Plumhoff v Rickard.     134 S,Ct. 2012

Near midnight on July 18, 2004, Lieutenant Joseph Forthman of the West Memphis, Arkansas, Police Department pulled over a white Honda Accord because the car had only one operating headlight. Donald Rickard was the driver of the Accord, and Kelly Allen was in the passenger seat. Forthman noticed an indentation, “`roughly the size of a head or a basketball'” in the windshield of the car. He asked Rickard if he had been drinking, and Rickard responded that he had not. Because Rickard failed to produce his driver’s license upon request and appeared nervous, Forthman asked him to step out of the car. Rather than comply with Forthman’s request, Rickard sped away.

Forthman gave chase and was soon joined by five other police cruisers driven.  The officers pursued Rickard east on Interstate 40 toward Memphis, Tennessee. While on I-40, they attempted to stop Rickard using a “rolling roadblock,” but they were unsuccessful. The District Court described the vehicles as “swerving through traffic at high speeds,” and respondent does not dispute that the cars attained speeds over 100 miles per hour. During the chase, Rickard and the officers passed more than two dozen vehicles.

Rickard eventually exited I-40 in Memphis, and shortly afterward he made “a quick right turn,” causing “contact [to] occu[r]” between his car and Evans’ cruiser.  As a result of that contact, Rickard’s car spun out into a parking lot and collided with Plumhoff’s cruiser. Now in danger of being cornered, Rickard put his car into reverse “in an attempt to escape.”  As he did so, Evans and Plumhoff got out of their cruisers and approached Rickard’s car, and Evans, gun in hand, pounded on the passenger-side window. At that point, Rickard’s car “made contact with” yet another police cruiser. Rickard’s tires started spinning, and his car “was rocking back and forth,” indicating that Rickard was using the accelerator even though his bumper was flush against a police cruiser.

At that point, Plumhoff fired three shots into Rickard’s car. Rickard then “reversed in a 180 degree arc” and “maneuvered onto” another street, forcing Ellis to “step to his right to avoid the vehicle.”  As Rickard continued “fleeing down” that street,  fellow officers Gardner and Galtelli fired 12 shots toward Rickard’s car, bringing the total number of shots fired during this incident to 15.

Rickard then lost control of the car and crashed into a building.  Rickard and Allen both died from some combination of gunshot wounds and injuries suffered in the crash that ended the chase.

Rickard’s surviving daughter, filed this action under Rev. Stat. § 1979, 42 U.S.C. § 1983, against the six individual police officers and the mayor and chief of police of West Memphis. She alleged that the officers used excessive force in violation of the Fourth and Fourteenth Amendments.

A claim that law-enforcement officers used excessive force to effect a seizure is governed by the Fourth Amendment’s “reasonableness” standard. See Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). In Graham, we held that determining the objective reasonableness of a particular seizure under the Fourth Amendment “requires a careful balancing of the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the countervailing governmental interests at stake.” 490 U.S., at 396, 109 S.Ct. 1865 . The inquiry requires analyzing the totality of the circumstances.  

We analyze this question from the perspective “of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” We thus “allo[w] for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Id., at 396-397, 109 S.Ct. 1865.

In this case, respondent advances two main Fourth Amendment arguments. First, she contends that the Fourth Amendment did not allow petitioners to use deadly force to terminate the chase. Second, she argues that the “degree of force was excessive,” that is, that even if the officers were permitted to fire their weapons, they went too far when they fired as many rounds as they did. See id., at 36-38, 109 S.Ct. 1865. We address each issue in turn.

In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007),  we considered a claim that a police officer violated the Fourth Amendment when he terminated a high-speed car chase by using a technique that placed a “fleeing motorist at risk of serious injury or death.” 550 U.S., at 386, 127 S.Ct. 1769. The record in that case contained a videotape of the chase, and we found that the events recorded on the tape justified the officer’s conduct.

