{"id":709,"date":"2015-11-12T17:42:33","date_gmt":"2015-11-12T17:42:33","guid":{"rendered":"http:\/\/blogs.ubalt.edu\/cstarger\/?p=709"},"modified":"2022-06-11T20:14:22","modified_gmt":"2022-06-11T20:14:22","slug":"deadly-force-mullenix-v-luna-and-the-power-of-dissent","status":"publish","type":"post","link":"https:\/\/blogs.ubalt.edu\/cstarger\/2015\/11\/12\/deadly-force-mullenix-v-luna-and-the-power-of-dissent\/","title":{"rendered":"Deadly Force, Mullenix v. Luna, and the Power of Dissent"},"content":{"rendered":"

In its second opinion of the 2015 Term,\u00a0Mullenix v. Luna<\/a>,<\/em>\u00a0the Court held a police officer immune from liability for his role in killing a fleeing suspect. This is how Justice Sotomayor’s solo dissent<\/a>\u00a0describes the conduct ultimately protected by the Court:<\/p>\n

Chadrin Mullenix fired six rounds in the dark at a car traveling 85 miles per hour. He did so without any training in that tactic, against the wait order of his superior officer, and less than a second before the car hit spike strips deployed to stop it. Mullenix’s rogue conduct killed the driver, Israel Leija, Jr.<\/em><\/p>\n

Per Sotomayor, clearly established Fourth Amendment doctrine dictates that “an officer in Mullenix’s position should not have fired the shots.” So, she concludes,\u00a0immunizing the officer’s use of deadly force was dead wrong.<\/p>\n

Although Sotomayor’s argument is powerfully stated, it suffers from a fatal flaw. This fatal flaw is perfectly stated in the per curiam opinion:<\/p>\n

The Court has []\u00a0never found the use of deadly force in connection with a dangerous car chase to violate the Fourth Amendment, let alone to be a basis for denying qualified immunity…\u00a0The dissent can cite no case from this Court denying qualified immunity because officers entitled to terminate a high-speed chase selected one dangerous alternative over another.<\/em><\/p>\n

Alas, these words do not lie. The Court’s car chase cases have uniformly sanctioned the use of deadly force. Sotomayor’s dissent fails to adequately deal with this doctrinal reality.<\/p>\n

Of course, just because it is reality doesn’t mean that the Court’s current\u00a0deadly force doctrine is well reasoned or just. Indeed, Sotomayor’s dissent fairly characterizes\u00a0the Court’s opinion as blessing\u00a0of a ” ‘shoot first, think later’ approach to policing.” While Sotomayor’s dissent appears\u00a0in tune in with the times, the per curiam opinion seems utterly tone deaf\u00a0to today’s maelstrom over\u00a0police violence. At the same time, doctrinal reality is doctrinal reality.<\/p>\n

So the real question becomes: can this reality change?<\/p>\n

To answer this question, a\u00a0quick review of relevant\u00a0Fourth Amendment history is in order. Consider the following\u00a0doctrinal map:<\/p>\n

\"Sanctioning_Deadly_Force2_casetext\"<\/a>

Deadly Force Since Tennessee v. Garner<\/p><\/div>\n

(Click on image to open full-sized version with links to underlying opinions).<\/p>\n

As the map shows, deadly force doctrine was not always so bleak. The seminal early case is\u00a0Tennessee v. Garner<\/a><\/em>, which invalidated a law authorizing\u00a0police deadly force exercised when apprehending even non-dangerous fleeing suspects. In a 6-3 opinion written by Justice White, the Court held that the Fourth Amendment prohibited\u00a0such\u00a0lethal force to effect a seizure unless the police had “probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”<\/p>\n

Critically, Garner<\/em>‘s doctrinal formulation was contested from the outset. Justice O’Connor,\u00a0joined<\/a> by Chief Justice Burger and then-Justice Rehnquist, dissented. As the map shows, the views expressed in O’Connor’s dissent effectively came to rule the roost over time.<\/p>\n

Close to twenty years after Garner<\/em>, the Court decided Brosseau\u00a0v. Haugen<\/a><\/em>. In that case, the Court granted immunity to a police officer who shot a suspect in the back as he attempted to drive\u00a0away from a parking lot. Although the opinion was per curiam, it is clear that two of the Garner<\/em> dissenters — O’Connor and then-Chief Justice Rehnquist — were part of the coalition<\/a>. Justice Stevens, the sole remaining member of the Garner<\/em> majority then sitting on the Court, dissented<\/a>. He saw the writing on the wall.\u00a0After Brosseau<\/em>, came Scott v. Harris<\/a><\/em>. This time the Court found that the Fourth Amendment was not violated by police use of a “push bumper” maneuver to apprehend a speeder; the unarmed speeder was left paralyzed by the subsequent crash. Stevens again was the sole dissenter<\/a>.<\/p>\n

The last case before Mullenix<\/em> is Plumhoff v. Rickcard<\/a><\/em>. In that case, the Court exonerated a police officer’s killing of a suspect in a parking lot on both Fourth Amendment and Qualified Immunity grounds. By now, Stevens had left the Court and nobody dissented<\/a> from the majority’s decision. (Justices Breyer and Ginsburg did not join every part of the opinion but did not write separately; Sotomayor was silent). \u00a0Although the facts of Plumhoff<\/em>\u00a0were admittedly grim — the suspect nearly hit a number of cops with his car — it still seems a missed opportunity for Sotomayor. She could have done more to protest the erosion of Garner<\/em>, which would have better set up her otherwise compelling dissent in Mullenix<\/em>.<\/p>\n

One lesson to be drawn from this narrative is that dissents can shape doctrine over the long run. O’Connor’s dissent in Garner<\/em>\u00a0evidently presaged\u00a0the Brosseau<\/em> per curiam opinion. Cheers to\u00a0Stevens for\u00a0flying the true Garner<\/em> flag in his Brosseau<\/em>\u00a0and Scott<\/em> dissents and boos to his colleagues — especially\u00a0Breyer and Ginsburg! — for\u00a0failing to join him. Yet Stevens’ prescient analysis need\u00a0not be forgotten. His dissents offer a potent alternate interpretation of Garner<\/em>\u00a0more in keeping with that seminal case’s original vision. Praising Sotomayor’s Mullenix<\/em>\u00a0dissent is all good<\/a>, but we can help the dissent\u00a0survive and thrive by making explicit its\u00a0connection\u00a0to an older and\u00a0deeper doctrinal struggle.<\/p>\n","protected":false},"excerpt":{"rendered":"

In its second opinion of the 2015 Term,\u00a0Mullenix v. Luna,\u00a0the Court held a police officer immune from liability for his role in killing a fleeing suspect. This is how Justice Sotomayor’s solo dissent\u00a0describes the conduct ultimately protected by the Court: … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":400,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[],"_links":{"self":[{"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/posts\/709"}],"collection":[{"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/users\/400"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/comments?post=709"}],"version-history":[{"count":16,"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/posts\/709\/revisions"}],"predecessor-version":[{"id":850,"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/posts\/709\/revisions\/850"}],"wp:attachment":[{"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/media?parent=709"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/categories?post=709"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.ubalt.edu\/cstarger\/wp-json\/wp\/v2\/tags?post=709"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}