fact. The Supreme Court granted certiorari to address the requisite analysis in determining qualified immunity in situations involving excessive force and reversed the appellate court’s holding.

In Saucier, the Supreme Court reemphasized that the doctrine of qualified immunity protects government officials performing discretionary functions from liability as long as their conduct does not violate the constitutional rights of another. The Court restated that qualified immunity is a defense but added that a ruling for qualified immunity requires an analysis not susceptible of fusion with the question of whether unreasonable force was used in making an arrest. Issues centering on qualified immunity must be taken in proper sequence and based on the merits of each case. The Court established a two-part test for determining whether qualified immunity applies. First, in the initial inquiry, the court must consider the “threshold question”: taken in the light most favorable to the party asserting the injury, do the facts alleged show that the officer’s conduct violated a constitutional right? If the facts as alleged by the plaintiff fail to establish a violation, then immunity applies. Second, if the alleged facts sufficiently demonstrate a constitutional violation, the Court must determine whether the right was clearly established. In making this determination, the court must assess whether the right claimed must be more than merely a generalized right, it must be clearly established in a particularized sense so that a reasonable official in the defendant’s position knows that his or her actions violate that right. If the Court determines that these two components are met in a motion for summary judgment, the Court will grant such a motion.

The Court further clarified the issue of qualified immunity in Brosseau v. Haugen (2004). As described earlier, the Court reversed the Appellate Court’s decision, finding that Brosseau’s actions were reasonable within the “backdrop of the established law at the time of the conduct” when she shot a fleeing suspect. The Court underscored the two-part test established in Saucier by noting that qualified immunity operates “to protect officers from liability.” The Court noted that while Garner and Graham provide standards of review when assessing claims of excessive force, the standard is general and may apply to varying circumstances. According to the Court, the shooting in Brosseau did not “clearly” underscore established law of shooting a “fleeing suspect in a vehicle” that would preclude granting qualified immunity. The Court held that the shooting is far from the obvious one where Graham and Garner offer a basis for such a decision. Because the plaintiff could only show a “handful” of cases relevant to the shooting, the Court held that the case was by no means “clearly established” that Brosseau’s conduct violated Haugen’s Fourth Amendment rights. The Court granted qualified immunity as there were civilians and officers in the neighborhood and that Haugen was continuing his efforts to flee from the police.

Qualified immunity applies to the discretionary functions of officers and is available on an individual basis. It is an affirmative defense made by an officer through his or her counsel. A court examining a Fourth Amendment claim must resolve all disputes about the facts in favor of the plaintiff, but then the Court must draw inferences from the facts that a reasonable officer could arguably draw regarding the threat posed by the suspect. The distinction is consistent with normal summary judgment rules because the question of what conclusions a reasonable officer is entitled to draw from these facts is a matter of immunity law, not a factual issue. As long as an officer can demonstrate that the force used in a particular circumstance was objectively reasonable, in light of clearly established law and the facts presented before him or her, qualified immunity would apply.

The preceding overview of the Court’s decisions on use of force standards and litigation and qualified immunity principles provides a foundation for assessing the Court’s decision in Plumhoff v. Rickard (2014). The Court granted certiorari to further clarify whether deadly force was objectively reasonable when a motorist dangerously fled from officers and whether such conduct merited qualified immunity

Facts of the Case

Officer Joseph Forthman, of the West Memphis police department, made a traffic stop of Donald Rickard, after observing the vehicle had an inoperable headlight, on July 18, 2014, just prior to midnight. Kelly Allen was a passenger in the vehicle and sat in the front seat. As officer Forthman approached the driver’s side of the vehicle, he noticed a large indentation in the windshield. Officer Forthman requested that Rickard produce his license and registration and inquired about the windshield. Allen responded, commenting that the windshield was broken as the car had hit a curb earlier. Officer Forthman asked Rickard if he had been drinking and instructed him to exit the car twice. Rather than comply, Rickard sped off and headed toward the Arkansas and Tennessee border.

Forthman radioed that he had a “runner,” that Rickard had fled from a traffic stop, and he began to pursue him. Officer Plumhoff responded to the radio call, became the lead unit, and they were joined in the pursuit by four other officers in separate patrol cars. Portions of the pursuit were captured by the in-car cameras of the officers’ patrol cars. In an attempt to flee from the officers, Rickard recklessly and dangerously drove his vehicle in and out of traffic, nearly struck other motorists, and drove at speeds of about 100 miles/hr. Rickard crossed the Mississippi River, entered Tennessee, and drove off of the interstate onto the side streets of Memphis. The pursuit lasted about 5 min.

