Deadly Force, Mullenix v. Luna, and the Power of Dissent

In its second opinion of the 2015 Term,Mullenix v. Luna,the Court held a police officer immune from liability for his role in killing a fleeing suspect. This is how Justice Sotomayor’ssolo dissentdescribes the conduct ultimately protected by the Court:

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.

Per Sotomayor, clearly established Fourth Amendment doctrine dictates that "an officer in Mullenix’s position should not have fired the shots." So, she concludes,immunizing the officer’s use of deadly force was dead wrong.

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

The Court has []never 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. . . The 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.

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.

Of course, just because it is reality doesn’t mean that the Court’s currentdeadly force doctrine is well reasoned or just. Indeed, Sotomayor’s dissent fairly characterizesthe Court’s opinion as blessingof a "'shoot first, think later’ approach to policing." While Sotomayor’s dissent appearsin tune in with the times, the per curiam opinion seems utterly tone deafto today’s maelstrom overpolice violence. At the same time, doctrinal reality is doctrinal reality.

So the real question becomes: can this reality change?

To answer this question, aquick review of relevantFourth Amendment history is in order. Consider the followingdoctrinal map:

[For a full-size version of the map, click here.]

As the map shows, deadly force doctrine was not always so bleak. The seminal early case isTennessee v. Garner, which invalidated a law authorizingpolice 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 prohibitedsuchlethal 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."

Critically,Garner‘s doctrinal formulation was contested from the outset. Justice O’Connor,joinedby 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.

Close to twenty years afterGarner, the Court decidedBrosseauv. Haugen. In that case, the Court granted immunity to a police officer who shot a suspect in the back as he attempted to driveaway from a parking lot. Although the opinion was per curiam, it is clear that two of theGarnerdissenters — O’Connor and then-Chief Justice Rehnquist — werepart of the coalition. Justice Stevens, the sole remaining member of theGarner majority then sitting on the Court,dissented. He saw the writing on the wall.After Brosseau, cameScott v. Harris. 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 thesole dissenter.

The last case beforeMullenixisPlumhoff v. Rickcard. 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 andnobody dissented 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). Although the facts of Plumhoffwere 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 ofGarner, which would have better set up her otherwise compelling dissent in Mullenix.

One lesson to be drawn from this narrative is that dissents can shape doctrine over the long run. O’Connor’s dissent inGarnerevidently presagedtheBrosseauper curiam opinion. Cheers toStevens forflying the trueGarnerflag in hisBrosseauandScott dissents and boos to his colleagues — especiallyBreyer and Ginsburg! — forfailing to join him. Yet Stevens’ prescient analysis neednot be forgotten. His dissents offer a potent alternate interpretation ofGarnermore in keeping with that seminal case’s original vision. Praising Sotomayor’sMullenixdissentis all good, but we can help the dissentsurvive and thrive by making explicit itsconnectionto an older anddeeper doctrinal struggle.