Opposition Brief — Mullenix v. Luna, 136 S. Ct. 305 (2015) (No. 14-1143)

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- Supreme Court. US

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JUN - 3 2015

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SUPREME COURT IS.

No. 14-1143

Supreme Court of the United States

CHADRIN LEE MULLENIX,

IN HIS INDIVIDUAL CAPACITY,

Petitioner,

BEATRICE LUNA, INDIVIDUALLY AND AS REPRESENTATIVE

OF THE ESTATE OF ISRAEL LEIJA, JR.; CHRISTINA MARIE

FLORES, AS NEXT FRIEND OF J.L. AND J.L., MINOR

CHILDREN,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF IN OPPOSITION

K. Paul Holloway Robert S. Hogan

LAW OFFICE OF PAUL Counsel of Record

HOLLOWAY HOGAN LAW FIRM, P.C.

207 E. 6th Street 1801 13th Street

Plainview, TX 79072 Lubbock, TX 79401

(806) 729-1209 (806) 771-7900

rob@hoganlaw.com

QUESTIONS PRESENTED

(1) Did the Fifth Circuit correctly conclude that

there were triable issues of fact precluding summary

judgment as to whether an officer in petitioner's

position could reasonably have believed that the

driver posed a threat justifying the use of deadly

force?

(2) Did the Fifth Circuit correctly hold that

triable issues of fact also precluded qualified

immunity at this stage?

TABLE OF CONTENTS

QUESTIONS PRESENTED ......................cccccesecseeeeeeess i

TABLE OF AUTHORITIES. ...............c..ccccccccssocssccseeees til

STATEMENT OF THE CASE .................ccccccccceeeeeeeees 1

Be ie I weicticceccitiiietentcicsssencccstasaes l

SSSI SR eT eo 6

REASONS FOR DENYING THE WRIT .................... 8

I. The Fifth Circuit’s Decision Is Consistent

With This Court’s Precedents................0000...:000008- 8

A. The Fifth Circuit Correctly Held On The

Current Record That Petitioner’s Use Of

Deadly Force Violated The Fourth

B. The Fifth Circuit’s Refusal To Order

Summary Judgment On _ Qualified

Immunity Grounds Is Consistent With

This Court’s Precedent .....................::cseseeeees 13

Il. The Fifth Circuit’s Decision Does Not Conflict

With The Law In Any Other Court Of

I iia acide nasil saalechbasininahinaiennedhdtigty 18

A. Fourth Amendment Violation ...................... 18

B. Denial Of Qualified Immunity..................... 22

Ill. This Case Is A Poor Vehicle For Providing

Guidance On The Use Of Deadly Force

I. ccrrsincitnatidbunswasninmungubeniniesans 23

cache tcsienessenteritciininansesacoeinecsiniipmaieianmceinnniadien 26

TABLE OF AUTHORITIES

Page(s)

Cases:

Adams v. Speers,

473 F.3d 989 (9th Cir. 2007) ...............ccccccceeeeeeeee 17

Anderson v. Creighton,

8 __, EEETES SRE e ern o d 13

Brosseau v. Haugen,

543 U.S. 194 (2004) (per curiam)...... 14, 15, 16, 23

Cass v. City of Dayton,

770 F.3d 368 (Gth Cir. 2014) .............000...000..000000 20

Cole v. Bone,

993 F.2d 1328 (8th Cir. 1993) ...............0.c ccc eeeeee 21

Cordova v. Aragon,

569 F.3d 1183 (10th Cir. 2009)............... 17, 22, 23

Cowan v. Breen,

SER FBG TES (BS Clr. BOGB)....0..0.0000scccsecsesec0s000...- 18

Fenwick v. Pudimott,

vy ) # 8 fi Too | ) eee 22

Gonzalez v. City of Anaheim,

747 F.3d 789 (9th Cir.) (en banc), cert.

denied sub nom. Wyatt v. F.E.V., 135 S. Ct.

