Alito’s Worst Decision?

On May 27, 2014 Justice Samuel Anthony Alito, Jr. wrote the opinion for the Supreme Court in the case of Plumhoff et. al. vs. Rickard. (pdf)  Mr. Rickard was killed, along with a passenger in his car, by gun fire from police pursuing him after a traffic stop.  The decision found that the use of deadly force was justifiable considering the threat to public safety posed by Mr. Rickard’s reckless high speed getaway attempt, Rickard’s 4th Amendment rights were not violated, and “in any event, the officers were entitled to qualified immunity because they did not violate a clearly established law.” [scotusblog

But, there was more.  How about the number of shots fired in the attempt to halt Rickard’s escape?  Were 15 shots unreasonable? The decision thought not:

“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.”

There are some problems here.  First, is the Supreme Court really saying that if an officer fires once in the face of a “severe threat to public safety” that all subsequent shots are justified?   The Court did recognize that if initial volleys had incapacitated Rickard, subsequent shots might not be justified.  However, what of Allen, the passenger in the vehicle?

“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.” 

Yes, it would be perverse if Rickard used Allen as something of a hostage.  Yet there is still the unresolved issue of who created that severe threat to public safety?  The police in hot pursuit or Rickard for behaving like a fool? Thus, our second question.

Secondly, what constitutes a “severe threat to public safety?”  Mr. Rickard was stopped for a traffic violation, in his instance a broken headlight.  The initial impression, given the state of the windshield and the dysfunctional headline, lead the officers to believe the car had recently been involved in an accident; Mr. Rickard’s decision to flee the scene and lead the police on a high speed chase didn’t do anything to dissuade the officers that this was the case.  The officers caught up with Mr. Rickard in a parking lot.  Rickard continued his attempt to flee this scene as well, 12 more shots were fired and both individuals in the car were killed. These facts seem to illustrate a tragic process with several moving parts.

Did the reckless high speed chase, in itself, create a severe threat to public safety?  And, does this, in turn hinge on the type of pursuit policy adopted by the police department or law enforcement agency.  There are two forms of pursuit policy – a restrictive policy limits the crimes for which a pursuit may be initiated, and a discretionary policy gives the officers only basic guidance as to when to initiate, conduct, and terminate a pursuit. [PCM

If the Supreme Court is assuming that a discretionary policy is perfectly acceptable, then what does this mean for law enforcement agencies such as Las Vegas, NV which shifted to a restricted policy in the wake of a series of high speed pursuits that ended badly? [LVSun] In fact, Las Vegas Metro went from almost being a poster child for high speed errors to an exemplary  41% reduction in the initiation of high speed pursuits in the three years ending in 2013.  Indeed, the LVMPD was given national recognition for its achievements in improving safe pursuits in October 2013.

Common sense would appear to support the decision of the Las Vegas police to adopt a restricted pursuit policy which lessens the dangers to the suspect, the public, and the police. However, if there is no legal incentive to adopt such a model, then why would ‘unreconstructed’ police departments do so?  And, this of course leads to the unfortunate third question: Did the police create the “severe threat to public safety” when a pursuit was initiated without determining if the pursued was a known felon, or suspected in a felony, or a reasonable conclusion drawn that the pursued must be apprehended immediately?

Some police departments such as the LVMPD have well defined articulated use of force policies (pdf) not that these policies haven’t generated some controversy. [LVRJ 11/29/11]  Others, like the TMCC report dated April 2011 are more general: “… that officers use only the force that reasonably appears necessary to bring an incident under control, while protecting the lives of the officer and others.”  Even this is amended to include a “reasonable fear of death or serious bodily harm, or to prevent the escape of a fleeing violent felon who the officer believes poses a serious threat of death or serious injury to the officer and others.”  The state of California has 56 pages worth of guidelines for pursuits, crafted in no small amount of detail as of 2006.  The Reno (NV) Police Department summarizes its policy as:

“Officers may pursue a suspect when they reasonably believe the suspect has committed a felony or poses an immediate threat to human life. Unless exigent circumstances exist, officers will normally not pursue a suspect who has committed a misdemeanor crime. Officers must articulate justifiable cause necessitating immediate apprehension of the suspect when pursuing for any offense.”

The Reno policy also incorporates other considerations like traffic conditions, weather, pedestrians in the area, time of day, and the identity of the subject being pursued, among others similar to the California standards.   

If the decision in Plumhoff v. Rickard can be faulted for providing cover for law enforcement officers who may well have contributed to the “severe threat to public safety” in an ill-advised pursuit, and further criticized for justifying all the force necessary until the “threat is over,” then can it also be faulted for allowing police departments to meet the lowest possible standards?

Have Justice Alito and his colleagues sanctified the mediocre or worse, while disparaging the efforts of other jurisdictions to articulate and standardize their use of force and pursuit policies?  If so, then this may well be one of  Justice Alito’s worst decisions. 

[See NYT for more]

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