Trooper Shooting Into Fleeing Car Has Qualified ImmunityBy Kevin Camden
In a US Supreme Court decision handed down in November, Mullinex v. Luna, the Court ruled that a trooper who fired into a car fleeing from other officers has qualified immunity, overruling the Fifth Circuit Court of Appeals in New Orleans.
After attempting to arrest a suspect on an outstanding warrant, a Texas Department of Public Safety sergeant gave chase when the suspect fled, racing down the highway at 110 miles per hour. The sergeant was joined by two other troopers; a third, Mullinex, tried to shoot out the car’s engine block and radiator from a highway overpass, where spike strips and another officer were stationed below. Before attempting his plan, Mullinex radioed his supervisor to ask if it was “worth doing.” The sergeant told Mullinex to stand by to see whether the spike strips worked. It’s unclear whether Mullinex didn’t hear or disregarded that response.
Mullinex fired six shots from his department-issued rifle, missing the engine and radiator but hitting the suspect’s upper body four times. Despite the spike strips having worked, causing the car to roll over twice, the coroner ruled the rifle shots to be the cause of death.
The suspect’s family brought a §1983 action against Mullinex, alleging a Fourth Amendment violation for use of excessive force. Mullinex claimed qualified immunity, but the trial court found there was a material issue of fact as to whether he was “reckless or acted as a reasonable, trained peace officer would have acted in the same or similar circumstances.” The Fifth Circuit affirmed.
In reversing the Fifth Circuit, the Supreme Court first defined “qualified immunity” as a shield for officials from civil liability “so long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” The Court looked at its most recent precedent in the use of deadly force when applied on a fleeing felon, namely Haugen v. Brosseau. In that case, the Court held that the correct question was whether the Fourth Amendment clearly prohibited an officer’s conduct in the situation he confronted: “whether to shoot a disturbed felon, set on avoiding capture through vehicular flight, when persons in the immediate area are at risk from that flight.”
In applying this rationale to Mullinex, the Court set out the facts: By the time Mullinex fired, the suspect had led police on a 25-mile chase at extremely high speeds, was reportedly intoxicated, had twice threated to shoot officers, and was racing toward another officer’s location at the overpass.
The Court cited two prior cases of excessive force alleged in high-speed chases, when it held that because fugitives posed threats to law enforcement or civilians in the area, officers did not violate the Fourth Amendment. The Court clearly accounted for the factors Mullinex had to weigh in deciding his course of action: the potential for the suspect to hit another officer or civilians, or hit the spike strip and possibly injure the officer, and the possibility that the fugitive would make good on his threat to shoot the officers.
In concluding Mullinex had qualified immunity, it’s notable that the Court was not willing to assume there can be only one appropriate use of force. Justice Sonia Sotomayor dissented, saying the shooting was excessive because the spike strips should have been enough. The rest of the Court summarily dismissed her thinking, relying heavily on an amicus brief filed by the National Association of Police Organizations, with its expertise on whether the spike strips had potential failures or dangers of their own to take into account. There is a danger that a car will roll over at high speeds if effective. There is a danger they will not work. There is a danger the offender will try and avoid them, creating other dangers.
The Court ultimately reversed the denial of qualified immunity for two reasons. It did not find that shooting into the fugitive’s car was an excessive use of force in light of the facts presented in this case, and it held there is no clear test for determining excessive force, noting instead that cases must be analyzed with regard to their specific circumstances.
Kevin P. Camden is a licensed attorney in Illinois who has represented law enforcement officers and agencies in discipline cases and litigation since 1998.