Mullenix v. Luna

Cite as: 577 U. S. ____ (2015) 1

Per Curiam

SUPREME COURT OF THE UNITED STATES

CHADRIN LEE MULLENIX v. BEATRICE LUNA,

INDIVIDUALLY AND AS REPRESENTATIVE OF THE

ESTATE OF ISRAEL LEIJA, JR., ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14–1143. Decided November 9, 2015

PER CURIAM.

On the night of March 23, 2010, Sergeant Randy Baker

of the Tulia, Texas Police Department followed Israel

Leija, Jr., to a drive-in restaurant, with a warrant for his

arrest. 773 F. 3d 712, 715–716 (CA5 2014). When Baker

approached Leija’s car and informed him that he was

under arrest, Leija sped off, headed for Interstate 27.

2013 WL 4017124, *1 (ND Tex., Aug. 7, 2013). Baker gave

chase and was quickly joined by Trooper Gabriel Rodri-

guez of the Texas Department of Public Safety (DPS). 773

F. 3d, at 716.

Leija entered the interstate and led the officers on an

18-minute chase at speeds between 85 and 110 miles per

hour. Ibid. Twice during the chase, Leija called the Tulia

Police dispatcher, claiming to have a gun and threatening

to shoot at police officers if they did not abandon their

pursuit. The dispatcher relayed Leija’s threats, together

with a report that Leija might be intoxicated, to all con-

cerned officers.

As Baker and Rodriguez maintained their pursuit, other

law enforcement officers set up tire spikes at three loca-

tions. Officer Troy Ducheneaux of the Canyon Police

Department manned the spike strip at the first location

Leija was expected to reach, beneath the overpass at

Cemetery Road. Ducheneaux and the other officers had

received training on the deployment of spike strips, includ-

ing on how to take a defensive position so as to minimize

2 MULLENIX v. LUNA

Per Curiam

the risk posed by the passing driver. Ibid.

DPS Trooper Chadrin Mullenix also responded. He

drove to the Cemetery Road overpass, initially intending

to set up a spike strip there. Upon learning of the other

spike strip positions, however, Mullenix began to consider

another tactic: shooting at Leija’s car in order to disable it.

2013 WL 4017124, *1. Mullenix had not received training

in this tactic and had not attempted it before, but he

radioed the idea to Rodriguez. Rodriguez responded “10–

4,” gave Mullenix his position, and said that Leija had

slowed to 85 miles per hour. Mullenix then asked the DPS

dispatcher to inform his supervisor, Sergeant Byrd, of his

plan and ask if Byrd thought it was “worth doing.” 773

F. 3d, at 716–717. Before receiving Byrd’s response, Mul-

lenix exited his vehicle and, armed with his service rifle,

took a shooting position on the overpass, 20 feet above I–

27. Respondents allege that from this position, Mullenix

still could hear Byrd’s response to “stand by” and “see if

the spikes work first.” Ibid.*

As Mullenix waited for Leija to arrive, he and another

officer, Randall County Sheriff ’s Deputy Tom Shipman,

discussed whether Mullenix’s plan would work and how

and where to shoot the vehicle to best carry it out. 2013

WL 4017124, *2. Shipman also informed Mullenix that

another officer was located beneath the overpass. 773

F. 3d, at 717.

Approximately three minutes after Mullenix took up his

shooting position, he spotted Leija’s vehicle, with Rodri-

guez in pursuit. As Leija approached the overpass, Mul-

lenix fired six shots. Leija’s car continued forward be-

neath the overpass, where it engaged the spike strip, hit

——————

* Although Mullenix disputes hearing Byrd’s response, we view the

facts in the light most favorable to respondents, who oppose Mullenix’s

motion for summary judgment. See Tolan v. Cotton, 572 U. S. ___, ___

(2014) ( per curiam) (slip op., at 1).

Cite as: 577 U. S. ____ (2015) 3

Per Curiam

the median, and rolled two and a half times. It was later

determined that Leija had been killed by Mullenix’s shots,

four of which struck his upper body. There was no evi-

dence that any of Mullenix’s shots hit the car’s radiator,

hood, or engine block. Id., at 716–717; 2013 WL 4017124,

*2–*3.

Respondents sued Mullenix under Rev. Stat. §1979, 42

U. S. C. §1983, alleging that he had violated the Fourth

Amendment by using excessive force against Leija. Mul-

lenix moved for summary judgment on the ground of

qualified immunity, but the District Court denied his

motion, finding that “[t]here are genuine issues of fact as

to whether Trooper Mullenix acted recklessly, or acted as

a reasonable, trained peace officer would have acted in the

same or similar circumstances.” 2013 WL 4017124, *6.

