police4aqi

Police, The Fourth Amendment, Qualified Immunity

Police shooting at people in moving cars

with 3 comments

Let me start by laying out my opinion on this.  Police should not shoot at suspects in moving cars.  Period.  End of.  If the suspect is driving at the law enforcement officer, then the officer should focus on getting her body out of the way.  Even if the law enforcement officer hits the suspect, then suspect is, as likely as anything else, to keep driving at the law enforcement officer, and maybe even accelerate.  There is nothing magical about shooting someone that makes them take their foot off the accelerator, or swerve to the side.  The same is true if the suspect is driving at other people.  In fact, if the suspect is driving at other law enforcement officers, and they close enough to the fleeing vehicle that they cannot get out of the way, then, in addition to the fact that the bullets will not stop the fleeing vehicle, there is also the additional risk that the bullets will hit the other law enforcement officers.

Obviously, I feel strongly about this, so please, dear reader, indulge this rant just a bit longer.  Imagine that a civilian was going to be hit by a runaway vehicle — stuck accelerator, Incel terrorist, sudden heart attack, it doesn’t matter why — but the vehicle is coming right at the civilian and the civilian happens to be armed and shoots the driver dead.  How would the shooter’s defense of self defense fare in a case like that?  I think it would be laughed out of court.

However, the 2015 case of Mullenix v. Luna, 136 S. Ct. 305 disagrees with me.  It says that it is sometimes reasonable for police officers to shoot drivers for defensive reasons.  In the Mullenix case, the law enforcement officer / shooter was firing from a position of safety, and was allegedly trying to prevent the vehicle from hitting other police officers who were laying down a spike strip.  Terrible opinion that defies common sense for the simple reason that shooting at a vehicle doing 80-some miles per hour makes it less, rather than more, likely that the vehicle will stop or drive in a more predictable fashion.

The Mullenix case has had terrible consequences because it encourages police officers to get their bodies into the paths of vehicles of fleeing felons, or, probably in more cases, to say that they were in the path of a fleeing felon even if they really weren’t.  It is like a new loophole in the general rule against shooting at fleeing felons, and, notably, one that requires the law enforcement officer to put herself in danger, or at least pretend to.  For a tragic example of this kind of tomfoolery, see:  https://patch.com/maryland/perryhall/officer-amy-caprio-awarded-posthumous-departmental-honor (police officer posthumously gets award for getting into path of stolen vehicle, shooting at it and getting herself fatally run over in the process).

Now, the Mullenix case did not initiate the phenomenon of police shooting at fleeing vehicles.  My own interest in the subject goes back to 2002 when Officer Raymond S. Bunn killed Corey Ward,  See, https://police4aqi.wordpress.com/2014/05/17/justice-delayed-is-justice-denied-the-raymond-s-bunn-corey-ward-story/  However, I do think that Mullenix has already started to embolden police officers to try to “push the envelope” and expand this loophole in the general rule against taking potshots at fleeing suspects.  For example, Raymond S. Bunn was actually criminally charged.*  I don’t think that would happen now.  Instead, we are starting to see a whole bunch of civil litigation as courts try to draw the line between when it is reasonable to shoot a fleeing driver and when it is not.  Stated thusly, this is, of course, an impossible task because it is never reasonable to shoot a fleeing driver.

That lengthy prologue brings us to this week’s case:

Case:  Losee v. City of Chico, Court of Appeals, 9th Circuit 2018

What happened:  Facts are not as clear as they could be from the brief, “unpublished” Ninth Circuit opinion, but a fleeing driver apparently hit a utility pole and Chico Police Sergeant Scott Zuschin put himself behind the vehicle.  The vehicle started backing up slowly, so Sgt. Zuschin started firing upon the driver.  In an apparent response to being shot at, the driver then changed course, sped up and started heading in the general direction of a bunch of other police officers who then started shooting.  It is not clear which officer’s bullet(s) killed the driver.  The opinion does not state how many bullets missed the driver and went “downrange” toward fellow law enforcement officers.  The opinion does not state how far the other officers were from the vehicle or how fast it was going.**

Opinion:  Sgt. Zuschin does not get qualified immunity because it is pretty clear that he could have evaded the fleeing vehicle without shooting.  The other officers get QI because their alleged fear may have been reasonable.

Criticism:  This opinion makes things much more difficult than they need to be.  It was not reasonable for any of the officers to shoot at the car, and all the shooting made things more dangerous for the police officers. This is because the shooting caused the vehicle to accelerate (and perhaps drive erratically as well), and further because of all the flying bullets that did not hit the the fleeing Honda or ricocheted off of it.

Further criticism:  The officers behaved in a way that needs to be discouraged by the courts, and I don’t think that this Ninth Circuit opinion goes far enough in discouraging clearly unreasonable police behavior.

 

FOOTNOTE(S):

* A judge eventually threw out the charges before trial in a move similar to what happened in the prosecution of the officers charged with killing Freddie Gray.  You never seem to see that happen with non-police criminal defendants.

** I suspect that the officers in front of the vehicle did not fear for their lives because they stood there shooting instead of diving out of the way.  However, this is a difficult issue for myself, or a court or anyone to definitively opine upon.  It would not be a problem if courts established a simple rule that it is never reasonable to shoot at a fleeing motorist.

Written by Burgers Allday

July 1, 2018 at 10:29 am

Posted in Uncategorized

3 Responses

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  1. […] Motorist with broken taillight flees traffic stop, crashes into utility pole. Concerned for the motorist’s safety, a Chico, Calif. officer approaches her car from the rear, shoots at her as she backs the car up slowly. She changes course, accelerates—into the path of other officers and potentially the public—so the officer fires twice more. The other officers fire too. She dies. District court: Qualified immunity all around. Ninth Circuit: Reversed in part. No qualified immunity for the first officer. (H/t: Police4aqi blog.) […]

  2. AS the Supreme Court clearly said in 2007 in SCOTT V. HARRIS, allowing a subject to get away in a vehicle and flee will only encourage flight, and a policy or legal standard which prohibits officers from using their discretion as to whether it is reasonable to shoot or pursue a person fleeing in a vehicle will only encourage flight. Would you suggest that an officer being fired upon with a weapon should only seek cover and never fire back, and allow a person to escape because it is always safer to hide or seek cover than to confront a subject shooting at them? A vehicle driving towards an officer is a deadly weapon. Period. The driver directing the moving vehicle at an officer knows they will kill or severely kill the officer. This is a deadly force situation for the officer. You are saying they should always respond by getting out of the way (if even they can). What would stop the driver from steering at the fleeing officer diving for cover, in order to ensure that officer could not later pursue or fire at them as they fled? The answer is that motorists should comply with officer commands to stop the vehicle. They should not flee. And they most definitely should not drive towards an officer and force the officer to dive for cover to save their lives. Officers are not supposed to allow subjects using deadly force directed at them to get away, if they can otherwise stop them.

    Steve Surry

    July 6, 2018 at 5:03 pm

  3. […] Motorist with broken taillight flees traffic stop, crashes into utility pole. Concerned for the motorist’s safety, a Chico, Calif. officer approaches her car from the rear, shoots at her as she backs the car up slowly. She changes course, accelerates—into the path of other officers and potentially the public—so the officer fires twice more. The other officers fire too. She dies. District court: Qualified immunity all around. Ninth Circuit: Reversed in part. No qualified immunity for the first officer. (H/t: Police4aqi blog.) […]


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