aes aneualcaniilatienbics 18

Graham v. Connor,

BS IID scevcsacscwnaccsnunseccsascnceiecsese 23, 24

Hope v. Pelzer,

i a sarissiceninianinuiinininnnietiane 14, 15

Kirby v. Duva,

530 F.3d 475 (6th Cir. 2008) ......................c00cceee 17

Loch v. City of Litchfield,

689 F.3d 961 (8th Cir. 2012) ....... cece 21

Long v. Slaton,

508 F.3d 576 (11th Cir. 2007)......0.00000. 18, 19

Lytle v. Bexar Cty.,

560 F.3d 404 (5th Cir. 2009), cert. denied,

gtk Bg ne 14, 16, 17

McGrath v. Tavares,

TET F.BE BO (CUat Cie. BOVS)....0.cccccccccceccsscesceccsccces 21

Meadours v. Ermel,

463 F.3d 417 (Geis Cir. 9007) ........ccccesccscocscevececees 17

O’Bert v. Vargo,

S31 F’.3e BO (Ba Cir. BOOB)......cccccecccceccececcscscccscees 17

Plumhoff v. Rickard,

oF Re | ere ES passim

Quiles v. City of Tampa Police Dept.,

596 Fed. Appx. 816 (11th Cir. 2015)...........0....... 19

Retz v. Seaton,

741 F.3d 913 (8th Cir. 2014) ...................cccccccecees 13

Scott v. Hz rris,

OD Ge Pe ED icdiccidicciccocrcnnncaue passim

Smith v. City of Hemet,

394 F.3d 689 (9th Cir. 2005) ooo... cece 13

Smith v. Cupp,

430 F.3d 766 (6th Cir. 2005) 00.0.0... ccccceeeeeeeees 20

Tennessee v. Garner,

7 hi! G1 —-_ Ss tt passim

Thompson v. Mercer,

762 F.3d 433 (5th Cir. 2014).......000000000000.... 9, 10

United States v. Lanier,

a eninneuain 15

Vaughan v. Cox,

343 F.3d 1323 (11th Cir. 2003)......... 17, 19, 20, 23

Virginia v. Harris,

EER 16

Walker v. Davis,

649 F.3d 502 (6th Cir. 2011)..................0.cc000c0e00. 20

Warden, Md. Penitentiary v. Hayden,

a seesonnne 24

Waterman v. Batton,

393 F.3d 471 (4th Cir. 2005)... eee 18

Constitutional Authority:

MIL 1 <<<, ccsssescesndsvesestevevecoovernees passim

Rules and hegulations:

EEE 19

Other Authorities:

Apuzzo, Matt, Police Rethink Long Tradition on

Using Force, N.Y. Times, May 5, 2015, at Al.... 25

Baltimore Cty. Gov't, Tire Deflation Device

ED se cincecnbsctciireuscnedesesoocecoes 2

Boston Police Dep’t, Rules and Procedures: Rule

a cestesnnionnenne 2

Denver Police Dep’t, Operations Manual 204-9

EN 2

N.Y. State Police, Annual Report (2007).................... 2

Rickert, Chris, How Do Police Road Spikes Work?

Wis. State J. (Mar. 17, 2010) ...................0....... eee 2

Seattle Police Dep’t, Manual (Jan. 1, 2015)............... 2

Shallwani, Pervaiz et al., Police Move to Revamp

Tactics, Wall St. J., Dec. 5, 2014, at Al ...0.0....... 25

Smith, Mitch & Matt Apuzzo, Police in Cleveland

Accept Tough Standards on Force, N.Y. Times,

I eg SIN CIRTRD cricnicietisnincebimiiinsenantiaiegsenins 25

STATEMENT OF THE CASE

A. Factual Background

On March 23, 2010, Texas Department of Public

Safety Trooper Chadrin Lee Mullenix was called in

by his supervisor, Sergeant Robert Byrd, for a

performance review. CA5 Record On Appeal (“ROA”)

730, 978. Byrd felt that Mullenix was failing to meet

expectations and instructed him to be more

“proactive” about making traffic stops. Pet. App. 6a;

ROA 978-79.

Later that night, a sergeant with the Tulia Police

Department saw Israel Leija, Jr. at a Sonic Drive-In

and attempted to arrest him on a motion to revoke

misdemeanor probation. Pet. App. 2a. The sergeant

approached Leija, who was idling in his vehicle with

the window open, and informed him that he was

under arrest. ROA 558. Leija asked if he could first

take his car home. Jd. The sergeant said no but told

him that his father could come pick up the car so that

it would not be impounded. Jd. Leija then “started

backing out” around the sergeant’s vehicle and drove

toward Interstate 27. Id. The sergeant followed

Leija and advised dispatch of the pursuit. Jd. 559.

