The U.S. Supreme Court heard oral argument on Tuesday in a case testing the reach of qualified immunity, a legal doctrine designed to shield government officials from civil lawsuits "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." By the time the proceedings came to a close, it looked as if a majority of the justices were prepared to vote in favor of the West Memphis, Arkansas, police officers whose use of deadly force lay at the heart of the case.
At issue in Plumhoff v. Rickard was a 2004 high-speed car chase that started with a routine traffic stop and ended with the police firing 15 rounds into the fleeing vehicle, killing both the driver, Donald Rickard, and his passenger, Kelly Allen, both unarmed. In 2012 the U.S. Court of Appeals for the 6th Circuit ruled against the police, declaring that because it "cannot conclude that the officers' conduct was reasonable as a matter of law," qualified immunity must be denied to the them. A majority of the Supreme Court now appears poised to call that verdict into question.
The fleeing driver "has already gone 100 miles an hour," observed Justice Sonia Sotomayor, and then he tried to escape again. "Why would a reasonable officer not be suspicious that more reckless driving is going to occur?"
Justice Antonin Scalia expressed a similar view. Even assuming the most sympathetic set of facts in favor of Rickard, Scalia maintained, "we are still left with a very dangerous man careening down the road, who is surrounded by police cars and still tries to get away to continue his careening."
Gary K. Smith, the Memphis lawyer representing Rickard's family, conceded that "Mr. Rickard's conduct was unreasonable and he has culpability," but argued that the "threshold issue is should [the police] have used deadly force in that circumstance." Smith stressed that the presence of a passenger "should have been a factor in the reasonable officer's judgment about whether or not to initiate deadly force."
But that line of argument was promptly challenged by Justice Ruth Bader Ginsburg. "What do you say clearly establishes that?" she responded. Is there any case that says the police should not use deadly force "when there is a passenger?" Smith admitted he could point to no such case in support of his position.
Smith also failed to gain traction for his theory that the police should have employed less-than-deadly force to stop the chase. "You can disable the car with the gun," he said. "You can shoot the tires."
That's a "very good question, why didn't they shoot the tires out?" observed Justice Stephen Breyer. But the answer, Breyer continued, is "I don't know," which means you cannot say "it was clearly established that they had to shoot the tires out." In other words, because there was no case on the books requiring such tactics in lieu of deadly force, the officers were under no obligation to do so.
Such sharp questioning for the Rickard family attorney came as little surprise. When the Supreme Court last confronted the use of deadly force by the police to end a high-speed car chase, the justices voted eight-to-one in favor of the officer who rammed his cruiser into the fleeing vehicle, causing an accident that left the suspect paralyzed. "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment," declared the majority opinion in Scott v. Harris (2007), "even when it places the fleeing motorist at risk of serious injury or death."
Judging by yesterday's oral argument, the spirit of that past ruling, though not the same legal principle underlining it, will likely guide the outcome of the present case.
A ruling in Plumhoff v. Rickard is expected by June.