In Kenny Rogers’s classic song The Gambler, the titular character says, “You got to know when you hold ‘em, know when to fold ‘em/Know when you walk away, know when to run.” Apparently, the Supreme Court hasn’t heard that one.
In a recent unanimous decision, the Supreme Court held that police officers who killed two people by firing into a fleeing car to end a pursuit did not violate the Fourth Amendment. Taken at face value, that holding is not a tremendous surprise; in the 2007 case Scott v. Harris, the Court held that police could use deadly force—in that case, ramming a police cruiser into a fleeing car—to “terminate a dangerous high-speed car chase that threaten[ed] the lives of innocent bystanders.” But taken in context, last Tuesday’s ruling reinforces the dangerously myopic approach that the Court has adopted to review police uses of force.
The ruling was the culmination of almost ten years of legal wrangling. It began on a midsummer night in 2004, when a police officer in the city of West Memphis, Ark.—a 26,000-person suburb a few miles west of Memphis, Tenn.—saw a car driving with a single headlight, a misdemeanor in Arkansas. When he walked up to the car, the officer saw an “indention” in the windshield and beer in the car. The passenger, Kelly Allen, explained that the windshield had been damaged when the car hit a curb. The officer spent a few minutes questioning the driver, Donald Rickard, who did not provide a driver’s license. The officer asked Rickard to step out of the car. Rickard refused and drove off.
If the courts based their constitutional analysis solely on the events I’ve just described, it would be ludicrous to conclude that deadly force was justified. Initiating a high-speed pursuit and opening fire on a driver (and passenger!) over an equipment violation and a possible DUI? That can’t be right. But the courts don’t stop there.
Rickard fled east on I-40 toward Memphis. The pursuit itself was, by all accounts, a dangerous one. While on the interstate, Rickard fled from police at over 100 mph, swerving through traffic and veering his car toward the police cruisers in apparent attempts to ram their cars. Once he reached Memphis, Rickard’s car exited the interstate, struck one of the police vehicles that had joined the chase, spun, and was partially boxed in by cruisers. When Rickard tried to push his car through the impromptu barricade, one officer fired three shots into his car. Rickard backed away from the blocking cruisers and began to flee again, forcing an officer to step out of the way. Twelve more shots were fired. Of the fifteen bullets fired, twelve hit Rickard. One hit Allen. Rickard’s car crashed into a building. Rickard had played for high-stakes and lost. Both he and Allen were killed.
Rickard’s and Allen’s next of kin sued under 42 U.S.C. § 1983, which authorizes lawsuits against government officials who violate someone’s constitutional rights. The police officers invoked a “qualified immunity” defense, which protects government officials from suit unless the facts of the case, as alleged by the plaintiff, show that the officials violated “clearly established” constitutional rights. After reviewing the dash-camera recordings of the pursuit, both the trial court and the appellate court held that the plaintiff had made a plausible argument that the officers violated Rickard’s and Allen’s right to be free from unreasonable seizures by shooting into Rickard’s vehicle—especially while Allen was an innocent passenger.
A unanimous Supreme Court disagreed. For the justices, the dangerous flight and renewed attempt to escape justified the use of deadly force against Rickard. (Allen’s claim, which was consolidated with Rickard’s in the lower courts, was not part of the Supreme Court case.) While it is encouraging to see the nine justices avoid the polarization that has so often plagued the Court, it is disappointing that they continue to entrench a precedent that endangers police officers, bystanders, and suspects.
The Supreme Court has held that the Fourth Amendment permits officers to use “objectively reasonable” force. To determine whether force was objectively reasonable, courts review the situation, as perceived by the officers, as it existed at the time force was used. What police did leading up to the use of force, the tactical choices that they made which may have contributed to the situation, are essentially irrelevant. That’s a mistake.
By focusing on the moment when force was used, the Court have created a doctrine that encourages “full frontal assault” policing, where officers can meet a situation head-on, escalating the use of force until the suspect complies or is subdued. The Supreme Court’s approach to the constitutional regulation of police force does not incorporate the concept of the tactical withdrawal. Perhaps this shouldn’t be surprising. As I’ve written elsewhere, the justices are far removed from the real world of policing. (In one of the more bizarre exchanges during oral argument in Plumhoff v. Rickard, for example, Justice Scalia relied on “movies about bank robberies” for the assertion that police officers shoot into moving cars “all the time.”). The Court’s assumptions and assertions about the policing are often inaccurate.
Unfortunately, those assumptions and assertions are the foundation of constitutional law, and police departments adopt the constitutional standard into their operating policies. The policies that govern vehicle pursuits are a good example. About half of all departments surveyed in a 2008 report on vehicle pursuits by the International Association of Chiefs of Police permit officers to pursue for any offense, including non-criminal traffic violations. The vast majority of departments allow vehicle pursuits for all criminal offenses, including misdemeanors (like Donald Rickard’s missing headlight) and non-violent felonies. In fact, police initiate more than 75% of all vehicles pursuits because of traffic offenses, suspected stolen vehicles, or suspected DUIs.
And why not? Some would argue that it would create a perverse incentive for people to flee if they knew the cops wouldn’t chase them. Others might assume that people must have a reason for fleeing, one that is far more serious than wanting to avoid a traffic ticket. After all, multiple serial killers, including Joel Rifkin and Ted Bundy, fled after police attempted to stop them for routine traffic violations. So why shouldn’t officers pursue whenever someone flees from them?
The simple answer is that permitting unchecked escalation unnecessarily endangers officers, bystanders, and suspects. Traffic crashes during vehicle pursuits remain a significant cause of police fatalities, responsible for more officer deaths in the past twenty years than stabbings and assaults combined, according to data from the Officer Down Memorial Page. A full 30% of all vehicle pursuits result in fatalities, injuries, or property damage, according to empirical studies collected in a 2008 report on police pursuits by the International Association of Chiefs of Police. There is no evidence to suggest that more people would try to flee if their local department adopted a “no pursuit” policy, and it seems unlikely. The department where I spent almost five years as an officer was among the small percentage that permits vehicle pursuits only for violent felonies, yet fleeing vehicles were relatively rare. And in those few cases where a vehicle did flee from a traffic stop, officers were often able to identify the driver for later apprehension.
The tactical withdrawal concept is a familiar one to police officers. It was recently employed on the national stage in Nevada, where federal officers with the Bureau of Land Management backed off rather than exacerbate a confrontation with armed supporters of Cliven Bundy. In the relative calm that followed, local officers and federal agents are working to identify individuals who aimed weapons at federal officials. By withdrawing, rather than escalating, the BLM agents avoided unnecessary risk without sacrificing law enforcement objectives.
To protect officers and civilians alike, courts should avoid encouraging police to engage in gratuitous “full frontal assault” tactics. Similarly, law enforcement agencies should adopt policies that do not needlessly endanger officers and civilians when safer and equally effective alternatives are available.
Seth Stoughton is a law professor at the University of South Carolina. He served as a police officer and investigator for more than seven years and recently spent two years teaching at Harvard Law School as a Climenko Fellow and Lecturer on Law. Follow him on Twitter @PoliceLawProf.
(Photo: Flickr/O l i v i e r)