The officers attempted a “rolling roadblock” and officer Plumhoff advised over the radio that Rickard had rammed his patrol car. Officer Plumhoff further advised other officers that aggravated assault charges would be filed against Rickard. As the pursuit continued, Plumhoff again advised that Rickard had struck his vehicle. At one point, Rickard quickly turned his vehicle and struck another patrol car and spun around in a parking lot, colliding head on with officer Plumhoff’s vehicle. Rickard’s vehicle stopped momentarily adjacent to a building, other officers stopped their patrol cars near Rickard, exited their cars, and approached Rickard. As officers approached Rickard’s vehicle, he began to back up in an attempt to further elude the officers. An officer banged his firearm on the window of Rickard’s car. Rickard spun the tires, moved forward, and struck another police vehicle. Officer Plumhoff approached Rickard’s vehicle, with his firearm drawn and fired three rounds at Rickard. Rickard maneuvered his car around the officers’ cars and began to flee down the street forcing officer Gardner to move to the side to avoid being struck. Officer Gardner fired 10 rounds at Rickard’s vehicle from the passenger side and then from the rear of the vehicle as Rickard sped away. Simultaneously, officer Galtelli fired two rounds into Rickard’s vehicle. Rickard lost control of the vehicle and crashed into a building. Rickard died from multiple gunshot wounds, and Allen died from a combination of one gunshot wound to the head and from the effects of the crash.

The video of the incident revealed that Rickard nearly struck 29 motorists with his vehicle in attempting to elude the officers, struck one patrol car twice, another patrol car once, and nearly struck an officer as he sped away from them. The officers fired a total of 15 rounds at Rickard’s vehicle. Officer Plumhoff fired 3 rounds, Officer Gardner fired 10 rounds, and officer Galtelli fired 2 rounds. The family of Rickard filed a §1983 action against the six officers, the chief of police, and the mayor alleging that the officers used excessive force in violation of the Fourth Amendment.

The officers filed for summary judgment stating that they were entitled to qualified immunity. The officers argued that they had not violated the Fourth Amendment and that, even if they had, it was not “clearly established” in 2004 that their actions violated Rickard’s Fourth Amendment rights. In support of their motion, they submitted three videos of the pursuit, sworn affidavits, and deposition testimony by the officers. Officers Plumhoff, Gardner, and Galtelli stated in their depositions that they feared for their lives as Rickard’s actions threatened them with serious bodily injury or death and that Rickard posed a threat of harm to the public. The district court denied the officers qualified immunity, concluding that the undisputed facts did not support the assertion that their actions were in compliance with the Fourth Amendment.

The district court ruled that officer Plumhoff had fired his rounds into the side of Rickard’s vehicle not from the front of it, officer Gardner and Galtelli had fired their firearms as Rickard was passing or had passed them, no officers thought that Rickard or Allen was armed, and Rickard was initially stopped for driving with an inoperable headlight, a misdemeanor under Arkansas law. The district court further ruled that since the videos did not show Rickard’s vehicle actually striking an officers vehicle, whether they were assaulted was disputed and ruled that deadly force was unjustified. The court determined that Rickard’s dangerous driving irrelevant, the officers caused him to drive dangerously as they initiated the pursuit, and a reasonable officer would have known to end the chase. The district court also dismissed the officers’ argument that Rickard had threatened their safety at the scene of shooting and that it was disputed whether he “revved” the engine when Officer Plumhoff fired his firearm, and the Court noted that when Officers Gardner and Galtelli fired their firearms, Rickard was driving away from them. Finally, the district court denied the officers’ qualified immunity, as the court determined that it was “clearly established” in 2004 that using deadly force by officers against a fleeing motorist was a clear violation of the Fourth Amendment. The Court determined that the facts did not support a finding that a reasonable officer would conclude that Rickard, a fleeing suspect, presented a clear risk to others.

The officers filed an appeal to the Sixth Circuit Court of Appeals and a motions panel dismissed the appeal for lack of jurisdiction. Later the panel granted a re-hearing that affirmed the district court’s decision. The motions panel opined that previously the Sixth Circuit had interpreted the U.S. Supreme Court’s decision in Scott v. Harris (2007) and created an “exception” to reviewing the whole record of a case to determine whether disputed issues of material fact were clearly incorrect. By creating an “exception rule”, the Sixth Circuit had created a higher standard of review contrary to the Supreme Court’s decision in Scott. The motions panel held that the officers were not entitled to qualified immunity because viewing the facts in the light most favorable to Rickard, it concluded that the officers’ conduct was unreasonable as a matter of law. The panel held although the facts in Scott were similar, Rickard was stopped and surrounded by officers and police cars when they fired 15 shots at close range, while in Scott, the vehicle was still moving when the officer used his patrol car to end the chase. The panel also noted that there were no passengers in the vehicle in the Scott case, while in this case, passenger Allen was in the front seat. The panel, however, did not address whether the officers violated “clearly established law” within the meaning of the Fourth Amendment.