Mullenix appealed, and the Court of Appeals for the

Fifth Circuit affirmed. 765 F. 3d 531 (2014). The court

agreed with the District Court that the “immediacy of the

risk posed by Leija is a disputed fact that a reasonable

jury could find either in the plaintiffs’ favor or in the

officer’s favor, precluding us from concluding that Mul-

lenix acted objectively reasonably as a matter of law.” Id.,

at 538.

Judge King dissented. She described the “ ‘fact issue’

referenced by the majority” as “simply a restatement of

the objective reasonableness test that applies to Fourth

Amendment excessive force claims,” which, she noted, the

Supreme Court has held “ ‘is a pure question of law.’ ” Id.,

at 544–545 (quoting Scott v. Harris, 550 U. S. 372, 381, n.

8 (2007)). Turning to that legal question, Judge King

concluded that Mullenix’s actions were objectively reason-

able. When Mullenix fired, she emphasized, he knew not

only that Leija had threatened to shoot the officers in-

volved in his pursuit, but also that Leija was seconds away

from encountering such an officer beneath the overpass.

Judge King also dismissed the notion that Mullenix should

4 MULLENIX v. LUNA

Per Curiam

have given the spike strips a chance to work. She ex-

plained that because spike strips are often ineffective, and

because officers operating them are vulnerable to gunfire

from passing cars, Mullenix reasonably feared that the

officers manning them faced a significant risk of harm.

765 F. 3d, at 548–549.

Mullenix sought rehearing en banc before the Fifth

Circuit, but the court denied his petition. Judge Jolly

dissented, joined by six other members of the court. Judge

King, who joined Judge Jolly’s dissent, also filed a sepa-

rate dissent of her own. 777 F. 3d 221 (2014) ( per curiam).

On the same day, however, the two members forming the

original panel’s majority withdrew their previous opinion

and substituted a new one. 773 F. 3d 712. The revised

opinion recognized that objective unreasonableness is a

question of law that can be resolved on summary judg-

ment—as Judge King had explained in her dissent—but

reaffirmed the denial of qualified immunity. Id., at 715,

718. The majority concluded that Mullenix’s actions were

objectively unreasonable because several of the factors

that had justified deadly force in previous cases were

absent here: There were no innocent bystanders, Leija’s

driving was relatively controlled, Mullenix had not first

given the spike strips a chance to work, and Mullenix’s

decision was not a split-second judgment. Id., at 720–724.

The court went on to conclude that Mullenix was not

entitled to qualified immunity because “the law was clearly

established such that a reasonable officer would have

known that the use of deadly force, absent a sufficiently

substantial and immediate threat, violated the Fourth

Amendment.” Id., at 725.

We address only the qualified immunity question, not

whether there was a Fourth Amendment violation in the

first place, and now reverse.

The doctrine of qualified immunity shields officials from

civil liability so long as their conduct “ ‘does not violate

Cite as: 577 U. S. ____ (2015) 5

Per Curiam

clearly established statutory or constitutional rights of

which a reasonable person would have known.’ ” Pearson

v. Callahan, 555 U. S. 223, 231 (2009) (quoting Harlow v.

Fitzgerald, 457 U. S. 800, 818 (1982)). A clearly estab-

lished right is one that is “sufficiently clear that every

reasonable official would have understood that what he is

doing violates that right.” Reichle v. Howards, 566 U. S.

___, ___ (2012) (slip op., at 5) (internal quotation marks

and alteration omitted). “We do not require a case directly

on point, but existing precedent must have placed the

statutory or constitutional question beyond debate.”

Ashcroft v. al-Kidd, 563 U. S. 731, 741 (2011). Put simply,

qualified immunity protects “all but the plainly incompe-

tent or those who knowingly violate the law.” Malley v.

Briggs, 475 U. S. 335, 341 (1986).

“We have repeatedly told courts . . . not to define clearly

established law at a high level of generality.” al-Kidd,

supra, at 742. The dispositive question is “whether the

violative nature of particular conduct is clearly estab-

lished.” Ibid. (emphasis added). This inquiry “ ‘must be

undertaken in light of the specific context of the case, not

as a broad general proposition.’ ” Brosseau v. Haugen, 543

U. S. 194, 198 (2004) (per curiam) (quoting Saucier v.

Katz, 533 U. S. 194, 201 (2001)). Such specificity is espe-

cially important in the Fourth Amendment context, where

the Court has recognized that “[i]t is sometimes difficult

for an officer to determine how the relevant legal doctrine,

here excessive force, will apply to the factual situation the

officer confronts.” 533 U. S., at 205.