We wrote as follows: “Although there is no obvious way to quantify the risks on either side, it is clear from the videotape that respondent posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase.” Id., at 383-384, 127 S.Ct. 1769.

We also wrote:

  • “[R]espondent’s vehicle rac[ed] down narrow, two-lane roads in the dead of night at speeds that are shockingly fast. We see it swerve around more than a dozen other cars, cross the double-yellow line, and force cars traveling in both directions to their respective shoulders to avoid being hit. We see it run multiple red lights and travel for considerable periods of time in the occasional center left-turn-only lane, chased by numerous police cars forced to engage in the same hazardous maneuvers just to keep up.” Id., at 379-380, 127 S.Ct. 1769 (footnote omitted).

In light of those facts, “we [thought] it [was] quite clear that [the police officer] did not violate the Fourth Amendment.” Id., at 381, 127 S.Ct. 1769. We held that 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, even when it places the fleeing motorist at risk of serious injury or death.”Id., at 386, 127 S.Ct. 1769.

We see no basis for reaching a different conclusion here.

As we have explained, the chase in this case exceeded 100 miles per hour and lasted over five minutes. During that chase, Rickard passed more than two dozen other vehicles, several of which were forced to alter course. Rickard’s outrageously reckless driving posed a grave public safety risk. And while it is true that Rickard’s car eventually collided with a police car and came temporarily to a near standstill, that did not end the chase. Less than three seconds later, Rickard resumed maneuvering his car. Just before the shots were fired, when the front bumper of his car was flush with that of one of the police cruisers, Rickard was obviously pushing down on the accelerator because the car’s wheels were spinning, and then Rickard threw the car into reverse “in an attempt to escape.”

Thus, the record conclusively disproves respondent’s claim that the chase in the present case was already over when petitioners began shooting. Under the circumstances at the moment when the shots were fired, all that a reasonable police officer could have concluded was that Rickard was intent on resuming his flight and that, if he was allowed to do so, he would once again pose a deadly threat for others on the road. Rickard’s conduct even after the shots were fired — as noted, he managed to drive away despite the efforts of the police to block his path — underscores the point.

In light of the circumstances we have discussed, it is beyond serious dispute that Rickard’s flight posed a grave public safety risk, and here, as in Scott, the police acted reasonably in using deadly force to end that risk.

We now consider respondent’s contention that, even if the use of deadly force was permissible, petitioners acted unreasonably in firing a total of 15 shots. We reject that argument.

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. As petitioners noted below, “if lethal force is justified, officers are taught to keep shooting until the threat is over.” 509 Fed.Appx., at 392.

Here, during the 10-second span when all the shots were fired, Rickard never abandoned his attempt to flee. Indeed, even after all the shots had been fired, he managed to drive away and to continue driving until he crashed. This would be a different case if petitioners had initiated a second round of shots after an initial round had clearly incapacitated Rickard and had ended any threat of continued flight, or if Rickard had clearly given himself up. But that is not what happened.

In arguing that too many shots were fired, respondent relies in part on the presence of Kelly Allen in the front seat of the car, but we do not think that this factor changes the calculus. Our cases make it clear that “Fourth Amendment rights are personal rights which … may not be vicariously asserted.” Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969).  Thus, the question before us is whether petitioners violated Rickard’s Fourth Amendment rights, not Allen’s. If a suit were brought on behalf of Allen under either § 1983 or state tort law, the risk to Allen would be of central concern. But Allen’s presence in the car cannot enhance Rickard’s Fourth Amendment rights. After all, it was Rickard who put Allen in danger by fleeing and refusing to end the chase, and it would be perverse if his disregard for Allen’s safety worked to his benefit.

Under the circumstances present in this case, we hold that the Fourth Amendment did not prohibit petitioners from using the deadly force that they employed to terminate the dangerous car chase that Rickard precipitated.

By:  Chicago Federal Criminal Defense Attorney Michael J. Petro

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