The officers appealed to the U.S. Supreme Court. The Court granted certiorari to examine the following two primary issues: (1) whether the officers’ use of force was excessive under the “totality of circumstances” in violation of the Fourth Amendment and (2) whether the officers were entitled to qualified immunity.

Use of Force Analysis

After affirming that the Sixth Circuit had jurisdiction to hear the case, the Court addressed the issue of excessive force. Rickard’s family argued two main elements under the Fourth Amendment. First, the family argued that the Fourth Amendment did not authorize the officers to use deadly force to terminate the chase. The Court began their use of force analysis (consistent with qualified immunity sequential steps) by reaffirming their decisions in Graham, Garner, and Scott. The Court restated that analyzing an excessive force claim must be performed from the perception of a reasonable officer on the scene and not from 20/20 hindsight, as police officers are often forced to make split-second decisions in circumstances that are tense, uncertain, and rapidly evolving.

Reviewing their decision in Scott, Justice Alito opined that the Court made it quite clear that deputy Scott did not violate the Fourth Amendment when he used his vehicle to terminate the chase. In Scott, the Court reviewed the case documents and the chase video and determined that “a police officer’s attempt to terminate a dangerous high-speed chase that threatens the lives of innocent bystanders by using deadly force did not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death” (p. 386). Using Scott as a foundation, Justice Alito explained that in this case, Rickard’s own actions of eluding the police imitated the chase with police in which he exceeded 100 miles/hr, lasting over 5 min, passing more than two dozen motorists, in which several had to move out of the way. Justice Alito explained that Rickard posed a grave public risk by driving outrageously and recklessly and struck police officers vehicles and that he temporarily stopped the chase but quickly spun his tires and drove off in an attempt to escape. The Court concluded that under the circumstances and based on Rickard’s conduct, a reasonable police officer could have concluded that Rickard’s intent was to elude the officers and that he continued to pose a deadly threat justifying the use of deadly force. The Court further explained that as in Scott, Rickard posed a grave public safety threat, and as in Scott, the officers used reasonable force in using deadly force to stop the risk.

Second, the family postulated that the degree of force was excessive and even if they were permitted to shoot 15 rounds, it was excessive. The Court rejected this assertion. In addressing this issue, the Court specifically focused on Rickard’s actions which comport with the force assessment criteria developed in Graham. Justice Alito specified that Rickard posed a severe threat to public safety, he never abandoned his attempt to flee, he refused to end the chase, he led the officers on a 5-min chase which clearly created a risk to oncoming motorists, he struck several police vehicles, and he almost struck a police officer with his vehicle. Rickard’s actions fit squarely within the force assessment criteria and within the totality of circumstances framework, justifying the officer’s use of deadly force.

Justice Alito noted that the officers fired 15 shots in response to Rickard’s actions and the significant risk that he posed to the public. Justice Alito opined that the officers did not fire more rounds than was necessary to end the public safety risk, and it made sense that if they were justified in shooting, the officers needed to shoot until the threat of risk had ended. The number of shots that were fired was reasonable, as Rickard never abandoned his attempt to flee from the officers and was driving away still posing an immediate threat as the officers shot. Justice Alito noted that had Rickard stopped his vehicle, stopped his threat, or simply given himself up after the first round of shots fired by the officers, any additional shots fired by them would have been considered excessive force. Rickard, however, did not stop his threat and continued to attempt to drive away from the officers even after being shot by the officers. Given the danger Rickard posed to the officers and the public throughout the incident, the officers’ actions including deadly force were objectively reasonable.

Within the argument of shooting too many rounds into the vehicle as excessive, Rickard’s family also attempted to argue that it was unreasonable to shoot due to the presence of passenger Allen. Justice Alito ruled that this factor did not alter the equation, holding, consistent with prior decisions, that personal rights cannot be vicariously asserted ( Alderman v. United States, 1969). A passenger in the same vehicle does not enhance another’s Fourth Amendment rights. Justice Alito, noted that it was indeed Rickard who placed Allen in danger by fleeing and refusing to end the chase.