In this case, the Fifth Circuit held that Mullenix violated

the clearly established rule that a police officer may not

“ ‘use deadly force against a fleeing felon who does not pose

a sufficient threat of harm to the officer or others.’ ” 773

F. 3d, at 725. Yet this Court has previously considered—

and rejected—almost that exact formulation of the quali-

fied immunity question in the Fourth Amendment context.

6 MULLENIX v. LUNA

Per Curiam

In Brosseau, which also involved the shooting of a suspect

fleeing by car, the Ninth Circuit denied qualified immu-

nity on the ground that the officer had violated the clearly

established rule, set forth in Tennessee v. Garner, 471

U. S. 1 (1985), that “deadly force is only permissible where

the officer has probable cause to believe that the suspect

poses a threat of serious physical harm, either to the

officer or to others.” Haugen v. Brosseau, 339 F. 3d 857,

873 (CA9 2003) (internal quotation marks omitted). This

Court summarily reversed, holding that use of Gar-

ner’s “general” test for excessive force was “mistaken.”

Brosseau, 543 U. S., at 199. The correct inquiry, the Court

explained, was whether it was clearly established that the

Fourth Amendment prohibited the officer’s conduct in the

“ ‘situation [she] confronted’: whether to shoot a disturbed

felon, set on avoiding capture through vehicular flight,

when persons in the immediate area are at risk from that

flight.” Id., at 199–200. The Court considered three court

of appeals cases discussed by the parties, noted that “this

area is one in which the result depends very much on the

facts of each case,” and concluded that the officer was

entitled to qualified immunity because “[n]one of [the

cases] squarely governs the case here.” Id., at 201 (em-

phasis added).

Anderson v. Creighton, 483 U. S. 635 (1987), is also

instructive on the required degree of specificity. There,

the lower court had denied qualified immunity based on

the clearly established “right to be free from warrantless

searches of one’s home unless the searching officers have

probable cause and there are exigent circumstances.” Id.,

at 640. This Court faulted that formulation for failing to

address the actual question at issue: whether “the circum-

stances with which Anderson was confronted . . . consti-

tute[d] probable cause and exigent circumstances.” Id., at

640–641. Without answering that question, the Court

explained, the conclusion that Anderson’s search was

Cite as: 577 U. S. ____ (2015) 7

Per Curiam

objectively unreasonable did not “follow immediately”

from—and thus was not clearly established by—the prin-

ciple that warrantless searches not supported by probable

cause and exigent circumstances violate the Fourth

Amendment. Id., at 641.

In this case, Mullenix confronted a reportedly intoxi-

cated fugitive, set on avoiding capture through high-speed

vehicular flight, who twice during his flight had threat-

ened to shoot police officers, and who was moments away

from encountering an officer at Cemetery Road. The

relevant inquiry is whether existing precedent placed the

conclusion that Mullenix acted unreasonably in these

circumstances “beyond debate.” al-Kidd, supra, at 741.

The general principle that deadly force requires a suffi-

cient threat hardly settles this matter. See Pasco v.

Knoblauch, 566 F. 3d 572, 580 (CA5 2009) (“[I]t would be

unreasonable to expect a police officer to make the numer-

ous legal conclusions necessary to apply Garner to a high-

speed car chase . . .”).

Far from clarifying the issue, excessive force cases in-

volving car chases reveal the hazy legal backdrop against

which Mullenix acted. In Brosseau itself, the Court held

that an officer did not violate clearly established law when

she shot a fleeing suspect out of fear that he endangered

“other officers on foot who [she] believed were in the im-

mediate area,” “the occupied vehicles in [his] path,” and

“any other citizens who might be in the area.” 543 U. S.,

at 197 (first alteration in original; internal quotation

marks omitted; emphasis added). The threat Leija posed

was at least as immediate as that presented by a suspect

who had just begun to drive off and was headed only in the

general direction of officers and bystanders. Id., at 196–

197. By the time Mullenix fired, Leija had led police on a

25-mile chase at extremely high speeds, was reportedly

intoxicated, had twice threatened to shoot officers, and

was racing towards an officer’s location.

8 MULLENIX v. LUNA

Per Curiam

This Court has considered excessive force claims in

connection with high-speed chases on only two occasions

since Brosseau. In Scott v. Harris, 550 U. S. 372, the

Court held that an officer did not violate the Fourth

Amendment by ramming the car of a fugitive whose reck-

less driving “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 384. And in Plumhoff v. Rickard, 572 U. S.

