Plumhoff v. Rickard: The Use of Deadly Force in High-Speed Pursuits and Qualified Immunity

IACP Legal Officers Section s many officers and police executives know from experience, high-speed pursuits all too often end with tragic consequences. Police officers must balance the goals of law enforcement with the public’s safety (and their own) in such situations, which requires officers to make split-second decisions affecting the safety of citizens in harm’s way, the safety and well-being of the pursuing officers, and the safety of the fleeing suspect who is risking many more lives than his or her own.The case of Plumhoff v. Rickard, decided unanimously by the U.S. Supreme Court on May 27, 2014, involves the use of deadly force against a suspect who led police officers on a dangerous chase reaching speeds of over 100 miles per hour and who continued to try to escape even after the police had him cornered.1The court was asked to decide whether police officers, in order to stop a fleeing driver from putting further individuals at risk, were entitled to qualified immunity for their actions in applying deadly force. In determining whether qualified immunity was appropriate, the court looked at whether the officers infringed upon the Fourth Amendment rights of the fleeing driver, and, if they had, whether those rights were clearly established either constitutionally or statutorily. On July 18, 2004, a patrol officer with the West Memphis, Arkansas, Police Department pulled over a vehicle for having only one operational headlight. As the officer approached the vehicle, he noticed an indentation in the windshield, “roughly the size of a head or a basketball,” and glass shavings on the dashboard, indicating that the windshield had been broken recently; he also observed beer in the car.2 The officer approached and asked the driver, Donald Rickard, if he had been drinking. After denying that he had been drinking, Rickard then was asked to produce his license. Because Rickard became nervous and failed to provide his identification, the officer asked the driver to step out of the vehicle.3 Rather than comply with the request, Rickard sped away, leading the officer and others who had been called for backup, on a high-speed pursuit. The officer was joined by five other police cruisers, which pursued Rickard east on I-40. At one point, the officers attempted to stop Rickard using a “rolling roadblock,” but they were unsuccessful. After passing more than two dozen vehicles and weaving through traffic at a high rate of speed (exceeding 100 miles per hour), Rickard exited the highway and, after making contact with an officer’s vehicle, spun out into a parking lot where his vehicle collided with another officer’s vehicle. Officers quickly reacted in an effort to corner the driver, who was attempting to escape. Two officers exited their vehicles, and one, with his gun in his hand, pounded on Rickard’s passenger-side window. Rickard made contact with yet another police vehicle, and he rocked his car back and forth, with tires spinning, indicating that he was hitting the accelerator while his bumper was flush against a police cruiser. One officer fired three shots into Rickard’s vehicle, after which, Rickard reversed in a 180-degree arc and fled onto a different street, narrowly missing another officer. Officers then fired 12 additional rounds into Rickard’s vehicle, after which the driver swerved off the road and crashed into a nearby building. Rickard and his passenger both died from a combination of gunshot wounds and injuries sustained in the crash that ended the chase.4 Rickard’s daughter filed the underlying action under 42 U.S.C. § 1983, alleging that the officers used excessive force in violation of the Fourth Amendment.5 The officers moved for summary judgment, asserting “qualified immunity” from suit. Generally, qualified immunity protects government officials from civil suits filed against them in execution of their duties. Individual lawsuits are permitted to proceed, however, if the official is deemed to have violated the rights of a plaintiff and if those rights were clearly established at the time the official’s conduct occurred.6 Qualified immunity is not a defense to liability; rather, it prevents an official from being subject to any lawsuit at all.7 The district court rejected the qualified immunity defense and denied the officers’ motion for summary judgment, holding that “the facts here do not support a finding that a reasonable officer would have considered the fleeing suspects a clear risk to others.”8 The officers appealed, but the Sixth Circuit affirmed the lower court’s decision. An appeal was taken to the U.S. Supreme Court, which agreed to hear the case. The officers argued that they did not violate Rickard’s Fourth Amendment rights and that their conduct did not violate any Fourth Amendment rule that was clearly established at the time of the events in question. Excessive force, which is used to effectuate a seizure, if deemed unreasonable, is considered to be a violation of the Fourth Amendment. In determining whether the use of force is appropriate, courts look to balance the particular intrusion of rights against the governmental interest being advanced.9 If the intrusion upon a person’s rights is deemed