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Court weighs immunity for high-speed chase

WASHINGTON — The justices of the U.S. Supreme Court appeared unwilling to lift the shield of qualified immunity from police officers who shot and killed a fleeing suspect and his passenger after a high-speed car chase.

During oral arguments Tuesday in the justices were vocally skeptical of the argument by the Donald Rickard’s family that the officers’ conduct violated clearly established law.

The case stems from a traffic stop of Donald Rickard, who had passenger Kelly Allen in the car with him when police questioned him about a broken headlight and windshield.

Rickard was ordered by out of his vehicle but he fled, leading police on a high-speed chase from Arkansas to Tennessee. At one point Rickard’s car collided head-on with a police vehicle and was soon surrounded by several patrol cars. But he continued his attempts to flee, backing away from the circle of police cars and heading to the road. Multiple officers fired multiple shots at the vehicle, causing Rickard to lose control of the car and crash into a building.

He died of multiple gunshot wounds. Allen died of the combined effects of the crash and a gunshot wound to the head.

Rickard’s family bright a civil rights lawsuit against the officers, who moved for summary judgment on the grounds of qualified immunity.

The district court denied the motion and the officers appealed, arguing that the court failed to consider whether the use of force violated clearly established law at the time of the 2004 incident.

The 6th U.S. Circuit Court of Appeals affirmed the lower court ruling, and the Supreme Court agreed to hear the case.

Established law and O.J.

Michael Mosley, staff attorney for the Arkansas Municipal League in North Little Rock, Ark., argued on the officers’ behalf that the plaintiffs failed to establish the existence of a clearly established rule outlawing the use of firearms to stop a fleeing suspect in a vehicle. The officers, he said, acted in an objectively reasonable way to try to stop someone they believed put officers and the public at risk.

“The petitioners in the this case were not given fair warning that this type of conduct was prohibited,” Mosley said, pointing out that neither Supreme Court nor 6th Circuit case law clearly prohibited the use of such force under the circumstances. “A reasonable officer would have concluded [Rickard] was a threat.”

Chief Justice John G. Roberts Jr. asked Mosley to cite a situation in which the use of such force would violate clearly established law.

“Perhaps the way the white Ford Bronco fled in the early ’90s that everyone saw on TV,” Mosley said, referring to the slow-speed police chase involving O.J. Simpson in California.

The current case was much easier, he said, because the events were captured on the officers’ dashboard cameras. “The video speaks for itself [and] shows that this chase was dangerous.”

Justice Anthony M. Kennedy asked what effect the fact that there was a passenger in the car should have on the analysis.

“The passenger didn’t make Mr. Rickard any less dangerous,” Mosley replied.

“But it makes the police reaction more dangerous,” Kennedy noted.

Justice Antonin Scalia sided with Mosley.

“I could see how the passenger could complain, but I can’t see how the fleeing felon who put the passenger in danger can say, ‘You shouldn’t have shot because you hurt my passenger,’” he said.

John F. Bash, assistant to the U.S. solicitor general arguing as amicus curiae in support of the officers, said that the use of deadly force “might have been wrong as a matter of the Fourth Amendment, but it was not clearly established.”

“Is the use of deadly force always permitted in a high-speed chase?” Justice Sonia Sotomayor asked.

“If the circumstances of the case show that the suspect had no means of escape … and there’s no argument that the officers were in danger, or maybe the vehicle is disabled, then no,” Bash replied. “In this case it’s very clear on the video that he was aiming to get back on the road.”

Reasonable minds

Gary K. Smith, an attorney with Apperson Crump PLC in Memphis, Tenn., argued on the Rickard family’s behalf that the police had Rickard in a “controlled environment” once his car was surrounded and they could have used nonlethal means to stop him.

The justices seemed far from convinced.

“The car is still trying to escape!” said Scalia. “The car is not stopped [with] the driver with his hands up.”

Scalia said that the fatal flaw in Smith’s argument could be found in his own brief.

“I was surprised to read what you said in your brief: ‘At a minimum, reasonable minds could differ on the issue of the Petitioners’ objective reasonableness.’ Isn’t that enough to decide this case?” he asked.

“That’s addressing the constitutional issue, not the clearly established issue,” Smith said.

“It’s addressing a state of facts, that reasonable minds could differ,” Scalia replied. “Do you want to take that back… I think you ought to take it back.”

Kennedy agreed.

“You have the burden to show that this was a clearly established standard, and you say that at a minimum, reasonable minds could differ on the issue of reasonableness,” he said.

Breyer said that a finding that the police could have used other means, such as blocking the car’s path with a police cruiser or shooting out the tires, isn’t enough to win.

“I saw the film. I saw your point. You have a point,” Breyer said. “But what I can’t quite see is how it was a clearly established one.”

The case is Plumhoff v. Rickard, No. 12-1117. A decision is expected later this term.