___ (2014), the Court reaffirmed Scott by holding that an

officer acted reasonably when he fatally shot a fugitive

who was “intent on resuming” a chase that “pose[d] a

deadly threat for others on the road.” 572 U. S., at ___

(slip op., at 10). The Court has thus 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. Leija in his flight did not

pass as many cars as the drivers in Scott or Plumhoff;

traffic was light on I–27. At the same time, the fleeing

fugitives in Scott and Plumhoff had not verbally threat-

ened to kill any officers in their path, nor were they about

to come upon such officers. In any event, none of our

precedents “squarely governs” the facts here. Given Lei-

ja’s conduct, we cannot say that only someone “plainly

incompetent” or who “knowingly violate[s] the law” would

have perceived a sufficient threat and acted as Mullenix

did. Malley, 475 U. S., at 341.

The dissent focuses on the availability of spike strips as

an alternative means of terminating the chase. It argues

that even if Leija posed a threat sufficient to justify deadly

force in some circumstances, Mullenix nevertheless con-

travened clearly established law because he did not wait

to see if the spike strips would work before taking action.

Spike strips, however, present dangers of their own, not

only to drivers who encounter them at speeds between 85

and 110 miles per hour, but also to officers manning them.

Cite as: 577 U. S. ____ (2015) 9

Per Curiam

See, e.g., Thompson v. Mercer, 762 F. 3d 433, 440 (CA5

2014); Brief for National Association of Police Organiza-

tions et al. as Amici Curiae 15–16. Nor are spike strips

always successful in ending the chase. See, e.g., Cordova

v. Aragon, 569 F. 3d 1183, 1186 (CA10 2009); Brief for

National Association of Police Organizations et al. as

Amici Curiae 16 (citing examples). 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.

Even so, the dissent argues, there was no governmental

interest that justified acting before Leija’s car hit the

spikes. Mullenix explained, however, that he feared Leija

might attempt to shoot at or run over the officers manning

the spike strips. Mullenix also feared that even if Leija hit

the spike strips, he might still be able to continue driving

in the direction of other officers. The dissent ignores these

interests by suggesting that there was no “possible mar-

ginal gain in shooting at the car over using the spike

strips already in place.” Post, at 4 (opinion of SOTOMAYOR,

J.). In fact, Mullenix hoped his actions would stop the car

in a manner that avoided the risks to other officers and

other drivers that relying on spike strips would entail.

The dissent disputes the merits of the options available to

Mullenix, post, at 3–4, but others with more experience

analyze the issues differently. See, e.g., Brief for National

Association of Police Organizations et al. as Amici Curiae

15–16. Ultimately, whatever can be said of the wisdom of

Mullenix’s choice, this Court’s precedents do not place the

conclusion that he acted unreasonably in these circum-

stances “beyond debate.” al-Kidd, 563 U. S., at 741.

More fundamentally, the dissent repeats the Fifth Cir-

cuit’s error. It defines the qualified immunity inquiry at a

high level of generality—whether any governmental inter-

est justified choosing one tactic over another—and then

fails to consider that question in “the specific context of

10 MULLENIX v. LUNA

Per Curiam

the case.” Brosseau v. Haugen, 543 U. S., at 198 (internal

quotation marks omitted). As in Anderson, the conclusion

that Mullenix’s reasons were insufficient to justify his

actions simply does not “follow immediately” from the

general proposition that force must be justified. 483 U. S.,

at 641.

Cases decided by the lower courts since Brosseau like-

wise have not clearly established that deadly force is

inappropriate in response to conduct like Leija’s. The

Fifth Circuit here principally relied on its own decision in

Lytle v. Bexar County, 560 F. 3d 404 (2009), denying quali-

fied immunity to a police officer who had fired at a fleeing

car and killed one of its passengers. That holding turned

on the court’s assumption, for purposes of summary judg-

ment, that the car was moving away from the officer and

had already traveled some distance at the moment the

officer fired. See id., at 409. The court held that a rea-

sonable jury could conclude that a receding car “did not

pose a sufficient threat of harm such that the use of deadly

force was reasonable.” Id., at 416. But, crucially, the

court also recognized that if the facts were as the officer

alleged, and he fired as the car was coming towards him,

“he would likely be entitled to qualified immunity” based

on the “threat of immediate and severe physical harm.”

Id., at 412. Without implying that Lytle was either correct

or incorrect, it suffices to say that Lytle does not clearly

dictate the conclusion that Mullenix was unjustified in

perceiving grave danger and responding accordingly, given

that Leija was speeding towards a confrontation with

officers he had threatened to kill.