greater than the governmental interest, the use of force will be considered unreasonable. Likewise, if the governmental interest is so substantial that it compels such an intrusion of rights, it will be deemed reasonable. In such use-of-force cases, the standard for reasonableness is based upon what a reasonable officer on the scene would do under the same circumstances.10 This reasonableness standard acknowledges that an officer often must act on limited knowledge in emergencies or urgent situations that do not permit lengthy deliberation. In this case, the court utilized this analysis in assessing the specific facts at hand to determine whether Rickard’s Fourth Amendment rights were violated as a result of the use of excessive force. Having concluded that the use of deadly force was severely intrusive, the court then examined the governmental interest involved. In particular, the governmental interest here was deemed to encompass more than simply a law enforcement purpose, as it directly pertained to the safety of the officers involved in the high-speed pursuit, as well as pedestrians and drivers who were within harm’s way. In determining the strength of the governmental interest, the court looked to the facts of the case—the excessively high speed of the fleeing vehicle, the number of vehicles that were passed, the likelihood that the driver would continue to engage in speeding (if not stopped)—in addition to the fact that the driver was attempting to escape when the first shots were fired by police. After review of all the facts, the court concluded that when officers attempt to terminate a high-speed chase that threatens the lives of those involved in the pursuit, as well as innocent bystanders, police officers do not violate the fleeing individual’s Fourth Amendment rights, even if their use of force puts the fleeing suspect at risk of significant injury or death.11 In doing so, the court reinforced its holding in Scott v. Harris, which addressed a similar set of facts involving the use of deadly force in a high-speed pursuit endangering innocent lives.12 Regarding the number of rounds fired at Rickard’s vehicle, the court recognized that when authorized to use lethal force, officers are instructed to keep shooting until the threat is neutralized.13 As such, the court determined that the number of shots fired in this situation was reasonable. Moreover, it also noted that even after all the shots had been fired, Rickard still managed to drive away and continued driving until he crashed.14 The respondent argued that the presence of a passenger in the front seat of the car should factor into the analysis as to whether the number of shots fired was reasonable. However, the court determined that the Fourth Amendment rights of the passenger cannot be “vicariously asserted,” and the passenger’s presence in the vehicle cannot enhance Rickard’s Fourth Amendment rights.15 In so ruling, the court noted that it was Rickard who placed his passenger’s life in danger, and he could not benefit from his disregard for her safety. The court next addressed the question: Even if the officers did violate the fleeing driver’s rights, were those rights clearly established? As mentioned above, officers can be sued in their individual capacities only if they violate a person’s rights and those rights were clearly established at that time.16 This standard suggests that the nature of a right must be sufficiently definite that any reasonable officer, taken from the viewpoint of the defendant, would have understood that he or she was violating it. Generally, this requires either a controlling precedent or a series of cases persuasive enough to suggest that a right had been infringed.17 This goes to the idea that an officer infringing upon a right should know that he or she is doing so, and that prior cases or statute have put him or her on sufficient notice. The court in this case, however, found no controlling authority issued prior to this incidence that would suggest lethal force was a violation of rights in this particular situation. As such, the court held that even if the officers had violated Rickard’s rights, it was not clearly established, and, thus, did not prevent qualified immunity.18 This holding corrected the Sixth Circuit’s conclusions in balancing the factors used in determining whether the Fourth Amendment is violated when police officers utilize deadly force in ending a dangerous high-speed chase in which innocent lives hang in the balance, and whether, even if a violation has occurred, the officers are immune from suit under qualified immunity. An officer must exercise his best, split-second judgment as to whether lethal force is necessary to prevent a suspect from engaging in a life-endangering chase. Provided those decisions are objectively reasonable, they are shielded from lawsuits under qualified immunity. It is also important, however, to recognize that the facts of this case led to the ruling by the U.S. Supreme Court. In this instance, the court recognized not only the danger that Rickard posed, but also the potential for future danger if he were to continue fleeing. As such, the ruling in this case is fact specific, and the facts involved in other pursuits may not justify the use of lethal force to end the pursuit.