Qualified Immunity Analysis

The Court addressed the second issue, qualified immunity. First, the Court reiterated that the officers did not violate Rickard’s Fourth Amendment rights, but even if they had, they would have been entitled to qualified immunity because at the time of the shooting, the law was not clearly established. The Court explained that an official sued under §1983 is entitled to qualified immunity unless the official violated a constitutional right that was clearly established at the time of the conduct ( Ashcroft v. al-Kidd, 2011). The Court reminded the lower courts that there was no existing precedent case law which placed the constitutional question “beyond debate.” The Court further reminded the lower courts not to “define clearly established law at a high level of generality.”

Second, the Court distinguished the actions of Rickard from their decision in Brosseau. Justice Alito emphasized that the facts in Rickard were more favorable to the officers than those encountered by the officer in Brosseau. In Brosseau, one officer fired only one shot; and in this case, three officers fired a number of 15 rounds. The officers in Rickard fired to end the prolonged chase that lasted about 5 minutes, reached speeds of over 100 miles/hr, which indisputably posed a danger to the officers and the public. The Court opined that Brosseau demonstrated that no clearly established law precluded the officers’ conduct. To prevail, the Court specified that Rickard’s family had to show that the officers’ conduct was materially different from the conduct in Brosseau or between 1999 and 2004, there was a robust consensus of cases which underscored a “persuasive authority.” The Court noted that Rickard’s family could not identify one case that would manifestly underscore that the law was clearly established not to use deadly force to end a high-speed chase. Failing to overcome the established components needed to defeat qualified immunity, and under the circumstances the officers encountered the Court held that the officers’ use of deadly force to terminate a dangerous chase was objective reasonable. It was not clearly established in 2004 that it violated the Fourth Amendment to use deadly force to prevent the flight of a motorist who operated a vehicle recklessly during a high-speed chase and in a close quarters with police. The Court awarded the officers qualified immunity as they found the officers did not violate clearly established law.

Implications

There are several implications that emerge from the Court’s decision. Frist, the lower courts are reminded of how to assess issues pertaining to qualified immunity, particularly in use of force cases. At its core, qualified immunity is intended to avoid unwarranted timidity in performance of public duties ensuring that police officers are not deterred from carrying out their duties appropriately. To deny officers qualified immunity, it must be shown that they violated clearly established law so that they can reasonably anticipate when their conduct may give rise to liability. In granting the officers qualified immunity, the Court reminded lower courts and particularly the Sixth Circuit that such an evaluation must be in accordance with their decision in Saucier and the evaluation must be undertaken in light of the specific context of the case, not as a broad general proposition.

In denying the officers qualified immunity, the Sixth Circuit improperly applied the law and shirked its obligation to identify the “clearly established” law the officers allegedly violated in July 2004. The correct standard, as reiterated by the Court—which was never discussed by the Sixth Circuit—is whether the right was sufficiently clear that every reasonable official would have understood what he or she is doing violates that right. The Sixth Circuit denied immunity on the ground that they could not conclude that the officers’ conduct was reasonable as a matter of law. Indeed, the Sixth Circuit’s denial of qualified immunity in this case directly contravened the Court’s prior decisions and their own previous decisions on qualified immunity and deadly force even before Rickard (i.e., Scott v. Clay County, 2000; Smith v. Freland, 1992; Van Vorous v. Burmeister, 2004).

Second, the decision provides a reminder of the Court’s principles regarding using deadly force in accordance with Graham as applied to vehicular flight of fleeing motorists who pose a grave risk of harm to the community and to the officers. Officers are reminded that the Fourth Amendment law authorizes them to make inferences about a suspect’s behaviors and from the circumstances encountered in determining the existence of probable cause to believe a suspect poses a threat of serious physical harm ( Tennessee v. Garner, 1985). Whether force appears reasonable is measured from the perspective of the officer at the moment the officer decided to use it. As noted in Graham, Saucier, Brosseau, and Rickard, the test for reasonable force requires deference to the perception and judgment of a reasonable officer on scene. In Rickard, like Scott, the reasonableness analysis relied on officer inferences and perceptions, and they were permitted to conclude that the suspect would be a threat to the public if officers called off the pursuit. Reckless driving in a high-speed pursuit does pose a significant risk to other people as well as to the officers. Probable cause law entitles an officer to make these inferences so long as they are reasonable. Graham requires courts to recognize that the calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second decisions—in circumstances which are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation. Further, the Court concluded in Scott, there is no magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute deadly force.