Cases that the Fifth Circuit ignored also suggest that

Mullenix’s assessment of the threat Leija posed was rea-

sonable. In Long v. Slaton, 508 F. 3d 576 (2007), for ex-

ample, the Eleventh Circuit held that a sheriff ’s deputy

did not violate the Fourth Amendment by fatally shooting

a mentally unstable individual who was attempting to flee

Cite as: 577 U. S. ____ (2015) 11

Per Curiam

in the deputy’s car, even though at the time of the shoot-

ing the individual had not yet operated the cruiser dan-

gerously. The court explained that “the law does not

require officers in a tense and dangerous situation to wait

until the moment a suspect uses a deadly weapon to act to

stop the suspect” and concluded that the deputy had rea-

son to believe Long was dangerous based on his unstable

state of mind, theft of the cruiser, and failure to heed the

deputy’s warning to stop. Id., at 581–582. The court also

rejected the notion that the deputy should have first tried

less lethal methods, such as spike strips. “[C]onsidering

the unpredictability of Long’s behavior and his fleeing in a

marked police cruiser,” the court held, “we think the police

need not have taken that chance and hoped for the best.”

Id., at 583 (alteration and internal quotation marks omit-

ted). But see Smith v. Cupp, 430 F. 3d 766, 774–777 (CA6

2005) (denying qualified immunity to an officer who shot

an intoxicated suspect who had stolen the officer’s cruiser

where a reasonable jury could have concluded that the

suspect’s flight did not immediately threaten the officer or

any other bystander).

Other cases cited by the Fifth Circuit and respondents

are simply too factually distinct to speak clearly to the

specific circumstances here. Several involve suspects who

may have done little more than flee at relatively low

speeds. See, e.g., Walker v. Davis, 649 F. 3d 502, 503 (CA6

2011); Kirby v. Duva, 530 F. 3d 475, 479–480 (CA6 2008);

Adams v. Speers, 473 F. 3d 989, 991 (CA9 2007); Vaughan

v. Cox, 343 F. 3d 1323, 1330–1331, and n. 7 (CA11 2003).

These cases shed little light on whether the far greater

danger of a speeding fugitive threatening to kill police

officers waiting in his path could warrant deadly force.

The court below noted that “no weapon was ever seen,”

773 F. 3d, at 723, but surely in these circumstances the

police were justified in taking Leija at his word when he

twice told the dispatcher he had a gun and was prepared

12 MULLENIX v. LUNA

Per Curiam

to use it.

Finally, respondents argue that the danger Leija repre-

sented was less substantial than the threats that courts

have found sufficient to justify deadly force. But the mere

fact that courts have approved deadly force in more ex-

treme circumstances says little, if anything, about whether

such force was reasonable in the circumstances here.

The fact is that when Mullenix fired, he reasonably under-

stood Leija to be a fugitive fleeing arrest, at speeds over

100 miles per hour, who was armed and possibly intoxi-

cated, who had threatened to kill any officer he saw if the

police did not abandon their pursuit, and who was racing

towards Officer Ducheneaux’s position. Even accepting

that these circumstances fall somewhere between the two

sets of cases respondents discuss, qualified immunity

protects actions in the “ ‘hazy border between excessive

and acceptable force.’ ” Brosseau, supra, at 201 (quoting

Saucier, 533 U. S., at 206; some internal quotation marks

omitted).

Because the constitutional rule applied by the Fifth

Circuit was not “ ‘beyond debate,’ ” Stanton v. Sims, 571

U. S. ___, ___ (2013) (per curiam) (slip op., at 8), we grant

Mullenix’s petition for certiorari and reverse the Fifth

Circuit’s determination that Mullenix is not entitled to

qualified immunity.

It is so ordered.

Cite as: 577 U. S. ____ (2015) 1

SCALIA, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

CHADRIN LEE MULLENIX v. BEATRICE LUNA,

INDIVIDUALLY AND AS REPRESENTATIVE OF THE

ESTATE OF ISRAEL LEIJA, JR., ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14–1143. Decided November 9, 2015

JUSTICE SCALIA, concurring in the judgment.

I join the judgment of the Court, but would not describe

what occurred here as the application of deadly force in

effecting an arrest. Our prior cases have reserved that

description to the directing of force sufficient to kill at the

person of the desired arrestee. See, e.g., Plumhoff v. Rick-

ard, 572 U. S. ___ (2014); Brosseau v. Haugen, 543 U. S.