Once on the highway, another officer, Corporal

Gabriel Rodriguez, became the primary officer

following Leija. Pet. App. 2a; see ROA 798. Dispatch

relayed that Leija had called and claimed that he

would shoot at officers if they did not abandon the

chase. Pet. App. 3a.

In response, officers from multiple agencies

decided to set up spike systems at three locations on

I-27. Pet. App. 3a. Law enforcement agencies across

the country routinely use spike systems to disable

vehicles during high-speed chases.’ A spike system is

a long strip of hollow needles that puncture and

gradually deflate the tires of any car that drives over

them. Chris Rickert, How Do Police Road Spikes

Work?, Wis. State J. (Mar. 17, 2010, 2:00 PM).? To

set up spikes, an officer pulls the strip across the

roadway and then takes cover. Jd. From cover, the

officer pulls on a cord to raise the spikes into position,

and then — once the fleeing motorist has driven over

the spikes — pulls again to yank the spikes out of the

way of other traffic. Jd. The officers involved in this

case had been trained on spikes and had learned how

to take protective positions after deployment. Pet.

App. 3a; see also ROA 739-40. They decided to set up

three sets of spikes along a ten-mile stretch of I-27.

See ROA 833-34. The first set would be deployed

underneath the overpass at Cemetery Road. See Pet.

App. 3a; see also ROA 737.

' See, e.g., N.Y. State Police, Annual Report 40 (2007),

available at http://troopers.ny.gov/introduction/Annual_Reports

/AnnualReport2007.pdf; Boston Police Dep't, Rules and

Procedures: Rule 301 §7.6.10 (2013), available at

http//bpdnews.com/rules-and-procedures; Seattle Police Dep't,

Manual § 13.031 (Jan. 1, 2015), available at http://www.seattle

.gov/police-manualtitle-13---vehicle-operations/1303 1---vehicle

-eludingpursuits; Denver Police Dep’t, Operations Manual 204-

9 (Apr. 30, 2015), available at http//www.denvergov.org/Portals

/720/documents/OperationsManual/204.pdf; Baltimore Cty.

Gov't, Tire Deflation Device Training (Feb. 26, 2015),

http://www.baltimorecountymd.gov/Agencies/police/training

section/stopstickstraining. html.

. http://host.madison.com/news/local/footnote-how-do-

police-road-spikes-work/article_8d768c50-3 149-1 1df-a7b6-

00 1cc4c002e0. html.

Meanwhile, Mullenix, who was working traffic

enforcement thirty-two miles away, heard about the

pursuit over his radio. ROA 734-35. He decided to

join the effort. Id. 735.

Instead of deferring to the plan to use spikes,

Mullenix radioed that he “might go to the bridge at

Cemetery Road with a rifle and see what kind of shot

fhe] get[s].” ROA 871 (08.Radio.RSCO1). Mullenix

said he wanted to shoot at the car’s engine. Pet. 6.

Yet he had no experience shooting at a moving

vehicle or training in stopping a car with gunfire.

Pet. App. 4a. His sole experience with shooting

moving objects had been firing at clay pigeons with a

shotgun. Id.

Arriving at the overpass, Mullenix asked over his

radio whether attempting to shoot the car with his

rifle was “worth doing.” Pet. 6. Rodriguez then

advised that Leija had slowed to 85 miles per hour.

Id. Mullenix responded by asking dispatch to contact

Sergeant Byrd “on the traffic [they] just heard and

ask what he advises.” ROA 869 at 9:55 (“Mullenix

Dash Cam.”). Without waiting for a response,

Mullenix left his car. Pet. 6.

Forty seconds after Mullenix asked for Byrd’s

advice, dispatch conveyed Byrd’s order to “stand by”

and “wait and see if the spikes work.” Mullenix Dash

Cam. at 9:55-10:35. As the record stands now, there

is a factual dispute about whether Mullenix heard

the order. Pet. 6. Mullenix claims that he left the

car immediately after asking his supervisor’s advice,

and that he never turned on his car’s loudspeakers to

hear the answer. See id. 6 n.2. But viewing the

evidence in the light most favorable to respondents

(as is necessary in the current procedural posture),

Mullenix heard the command - either from the radio

in his car through his open trunk or from the radio of

nearby officers — and then chose to disregard his

sergeant’s order. Pet. App. 5a, 28a-29a.

Mullenix waited on the bridge as three minutes

passed. Pet. App. 4a. During that time, he observed

no other cars on the interstate, and, indeed,

understood this rural portion of I-27 to be “very, very

lightly traveled.” ROA 721. Nor did Mullenix see

any pedestrians, businesses, or residences along the

highway. Pet. App. 16a; see also ROA 719-21.