Officer Safety Corner: Prevention, Compassion, and Survival: Managing the Health of First Responders

Rob Hilvers, MD, Emergency Responders Health Center, Boise, Idaho A seemingly healthy 45-year-old police officer on a routine patrol shift receives an emergency 3 a.m. dispatch call. Almost immediately, the physiologic “fight or flight” response ensues; the officer experiences escalated blood pressure and heart rate, which is further compounded as he engages in intense exertion at the scene. Will this officer return to his family at the end of his shift, or will he be among a number of first responders who suffer a fatal heart attack before underlying cardiac disease is ever detected? hat if the police officer in the above scenario, upon being hired into the force, had access to a comprehensive annual wellness program focused on prevention and early detection strategies? Would specialized care have mitigated occupational stressors, lowering the risk of cardiac episodes and increasing the likelihood of a safe return home? In 2007, Stefanos Kales published his landmark study in The New England Journal of Medicine, which demonstrates a significantly higher risk of on-duty cardiac death among police officers and firefighters—22 percent and 44 percent, respectively—compared to the general population (15 percent).1 While Kales’ findings raised awareness of the increased health risks experienced by first responders, they also raised additional questions. For instance, are higher cardiac death rates due to an increased predisposition for coronary disease among police officers and firefighters, or are they the result of the unique stressors experienced by first responders during their shifts in the line of duty? While the prevalence of coronary artery disease (CAD) and the risk of cardiac death among active-duty firefighters has been well documented, less attention has been given to the corresponding risk among police officers.2 The Emergency Responders Health Center (ERHC) in Boise, Idaho, was established in 2004 (three years before the publication of Kales’ study) to manage the specific medical needs of police, fire, and emergency medical services (EMS) responders with the simple mission of “Prevention, Compassion and Survival.” Founded in response to specific needs cited by the Boise Fire Department dive team, ERHC has evolved to offer highly specialized, proactive care designed to address the elevated health and injury risks experienced by all first responders. The center’s primary areas of focus include cardiovascular disease, sports medicine, cancer screening, and behavioral health. ERHC offers comprehensive annual exams, preventative guidance, continuity care, and worker’s compensation care for approximately 15 Idaho police, fire, and EMS agencies. Services are not only adapted to each respective profession and its unique associated risks, but also are customized further to each individual patient. In response to heightened concerns surrounding heart attacks in the line of duty, one of the pillars of ERHC outreach is cardiovascular screening, awareness, and education. Based on their elevated risk to experience a cardiac arrest, police officers undergo advanced heart screenings designed exclusively for first responders and not yet available to the general population. During an annual exam, mainstream patients are likely to undergo minimal screening to include a blood pressure check, blood lipid panel analysis, fasting glucose, and family history assessment. At most, patients identified with elevated risk will undergo a resting EKG test. Conversely, emergency responders seen at ERHC undergo aggressive cardiac surveillance to include standard assessments paired with cardiac stress testing (age-stratified), abdominal circumference measurements, and comprehensive baseline questionnaires.3 Health screenings are further adapted to the unique occupational exposures of different first responder professions. The ERHC’s specialized annual exams are used to generate individual cardio-risk assessments, which are graphed into “heart scores” using a proprietary Fire and Police Metabolic Syndrome Score. Each officer’s score includes seven risk traits known to increase coronary heart disease: five metabolic syndrome traits (abdominal circumference, blood pressure, fasting glucose, triglycerides, and HDL cholesterol); aerobics capacity (VO2 max); and tobacco use. Each of the seven health indicators is depicted in corresponding zones to provide a readily understandable, visual representation of the officer’s current health status: green (optimal), yellow (concerning), and red (high-risk). Patients’ health indicator scores from the prior two years are plotted for comparison to demonstrate whether or not they are making the necessary adjustments in their fitness, nutrition, and lifestyle choices. Additionally, comparing cores provides a base for personalized health education. Each officer’s composite score is also compared with the aggregate scores of his or her peers (with individual confidentiality strictly maintained). This trending and comparative data has often proven the greatest motivator for behavioral change among patients by providing both a visual reminder and a concrete target. In addition to undergoing the thorough risk assessment described, a number of ERHC patients are also eligible to participate in cutting-edge arterial scans hosted by the Saint Alphonsus Research Institute in Boise. Because a heart attack can be the first—and final—signal of underlying heart disease in as many as one-third of cardiac arrest fatalities, cardiologists are seeking better tools to predict, detect, and reverse heart conditions at the earliest possible stage.4 The role of “traditional” risk factors (e.g., hypertension, cholesterol, family history, tobacco) as a primary cause of heart attacks is well understood; however, these