Third, the Court squarely addressed the issue of the number of rounds fired. Rickard’s family argued that 15 rounds fired by the officers and firing as he drove away from the officers’ clearly demonstrated excessive force. The Court, however, disagreed. Many cases hinge on the issue of whether the suspect presented an immediate threat of harm to the officer or others, and officers are trained to assess human behaviors to determine their response and degree of force that may be used. Threat assessment is part of the training officers receive and quick furtive movements and gestures, attempts to elude the officer, failing to show the hands, looking for avenues of escape, position, and stance of a suspect are all indicators of behaviors that are commonly associated with prospective threats and danger. Although these behaviors are subtle, more obvious indicators of an immediate threat would include driving a vehicle recklessly and dangerously, which created an immediate threat to the safety of the public and the responding officers. In accordance with Graham, Broesseau, and Scott, the reasonableness of an officer’s threat assessment on a given set of facts is central to a determination of whether deadly force was reasonable under the Fourth Amendment.

Officers are not trained or required to shoot to wound, nor are they trained to shoot warning shots prior to responding with deadly force. Officers are trained that when using deadly force to shoot until the threat is eliminated and depending upon the facts of the circumstances, may mean that several rounds may be necessary to stop the threat. Rickard’s reckless and dangerous driving of his vehicle posed an immediate threat to the officers and to the public, and the officers properly perceived and formed the belief that deadly force was necessary to end the threat. The number of rounds fired by the officers is constitutionally irrelevant because Rickard (as seen on video) remained a threat even after the deadly force was employed. At the very least, the firing of 15 shots at a motorist, over about 10 seconds, to end an immediate severe threat posed by a motorist, who repeatedly demonstrated that he had no intentions of stopping the threat, warranted a deadly force response and did not violate the Fourth Amendment. Justice Alito confirmed the fact officers are trained to keep shooting until the threat is stopped, thereby justifying the use of deadly force, and in this case, it was reasonable to shoot until the severe threat to public safety had ended.

Fourth, there are several policy and training issues that emerge from the Court’s decision. Police administrators are encouraged to review and revise their current use of force and pursuit policies consistent with this decision. As a matter of policy, individuals who pose a risk of harm to the public must not be encouraged to flee simply because officers cannot engage in high-speed pursuits. Pursuit policies should be crafted which authorizes officers to pursue individuals who drive dangerously and threaten officers and the public at large with their vehicles. Separate policy language regarding the officer’s development of probable to use deadly force should be written, which addresses the prevention of a person escaping from the officer who poses a threat of serious bodily harm or death to officers and to the public at large, consistent with the Rickard’s, Graham’s, Scott’s, and Brosseau’s decisions. Policy language should be written which allows for the degree of force to be determined based upon the perception of the officer within the totality of circumstances.

Training officers in policy revisions should be conducted to ensure their decisions and actions comport with the law and departmental policy and to keep them accountable (Lee & Vaughn, 2010). Police administrators should provide training to their officers on use of force legal issues and principles that emerge from Rickard, Graham, Scott, and Brosseau. Part of the training should include reviewing the videos from Rickard and Scott and other similar deadly force incidents. Officers should further receive ongoing training in threat assessment and human behavioral cues and pattern recognition. Ongoing training in threat assessment is critical for officers to associate a degree of force with a threat and associate discontinuing force with the termination of a threat (Petrowski, 2002). Officers should regularly be exposed to simulation training and scenario-based training which have embedded threat and assault cues that will assist officers in calculating, planning, and justifying their response to a dangerous situation (Ross, Murphy, & Hazlett, 2012). Participating in such training on a regular basis will build expertise in threat assessment, by cuing into the dynamics of suspect’s behaviors, perception formation, and decision making about the appropriateness of using deadly force. Officers should continue to be taught to gauge their decisions to use force in response to a suspect’s behaviors and to use reasonable deadly force until the threat is eliminated, in accordance with the dynamics of the circumstances. Officers are encouraged to maintain situational awareness as they approach a vehicle in order to maximize their own personal safety.

With their decisions in Rickard, Graham, Scott, and Brosseau, the Court has provided consistent assessments of claims of excessive use of force by reaffirming the objectively reasonable standard in conjunction with the perception of the officer. Although these decisions are in deference to the police, officers should not be distracted from continuing to participate in ongoing training and adhering to case decisions that direct their use of force decisions. Continuing to justify all uses of force based on a suspect’s behaviors and actions in accordance with the Court’s legal parameters and the standard of objective reasonableness will ensure that officers are granted qualified immunity.