194 (2004) (per curiam); Tennessee v. Garner, 471 U. S. 1

(1985). It does not assist analysis to refer to all use of

force that happens to kill the arrestee as the application of

deadly force. The police might, for example, attempt to

stop a fleeing felon’s car by felling a large tree across the

road; if they drop the tree too late, so that it crushes the

car and its occupant, I would not call that the application

of deadly force. Though it was force sufficient to kill, it

was not applied with the object of harming the body of the

felon.

Thus, in Scott v. Harris, 550 U. S. 372 (2007), we de-

clined to characterize officer Scott’s use of his pursuing

vehicle’s bumper to push the fleeing vehicle off the road as

the application of deadly force. Whether or not it was

that, we said, “all that matters is whether Scott’s actions

were reasonable.” Id., at 383. So also here. But it stacks

the deck against the officer, it seems to me, to describe his

action as the application of deadly force.

It was at least arguable in Scott that pushing a speeding

vehicle off the road is targeting its occupant for injury or

2 MULLENIX v. LUNA

SCALIA, J., concurring in judgment

death. Here, however, it is conceded that Trooper Mul-

lenix did not shoot to wound or kill the fleeing Leija, nor

even to drive Leija’s car off the road, but only to cause the

car to stop by destroying its engine. That was a risky

enterprise, as the outcome demonstrated; but determining

whether it violated the Fourth Amendment requires us to

ask, not whether it was reasonable to kill Leija, but

whether it was reasonable to shoot at the engine in light of

the risk to Leija. It distorts that inquiry, I think, to make

the question whether it was reasonable for Mullenix to

“apply deadly force.”

Cite as: 577 U. S. ____ (2015) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

CHADRIN LEE MULLENIX v. BEATRICE LUNA,

INDIVIDUALLY AND AS REPRESENTATIVE OF THE

ESTATE OF ISRAEL LEIJA, JR., ET AL.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 14–1143. Decided November 9, 2015

JUSTICE SOTOMAYOR, dissenting.

Chadrin Mullenix fired six rounds in the dark at a car

traveling 85 miles per hour. He did so without any train-

ing 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. Because it was clearly estab-

lished under the Fourth Amendment that an officer in

Mullenix’s position should not have fired the shots, I

respectfully dissent from the grant of summary reversal.

I

Resolving all factual disputes in favor of plaintiffs, as

the Court must on a motion for summary judgment, Mul-

lenix knew the following facts before he shot at Leija’s

engine block: Leija had led police officers on an 18-minute

car chase, at speeds ranging from 85 to 110 miles per

hour. 773 F. 3d 712, 716 (CA5 2014). Leija had twice

called the police dispatcher threatening to shoot at officers

if they did not cease the pursuit. Ibid. Police officers were

deploying three sets of spike strips in order to stop Leija’s

flight. Ibid. The officers were trained to stop a car using

spike strips. This training included how to take a defen-

sive position to minimize the risk of danger from the tar-

get car. Ibid. Mullenix knew that spike strips were being

set up directly beneath the overpass where he was sta-

tioned. Id., at 723. There is no evidence below that any of

2 MULLENIX v. LUNA

SOTOMAYOR, J., dissenting

the officers with whom Mullenix was in communication—

including Officer Troy Ducheneaux, whom Mullenix be-

lieved to be below the overpass—had expressed any con-

cern for their safety. Id., at 720.

Mullenix had no training in shooting to disable a mov-

ing vehicle and had never seen the tactic done before. Id.,

at 716. He also lacked permission to take the shots: When

Mullenix relayed his plan to his superior officer, Robert

Byrd, Byrd responded “stand by” and “see if the spikes

work first.” Id., at 716–717. Three minutes after arriving

at the overpass, Mullenix fired six rounds at Leija’s car.

None hit the car’s engine block; at least four struck Leija

in the upper body, killing Leija. Id., at 717.

II

When confronting a claim of qualified immunity, a court

asks two questions. First, the court considers whether the

officer in fact violated a constitutional right. Saucier v.

Katz, 533 U. S. 194, 201 (2001). Second, the court asks

whether the contours of the right were “sufficiently clear

that a reasonable official would [have understood] that

what he is doing violates that right.” Id., at 202 (quoting

Anderson v. Creighton, 483 U. S. 635, 640 (1987)). This

Court has rejected the idea that “an official action is pro-

tected by qualified immunity unless the very action in

question has previously been held unlawful.” Id., at 640.

Instead, the crux of the qualified immunity test is whether

officers have “fair notice” that they are acting unconstitu-

tionally. Hope v. Pelzer, 536 U. S. 730, 739 (2002).

