Shoot First, Think Later:- Calls Off

As the number of police killed in the line of duty continues to decline while the number of civilians killed by police rises, the question of whether ordinary Americans have any meaningful civil recourse against officers who violate their rights has taken on pressing importance. On Monday, the Supreme Court effectively answered "no" in an appalling decision that reveals the extent to which the Court has failed to ensure that those charged with enforcing our laws exercise their authority responsibly.

On March 23, 2010, Sergeant Randy Baker of the Tulia, Texas Police Department followed Israel Leija, Jr. to a drive-in restaurant with a warrant for Leija's arrest. When Baker approached Leija's car and informed Leija that he was under arrest, Leija declined to go quietly, speeding off and leading officers on an 18-minute chase at speeds between 85 and 110 miles per hour. During the chase, Leija called the Tulia Police dispatcher, stating that he had a gun and would shoot officers if they continued to pursue him. The dispatcher relayed the threats to the officers pursuing Leija, reporting also that Leija might be intoxicated.

Leija obviously had to be stopped. Police set up tire spikes at three locations Leija was expected to reach. The officers who set up spike strips were trained on how to deploy spikes and on how to take a defensive posture that minimizes the risk of injury to themselves from passing drivers. Texas Department of Public Safety (DPS) Trooper Chadrin Mullenix, who had responded to the call to pursue Leija, initially drove to an overpass with the intention of setting up another spike strip, but then decided upon another tactic: shooting at Leija's engine block to disable it.

Mullenix had no training in shooting at vehicles. While he asked the DPS dispatcher to inform his supervisor of his plan and ask if his supervisor thought it was worth doing, he exited his vehicle with a .223 caliber M-4 rifle and took up a shooting position on the overpass without waiting for a response. (His supervisor subsequently told him to "stand by" and "see if the spikes work first," but whether or not Mullenix heard the instruction was disputed.) When Leija approached the overpass, Mullenix fired six shots. None hit the car's radiator, hood, or engine block. Four hit Leija in the upper body, killing him. In the aftermath of the shooting, Mullenix's first words to his supervisor were, "How's that for proactive?" (This was apparently in reference to the supervisor's prior criticism of Mullenix's for his failure to take initiative.)

Beatrice Luna, as the representative of Leija's estate, and Christina Flores, on behalf of Leija's minor child, sued Mullenix under 42 U.S.C. § 1983, the federal law that authorizes citizens to sue for constitutional violations, alleging that Mullenix violated the Fourth Amendment by using excessive force. While Section 1983 unambiguously states that every person acting under color of law who causes a "deprivation of any rights...secured by the Constitution and laws" "shall be liable to the party injured," the Supreme Court has created an exception, and Mullenix sought to take advantage of it. The Court has held that police officers sued for constitutional violations can raise "qualified immunity" as a defense and thereby escape being held personally liable for damages unless their conduct violates "clearly established" statutory or constitutional rights; moreover, unlike most other non-final judgments, the Court has held that a trial court's denial of qualified immunity is immediately appealable.

The trial court denied Mullenix's attempt to invoke qualified immunity, and the Fifth Circuit Court of Appeals upheld that ruling over a vigorous dissent. The Fifth Circuit majority determined that Mullenix's actions were objectively unreasonable, citing several factors that had justified deadly force in previous cases but were absent in Mullenix's case, including the absence of innocent bystanders, Mullenix's failure to give the spike strips a chance to work, and the fact that Mullenix did not make a split-second judgment but went to the bridge and waited three minutes for Leija's car to approach. The court concluded that "the law was clearly established such that a reasonable officer would have known that the use of deadly force, absent a sufficiently substantial and immediate threat, violated the Fourth Amendment."

In a per curiam decision--meaning short and unsigned--the Supreme Court reversed and held that Mullenix was entitled to qualified immunity. The Court drew upon decisions in which it has emphasized just how "clearly established" the unreasonableness of an officer's actions must be in order to deny qualified immunity. "The relevant inquiry," the Court explained, is "whether existing precedent placed the conclusion that Mullenix acted unreasonably in these circumstances 'beyond debate.'" (Emphasis added.) Highlighting the "hazy legal backdrop against which Mullenix acted" and pointing out that Leija was driving fast, was reportedly intoxicated, and was racing towards officers manning a set of tire spikes, the Court deferred to Mullenix's "reasonable" judgment.

In a passionate and meticulously fact-sensitive dissent, Justice Sonia Sotomayor demonstrated the kind of impartial, truth-seeking judicial engagement that is required if courts are to ensure that the judicially-invented doctrine of qualified immunity does not render civil rights laws an empty promise in cases involving plausible law enforcement abuses. Mullenix's decision, Sotomayor explained, was not supported by any reasonable judgment. There was "no evidence that shooting at the car was more reliable than the spike strips." Mullenix had "no information to suggest that shooting to disable a car had a higher success rate [than shooting at it], much less that doing so with no training and at night was more likely to succeed." Mullenix took his shot when Leija was between 25 and 30 yards away from the spike strip, which means that he would have "bought the officers he was trying to protect--officers who had been trained to take defensive positions--less than three-quarters of a second over waiting for the spike strips." Justice Sotomayor concluded: "Mullenix puts forth no plausible reason to choose shooting at Leija's engine block over waiting for the results of the spike strips."

In the final paragraph of her dissent, Justice Sotomayor noted Mullenix's first words to his superior officer after the shooting: "How's that for proactive?" Sotomayor recognized that the Supreme Court considers an officer's subjective intentions irrelevant to the Fourth Amendment's "objectively reasonable inquiry." But she explained that Mullenix's comment seems "revealing of a culture this Court's decision supports... [b]y sanctioning a 'shoot first, think later,' approach to policing." A doctrine of qualified immunity that regards as "reasonable" anything that is not "beyond debate" nurtures that culture. Decisions like this, which leave victims of police violence without a realistic avenue for the vindication of constitutional rights, represent a profound abdication of judicial responsibility.