indicators alone do not explain the increased propensity for CAD-related death among on-duty police officers. Non-traditional risk factors, including inflammation-boosting chronic stress; issues related to shift work (e.g., endocrine dysfunction, circadian rhythm sleep disorders); and the combination of extreme exertion, hyperthermia, and inhalational exposures of toxic fumes and particles must also be considered. In 2013, the author was invited to collaborate with Steven Writer, MD; Pennie Seibert, PhD; and the Saint Alphonsus Regional Medical Center on an ongoing study to determine (a) if CT scans to detect arterial calcium plaque could serve as effective predictors of CAD and heart attack in first responders; (b) whether this plaque burden could be reversed through nutrition, fitness, and lifestyle changes; and (c) if first responders’ increased awareness of their personal risk would increase their adherence to healthy choices, leading to improved health status.5 Following eventual completion of the study, the team hopes to address all three primary study questions while measuring the prevalence and severity of CAD among police officers as an under-recognized, high-risk population.6 The ERHC has worked to continually refine its service delivery over the past 10 years and currently is working to further enhance the care of first responders by integrating a clinic dietitian, sports physical therapist, and health coach, as well as working to build a fitness testing and injury prevention program. The health center’s success can be replicated in other communities committed to giving back to their police officers and other first responders. With an emphasis on preventative medicine and advanced screenings based on specific occupational risk, the ERHC approach has not only served first responder patients well; it is highly consistent with the evolution of health care toward the specialized management of populations and the avoidance of hospitalizations and emergency room (ER) visits in the first place. In time, the methodology refined through the ERHC and similar clinics is likely to be highly applicable to the mainstream population. By taking bold steps to improve their own wellness, police officers and other first responders will be modeling healthy choices—protecting their citizens in yet another way. ♦

Policing in Local Law Enforcement: A Commitment to Getting Out-of-the-Car

By Steve Dye, Assistant Chief of Police, Garland, Texas, Police Department olice technology must serve the community and advance the mission of community policing, not merely make internal processes more efficient. Community policing is most effective and most sustainable when meaningful partnerships develop between police departments and the community. The development of partnerships and collaborative efforts are largely dependent on officers and administrators who connect with residents through personal interaction. By stopping the car and getting out and speaking with people, officers can connect with the public, identify problems more quickly, and forge stronger partnerships. In spite of the growing list of duties of patrol officers, the surge of technological advancements in law enforcement, and the arrival of a new generation of technologically proficient officers, it is imperative that personal connections between officers and the people they serve remain at the forefront of departmental expectations, training efforts, and policies. Cars Reshape Patrols and Priorities In the early 1800s, policing experienced a shift from the omnipresent centralized systems to the formation of London's Metropolitan Police Force, widely considered the first modern police department. The decentralized force delivered services by focusing on specific problems in specific geographical areas. Sir Robert Peel’s main principle—“The police are the public and the public are the police”—highlighted the importance of connecting with the people served. American policing followed this English model and the early foot patrols relied heavily on interaction with citizens and familiarity with the patrol area. But after the automobile was introduced into policing, departments enlarged geographical areas, turned their attention to reducing response times, and generally adopted a more reactive and enforcement-driven approach. The civil unrest of the 1960s and 1970s demonstrated that although policing efficiency may have increased, an important connection between many officers and the communities they served had been lost. Emergence of Community Policing By the 1980s, dissatisfaction with the effects of this diminishing interpersonal contact between the police and the public led to the birth of community policing and a renewed focus on community interaction and partnerships. The realization started to take hold that policing could not survive on mere efficiency of operations, and a return to connecting with the community, at all levels, was necessary for effective crime prevention, problem identification, and collaborative, innovative problem solving. Initially, the moniker community policing was misconstrued as “soft policing” by some officers and agencies who believed that responsibly aggressive enforcement could not be a part of community policing. However, most departments now understand that the best practices in policing must be community based and that community policing is at its best when it is the philosophy of an agency and not merely a set of programs. Furthermore, community policing is a comprehensive approach that incorporates problem identification and mutual problem solving with the use of real-time crime data and appropriate proactive enforcement strategies. The commitment to community policing must start with the head of the agency and be engrained in the mind-set of officers throughout the department. By creating community