Respondents here allege that Mullenix violated the

Fourth Amendment’s prohibition on unreasonable seizures

by using deadly force to apprehend Leija. This Court’s

precedents clearly establish that the Fourth Amendment

is violated unless the “ ‘governmental interests’ ” in effec-

tuating a particular kind of seizure outweigh the “ ‘nature

and quality of the intrusion on the individual’s Fourth

Cite as: 577 U. S. ____ (2015) 3

SOTOMAYOR, J., dissenting

Amendment interests.’ ” Scott v. Harris, 550 U. S. 372,

383 (2007) (quoting United States v. Place, 462 U. S. 696,

703 (1983)). There must be a “governmental interes[t]”

not only in effectuating a seizure, but also in “how [the

seizure] is carried out.” Tennessee v. Garner, 471 U. S. 1, 8

(1985).

Balancing a particular governmental interest in the use

of deadly force against the intrusion occasioned by the use

of that force is inherently a fact-specific inquiry, not sus-

ceptible to bright lines. But it is clearly established that

the government must have some interest in using deadly

force over other kinds of force.

Here, then, the clearly established legal question—the

question a reasonable officer would have asked—is whether,

under all the circumstances as known to Mullenix, there

was a governmental interest in shooting at the car rather

than waiting for it to run over spike strips.

The majority does not point to any such interest here. It

claims that Mullenix’s goal was not merely to stop the car,

but to stop the car “in a manner that avoided the risks” of

relying on spike strips. Ante, at 9. But there is no evi-

dence in the record that shooting at Leija’s engine block

would stop the car in such a manner.

The majority first suggests that Mullenix did not wait

for the results of the spikes, as his superior advised, be-

cause of his concern for the officers manning the strips.

But Leija was going to come upon those officers whether or

not Mullenix’s shooting tactic was successful: Mullenix

took his shot when Leija was between 25 and 30 yards

away from the spike strip, traveling at 85 miles per hour.

Even if his shots hit Leija’s engine block, the car would not

have stopped instantly. Mullenix would have bought the

officers he was trying to protect—officers who had been

trained to take defensive positions—less than three-

quarters of a second over waiting for the spike strips. And

whatever threat Leija posed after his car was stopped

4 MULLENIX v. LUNA

SOTOMAYOR, J., dissenting

existed whether the car was stopped by a shot to the en-

gine block or by the spike strips.

Nor was there any evidence that shooting at the car was

more reliable than the spike strips. The majority notes

that spike strips are fallible. Ante, at 8–9. But Mullenix

had no information to suggest that shooting to disable a

car had a higher success rate, much less that doing so with

no training and at night was more likely to succeed.

Moreover, not only did officers have training in setting up

the spike strips, but they had also placed two backup

strips further north along the highway in case the first set

failed. A reasonable officer could not have thought that

shooting would stop the car with less danger or greater

certainty than waiting.

The majority cites Long v. Slaton, 508 F. 3d 576 (CA11

2007), for the proposition that Mullenix need not have

“first tried less lethal methods, such as spike strips.”

Ante, at 11. But in that case, there was a clear reason to

prefer deadly force over the alternatives. In Long, an

officer fired to stop a suspect from fleeing in a stolen police

cruiser. 508 F. 3d, at 583. When the officer fired, there

were no alternative means of stopping the car in place.

The Eleventh Circuit held that the governmental interest

against waiting for a future deployment of spike strips

that may never materialize justified the use of deadly

force. Ibid.

In this case, by contrast, neither petitioner nor the

majority can point to any possible marginal gain in shoot-

ing at the car over using the spike strips already in place.

It is clearly established that there must be some govern-

mental interest that necessitates deadly force, even if it is

not always clearly established what level of governmental

interest is sufficient.

Under the circumstances known to him at the time,

Mullenix puts forth no plausible reason to choose shooting

at Leija’s engine block over waiting for the results of the

Cite as: 577 U. S. ____ (2015) 5

SOTOMAYOR, J., dissenting

spike strips. I would thus hold that Mullenix violated

Leija’s clearly established right to be free of intrusion

absent some governmental interest.

