Expanding the authority of police to use deadly force to stop a high-speed chase on streets and highways, the Supreme Court ruled Tuesday that police may start shooting at the fleeing vehicle and keep on shooting until they are satisfied that the threat to safety is at an end. The ruling had mostly unanimous support, but two of the nine Justices had qualms about the number and sequence of shots fired in this particular case.
The decision in Plumhoff v. Rickard grew out of a chase ten years ago that crossed a state line from Arkansas into Tennessee, and continued even after police had appeared to have the fleeing car cornered on the streets of Memphis. At that point, as the driver still tried to get away, the police opened fire, and kept shooting as the car sped away and then crashed, with both the driver and a passenger killed.
The action of police throughout, the Court ruled, did not violate the constitutional rights of the driver. The lawsuit was filed by the driver’s daughter. The Court did not rule on whether the estate or relatives of the dead passenger might have a constitutional claim.
Seven years ago, in Scott v. Harris, the Court had ruled that police could use deadly force to seek to end a high-speed chase, allowing there the ramming of the fleeing vehicle, even if that resulted in a crash with grave physical injuries to the driver of that car. That decision involved no use of police guns. That is what made the new case different.
In all, the West Memphis officers fired fifteen shots, some while the vehicle seemed to have been boxed in, and the remainder after it sped off again. The driver and passenger died from the gunshot wounds and from injuries when the car crashed.
Justice Samuel A. Alito, Jr., wrote the Court’s main opinion. On whether officers had used “unreasonable” force to stop the chase, the decision had two main points. First, it ruled that the tactics the officers used — including the shooting — did not violate the driver’s Fourth Amendment rights. Justice Ruth Bader Ginsburg refused to go along with that ruling, and Justice Stephen G. Breyer joined her in refusing specifically to sign onto the discussion aimed specifically at the fifteen-shot volley.
Second, the Court was unanimous in ruling that the lawsuit against the police officers could not succeed in any event, because it was not clearly established as constitutional law at the time of this incident that police could not shoot to stop a high-speed vehicle chase. Justice Ginsburg expressly added her vote to that portion.
On the shooting part of this controversy, Justice Alito wrote that it was up to police to decide whether the chase had ended when they started shooting. At that point, the opinion said, it would have been reasonable for a police officer to have concluded that the driver of the fleeing car was determined to continue to try to get away and thus would continue to pose a danger. The fact that the driver was able to keep his vehicle moving after the shooting started, the opinion said, showed that the threat was not yet over.
In the specific paragraphs in the opinion discussing the volley of fifteen shots (the one section that both Justices Ginsburg and Breyer would not endorse), Justice Alito wrote: “It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.”
Officers are trained, the opinion commented, that if they are entitled to use lethal force, that they are “to keep shooting until the threat is over.” The opinion left no doubt that it is up to the police to make that on-the-spot determination, and thus to then cease firing.
It took only ten seconds, the opinion said, for all of the police shooting to occur in this case and the driver did not, in that interval, abandon the attempt to flee.
Justice Alito added a qualification: “This would be a different case if [these officers] had initiated a second round of shots after an initial round had clearly incapacitated [the driver] and ended any threat of continued flight, or if [the driver] had clearly given himself up. But that is not what happened.”
The Alito opinion was joined in full by Chief Justice John G. Roberts, Jr., and Justices Elena Kagan, Anthony M. Kennedy, Antonin Scalia, Sonia Sotomayor, and Clarence Thomas.
Justices Ginsburg and Breyer did not write separate opinions. Footnotes to the Alito opinion simply noted the parts that they did not join.
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