partnerships that result in collaboration, departments have been able to construct effective preventive measures and comprehensive tactics to lower crime rates and make neighborhoods safer. One of the primary components of both community policing and crime reduction is the personal connection between officers and residents, business owners, civic groups, and community visitors, to name a few. These relationships are often initiated through officers’ observations, which is why it is so critical that officers are familiar with their beats and constantly scan their work environments for anomalies or variances. Ongoing interaction then becomes crucial in strengthening these ties with the citizenry. Community Policing Challenges The patrol officer’s job is much more complex and challenging than ever before. Society is demanding, more than ever, that police officers be immediate problem solvers. Public expectations have continued to push police officers’ roles beyond crime prevention, response, enforcement, and problem solving and into such areas as mental health care, assumption of parental duties, and monitoring adjudicated offenders. Local law enforcement has been intricately involved in homeland security issues, which has resulted in an increased emphasis on critical infrastructure security. Finally, local law enforcement agencies have recently taken on additional responsibilities regarding immigration management and enforcement. These supplemental duties often fall to local agencies when no one else is available or able to accomplish the mission. It is imperative that department leaders address these current challenges while implementing, developing, and reinforcing clear departmental expectations and policies committed to a community policing philosophy through partnerships and collaboration with the public. Historically, one of the major obstacles in establishing lasting community partnerships has been overcoming the perception that the police alone are responsible for the implementation of community programs and entirely accountable for the results. Department administrators must continually work to instill the mind-set among their officers that police forces cannot achieve success without encouraging the community to be an active participant in prevention, problem identification, problem solving, and evaluations of effectiveness. What Can Police Do to Foster Connection and Collaboration? At times, reaching the departmental goal of full acceptance of a community policing approach involves changing a police culture based on traditional enforcement methods. But what does that require? For starters, chiefs must encourage external involvement and the creation of active and meaningful partnerships that allow for substantive community engagement. These joint efforts should be educational in the sense that both the police and the public understand that each group has certain roles and responsibilities and that safe neighborhoods cannot thrive without active participation from both community stakeholders and police employees. The community and the police agencies must share accountability for results, and the community must contribute to innovative community policing tactics. Police departments and community members must jointly evaluate the effectiveness of community policing efforts, reexamine approaches when necessary, and share in successes when positive results are achieved. Traditional organizational structures need to be reviewed and changed as necessary so that departmental processes improve communication between the public and the department. Performance evaluations must be tailored toward community policing practices and involve the measurement of outcomes as opposed to outputs, including some form of community input to fully gauge officer-community involvement. A failure to fully commit to collaboration and partnerships can result in ineffective problem solving, a lack of community support, and minimal involvement with the community. Conversely, proactively managing and addressing community policing challenges by allowing and encouraging officers to get out into the neighborhoods will culminate in an increased level of trust and a more focused philosophy that retains relevancy to current community issues. Over Reliance on Technology Can Keep Officers in Their Cars New police technology, much of it installed in patrol cars and much of it useful, has added to the complexity of a patrol officer’s job and created a new challenge for administrators who embrace the community policing mission. Whereas the inside of a police car previously contained a radio and maybe a high-tech office. Many patrol officers receive their calls through in-car computers and enter their reports electronically while monitoring cell phones, speed enforcement technology, and automated license plate readers. No longer is the task of a patrol officer as simple as responding to calls over the radio, completing simple handwritten reports, and looking out the window for suspicious activity or circumstances. Technological proficiency is now an expectation in law enforcement just as much as physical fitness and sound decision-making skills. Technology overall has given officers new tools for accomplishing community policing objectives, but it has not come without a certain degree of consternation for some veteran officers. Many of these officers did not grow up around an immense amount of technology and worked in law enforcement before law enforcement embraced computers. This lack of familiarity means that they sometime spend too much time focused on the technology while performing police operations. Many officers still working the streets today were trained at a time when most of their daily activity was generated through personal observations and contacts and knowing every detail of their assigned areas of the community. By