III

The majority largely evades this key legal question by

focusing primarily on the governmental interest in whether

the car should be stopped rather than the dispositive ques-

tion of how the car should be stopped. But even assum-

ing that Leija posed a “sufficient,” ante, at 8, or “imme-

diate,” ante, at 7, threat, Mullenix did not face a “choice

between two evils” of shooting at a suspect’s car or

letting him go. Scott, 550 U. S., at 384; see, e.g., Plumhoff

v. Rickard, 572 U. S. ___, ___ (2014) (slip op., at 3, 10);

Brosseau v. Haugen, 543 U. S. 194, 196–197 (2004). In-

stead, Mullenix chose to employ a potentially lethal tactic

(shooting at Leija’s engine block) in addition to a tactic

specifically designed to accomplish the same result (spike

strips).* By granting Mullenix qualified immunity, this

Court goes a step further than our previous cases and does

so without full briefing or argument.

Thus framed, it is apparent that the majority’s exhorta-

tion that the right at stake not be defined at “a high level

of generality,” see ante, at 9, is a red herring. The major-

ity adduces various facts that the Fifth Circuit supposedly

ignored in its qualified immunity analysis, including that

——————

* The majority describes the choice between spike strips and shooting

as the choice between “one dangerous alternative” and another, noting

that spike strips can pose a danger to drivers that encounter them.

Ante, at 8–9. But Mullenix could not have thought that awaiting the

spikes was anywhere near as dangerous as shooting immediately before

Leija hit the spikes. For one thing, Mullenix had no training in shoot-

ing to disable the vehicle and so no idea of the relative danger that

shooting posed to a driver. For another, Leija would be subjected to the

danger posed by the spike strips whether Mullenix shot or not. And, in

fact, that is what happened: Leija’s car hit the spike strips and then

rolled two and a half times.

6 MULLENIX v. LUNA

SOTOMAYOR, J., dissenting

Leija was “a reportedly intoxicated fugitive, set on avoid-

ing capture through high-speed vehicular flight, who twice

during his flight had threatened to shoot police officers,

and who was moments away from encountering an officer

at Cemetery Road.” Ante, at 7. But not one of those facts

goes to the governmental interest in shooting over await-

ing the spike strips. The majority also claims that estab-

lished law does not make clear that “Mullenix’s reasons

were insufficient to justify” his choice of shooting over

following his superior’s orders to wait for the spikes. Ante,

at 9–10. But Mullenix seemed to have no reasons to prefer

shooting to following orders.

Instead of dealing with the question whether Mullenix

could constitutionally fire on Leija’s car rather than wait-

ing for the spike strips, the majority dwells on the immi-

nence of the threat posed by Leija. The majority recharac-

terizes Mullenix’s decision to shoot at Leija’s engine block

as a split-second, heat-of-the-moment choice, made when

the suspect was “moments away.” Ante, at 7. Indeed,

reading the majority opinion, one would scarcely believe

that Mullenix arrived at the overpass several minutes

before he took his shot, or that the rural road where the

car chase occurred had few cars and no bystanders or

businesses. 773 F. 3d, at 717, 720. The majority also

glosses over the facts that Mullenix had time to ask Byrd

for permission to fire upon Leija and that Byrd—

Mullenix’s superior officer—told Mullenix to “stand by.”

Id., at 717. There was no reason to believe that Byrd did

not have all the same information Mullenix did, including

the knowledge that an officer was stationed beneath the

overpass. Even after receiving Byrd’s response, Mullenix

spent minutes in shooting position discussing his next step

with a fellow officer, minutes during which he received no

information that would have made his plan more suitable

or his superior’s orders less so. Ibid.

An appropriate reading of the record on summary judg-

Cite as: 577 U. S. ____ (2015) 7

SOTOMAYOR, J., dissenting

ment would thus render Mullenix’s choice even more

unreasonable. And asking the appropriate legal question

would leave the majority with no choice but to conclude

that Mullenix ignored the longstanding and well-settled

Fourth Amendment rule that there must be a governmen-

tal interest not just in seizing a suspect, but in the level of

force used to effectuate that seizure.

* * *

When Mullenix confronted his superior officer after the

shooting, his first words were, “How’s that for proactive?”

Ibid. (Mullenix was apparently referencing an earlier

counseling session in which Byrd suggested that he was

not enterprising enough. Ibid.) The glib comment does

not impact our legal analysis; an officer’s actual intentions

are irrelevant to the Fourth Amendment’s “objectively

reasonable” inquiry. See Graham v. Connor, 490 U. S.

386, 397 (1989). But the comment seems to me revealing

of the culture this Court’s decision supports when it calls

it reasonable—or even reasonably reasonable—to use

deadly force for no discernible gain and over a supervisor’s

express order to “stand by.” By sanctioning a “shoot first,

think later” approach to policing, the Court renders the

protections of the Fourth Amendment hollow.

For the reasons discussed, I would deny Mullenix’s

petition for a writ of certiorari. I thus respectfully dissent.