Wednesday, December 3, 2014

Revisiting Plumhoff v. Rickard: Police Brutality Goes Unpunished Even When it Goes to Court

We have been discussing police brutality this month.  In order to fully understand the problem of police brutality in America, it is important to understand what our Supreme Court has said about the matter.  After all, they are the ultimate arbiters when it comes to many issues surrounding police brutality, since they are of a constitutional nature.  To that end, its time we examine the United States Supreme Court's (SCOTUS) unanimous decision in Plumhoff v. Rickard.  

Background of  Plumhoff v. Rickard

This case involves the daughter of a man killed by police suing the police who killed her father.  Police shot her father to death when he tried to flee from them in an automobile.  To understand the case, first one has to understand what facts the Court would actually consider.  This case made its way to SCOTUS at the summary judgment stage.  This is the stage of the proceedings before a trial where a judge can determine the case in one sides favor if there are no contested issues of fact that matter to the outcome of the case, so it can be decided just on the law.  The lower courts ruled that this could not happen, and that the case would have to proceed toward trial.  So when SCOTUS considered the case, they were required to look at the facts from the daughter's side and determine whether, if everything she was alleging in the law suit was true, would she be entitled to recover from the police officers.

So what facts were before SCOTUS

On July 18, 2004 Lt. Forthman, a police officer, pulled over a white Honda Accord for having a burnt out headlight.  Donald Rickard was the driver, and Kelly Allen was in the passenger seat.  The cop noticed a dent in the windshield, and asked Rickard if he had been drinking.  Rickard said no.  Because Rickard could not produce his drivers license and he allegedly "appeared nervous" (go through a stack of police reports some time--apparently every driver ever pulled over "appears nervous"--its an unverifiable excuse that the courts let cops get away with) the cop asked him to step out of the car.  Instead, Rickard decided to drive away.

Rather than issue a wanted for Rickard, or seek charges on the fleeing from the misdemeanor stop, the cop decided to turn this minor matter in to a high speed chase.  Five other cop cars got involved. This devolved into a high speed chase, with speeds exceeding 100 mph.

Rickard got off of the interstate in Memphis and made a quick right turn.  As a result, one of the cop cars and Rickard's car hit each other.  As a result of that collision, Rickard's car spun out and collided with a different cop car.  Rickard put his car in reverse.  The cops involved in the accident got out of their cars, one of them drew a gun, and one of them tapped on Rickard's window.  Rickard's car hit another cop car.  Then, one of the cops, Plumhoff, fired three shots into Rickard's car.  Rickard was able to drive away, at which point two other cops started shooting at Rickard's car.  They shot twelve shots.  Rickard lost control of the vehicle and crashed into a building.  Rickard and Allen both died from a combination of gunshot wounds and crash injuries.

After this all happened, Rickard's daughter filed a civil rights lawsuit under Section 1983 against all of the officers involved in her father's death.  She also sued the mayor and the police chief of West Memphis, where the whole incident started.  Her argument was that the cops had used excessive force in violation of the Fourth and Fourteenth Amendments.  The officers claimed they could not be sued because of what's called qualified immunity.

What does "qualified immunity" mean?

Qualified immunity is a shield that protects public officials from being held liable (being successfully sued) for the violation of an individual's federal constitutional rights.  This defense is available where the federal or state employee performs a discretionary function and their actions are not, at the time of the actions, a violation of "clearly established law."  In other words, if there is not clearly established law saying that what the cops did was a violation of the Fourth Amendment, they cannot be sued, even if what they did actually is a violation of the Fourth Amendment.

In Rickard's case, the lower courts said this defense would not fly for the police officers because their conduct violated the Fourth Amendment and was contrary to already clearly established law on the issue.  Appellate courts either agreed or remained silent on this issue.  Then, SCOTUS got involved.

SCOTUS gave the killer cops a pass

SCOTUS first made a determination as to whether the cops who killed Rickard violated his Fourth and Fourteenth Amendment rights.  Rickard's daughter argued that the Fourth Amendment did not allow the cops to use deadly force to terminate the chase, and that the degree of deadly force used was excessive.

The Court had previously held in a case called Scott that a cop's "attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death."  In Rickard's case, the Court basically said that the scenario was the same as in Scott so the officers were allowed to use deadly force.  As for the excessive use of deadly force argument, the Court wrote, "It stands to reason that, if police officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended."

The Court did not address the fact that the entire chase was unnecessary to begin with, and that the officer had other options other than to pursue Rickard.

What this means:  Cops have nearly unlimited power to kill and we have no recourse

The New York Times put it best in an article earlier this year
This is deeply disturbing.  The Supreme Court now has said that whenever there is a high-speed chase that could injure others--and that would seem to be true of virtually all high-speed chases--the police can shoot at the vehicle and keep shooting until the chase ends.  Obvious alternatives could include shooting out the car's tires,, or even taking the license plate number and tracking down the driver later.
In fact, some police departments do just that some of the time.  In my experience working in the St. Louis area, I reviewed the testimony of multiple officers who said that in the case of car thefts and other property crimes they did  not usually engage in high-speed chases in order to protect the public and themselves.

There are alternatives to killing suspects.  In Rickard's case, the officers should have chosen to pursue a less deadly path.  They made the decision not to do so.  And a jury will never get to determine whether their decision was appropriate or not because of qualified immunity.  A man is dead, and no one will be held accountable for his killing.

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