contrast, many younger officers grew up making technology a part of their education and their hobbies. They are proficient computer users, but they are vulnerable to becoming driven by the receipt of electronic information instead of generating activity through observations and community interaction. And a reliance on technology has, at times, lessened the development of people skills for some younger officers. Regardless of an officer’s familiarity with technology or his or her level of expertise, it is clear that technology consumes a great deal of officers’ attention as they work the streets each day. This technological time consumption is important to monitor as it may have a tendency to take away from proactive community policing activities in the form of personal contacts and observations. Administrators Must Watch Out for Technology That Isolates Officers There is no doubt that technological advancements have aided responsiveness in policing and allowed personnel to address problems and trends more quickly and efficiently. At the same time, police administrators must carefully scrutinize each new technology to ensure that it increases efficiency in terms of serving the community, creating a safer environment, and accomplishing community policing goals. Upon reviewing any new technology, police leaders should ask themselves whether it will actually help officers do their job or only expedite the administrative processes. While making the internal processes more efficient, it must also enable the officers to use their time effectively contacting the public. Technology should not move officers away from the interpersonal contact with the community that is vital to developing collaborative partnerships and solving neighborhood problems. Departments need to train officers to use technology as a tool and not to rely on it to the point that they lose focus on getting out of their patrol cars and interacting with the community. Technology has demonstrated that it can enhance community policing efforts through timely electronic notifications regarding crime trends, alerts, and police-community meetings and events. Online offense reporting can free up more discretionary time that can be used for face-to-face community interaction and attacking the root causes of crime and disorder, while electronic interaction with the public can expedite measures to prevent offenses from occurring. But departmental leaders must be mindful not to allow technology and technology-savvy young officers to remove the interpersonal communication aspect from police work that is so vital to community policing. Departmental expectations, policies, and training programs must be designed and monitored to ensure that technology does not lead to any of the same isolation problems with the public that were experienced with the introduction of the automobile into policing. Departmental missions and the training of officers must continue to focus on partnerships and the use of technology to supplement these human interfaces and not become a substitute for getting out of the car. A reliance on technology can perhaps lead to complacency, reduce familiarity with surroundings, and limit opportunities to talk with residents. The input of useful information starts with human interactions, and a balance must exist between the use of technology and the retention of people skills. Training programs must continue to emphasize the importance of proactive field work and the delivery of effective community policing. An emphasis must be placed on preventing officers from becoming accustomed to “watching the box” and being driven primarily by information received on their mobile data computers. Retaining Community Focus The culmination of additional responsibilities for police officers, misconceptions of community policing, a newer generation of officer that is more technology based, and an increased emphasis on in-car technology in policing can easily contribute to a decrease in time spent outside the patrol car and interacting with the community. As a result, police administrators must remain attentive to any factor that is keeping officers from getting out of the patrol car and speaking with people. A continuous review of departmental practices and priorities must occur in order to keep everyone focused on community interaction. Although community partnerships and collaborations are alive and well in many police departments and law enforcement initiatives, a continued emphasis must be placed on constant community contact at the street level. If a police culture of minimized citizen interaction is developing, then departments must reiterate the importance of continuing to train officers, in both the academy and the field, to engage in effective community policing through personal observations and contacts while employing technology to supplement these endeavors. Police administrators should take note as they pass a squad car on the street and see how often an officer is able to make eye contact with them as opposed to being focused on some piece of technology or talking on the cell phone. Police leaders should carefully review technology to ensure that only the technology that facilitates a patrol officer’s core tasks of community policing are installed in squad cars—as opposed to technology that results only in benefiting administrative processes. Officers must be continually encouraged to interact with the community, and their tasks and processes must be structured to achieve this objective. Performance evaluations and departmental expectations must align with the principles of community policing and effectiveness measured through outcomes of innovative problem solving and collaboration rather than quantitative outputs. As Sir Robert said years ago, “The police are the public and the public are the police,” and it will always be so.