While waiting, Mullenix also had a “casual

conversation” with a sheriff's deputy on the overpass.

Pet. App. 5a. Mullenix asked, “What do you think,

one shot right down on it?” Mullenix Dash Cam. at

11:06. The deputy replied, “You know we’re going to

have spikes ready.” Jd. at 11:09. By that time,

Sergeant Troy Ducheneaux had set up the spikes

below the overpass and had taken cover behind one of

the bridge’s pillars. ROA 740. Miullenix and the

deputy discussed Ducheneaux’s presence only in

regard to whether Mullenix himself “would hit

(Ducheneaux]; he did not indicate that he perceived a

threat to Ducheneaux from Leija.” Pet. App. 19a.

As Leija’s car came into view, Mullenix saw the

same thing that the other officers had been

observing: Leija was driving straight down the

highway. See ROA 867 (Rodriguez’s Dash Camera).

Leija drove without indicating that he was aware of

Ducheneaux’s presence or the spikes that lay ahead.

See id. at 15:30-16:00. It is uncontested that Leija

posed no threat to Mullenix. See ROA 745.

As Leija approached the overpass, but before he

reached the spikes, Mullenix rapidly fired six rounds

down into Leija’s car. Pet. App. 5a. “The evidence

indicates that at least four of Mullenix’s six shots

struck Leija’s upper body.” Jd. 6a. There is “no

evidence” that Mullenix hit the vehicle’s engine block.

Id. Leija then lost control of the car, and it flipped

numerous times before coming to a halt. Mullenix

proclaimed, “That ought to do it.” Mullenix Dash

Cam. at 12:00.

Leija died from his bullet wounds. Officers did

not find a weapon in his car. Meanwhile, referencing

his earlier performance review, Mullenix quipped to

Sergeant Byrd, “How’s that for proactive?” Pet. App.

5a-6a.

A lieutenant with the DPS Office of the Inspector

General (OIG) investigated the shooting. After

several months, the OIG issued a report finding that

in light of “the amount of time” Mullenix had to

assess the situation, he acted “without due regard for

the safety of [Ducheneaux] or Leija.”. ROA 865-66.

The OIG concluded, therefore, that Mullenix’s use of

deadly force was “reckless” and “Not Justified.” Id. at

866.°

3 In his deposition, the lieutenant who authored the report

tried to back away from some of his earlier conclusions. ROA

942-45. Petitioner also has objected to the admissibility of the

OIG report, claiming that it “was based on inadequate

information, is not reliable, is not relevant, was not properly

authenticated, and lacks foundation.” Jd. 904. The district

court has not ruled on this scattershot objection, and the Fifth

Circuit saw no need to consider the report, Pet. App. 24a n.3.

But because summary judgment could not be granted against

respondents without considering the report or declaring it

inadmissible, respondents reference it in this brief.

B. Procedural History

1. Respondents Beatrice Luna, as_ the

representative of Leija’s estate, and Christina Flores,

acting on behalf of Leija’s seven- and nine-year-old

children, brought excessive force claims against

petitioner under 42 U.S.C. § 1983. See ROA 23-36.‘

Following discovery, petitioner moved for summary

judgment, cleiming qualified immunity. Id. 456.

The district court concluded that genuine issues

of material fact precluded summary judgment. Pet.

App. 37a. In particular, the court noted that further

litigation was needed to determine whether, at the

time of the shooting, Mullenix reasonably believed

that Leija’s actions presented an immediate threat to

either officers or the public. Id.

2. The Fifth Circuit affirmed. Following this

Court’s lead in Scott v. Harris, 550 U.S. 372 (2007),

the Fifth Circuit independently reviewed the video

from the pursuit. Pet. App. 14a. The court of appeals

concluded the footage comported with respondents’

account of the chase. Id.

Viewing the totality of the evidence in the light

most favorable to respondents, the Fifth Circuit

concluded that none of the risk factors in Scott were

present. Pet. App. 13a-l4a. In particular, the court

of appeals noted that Leija’s driving had not posed a

serious risk to any other drivers and that petitioner

did not know where Ducheneaux was or indicate he

* Respondents also brought federal and state claims

against other defendants. ROA 23-36. These claims have al!

been withdrawn or dismissed. See id. 249, 451, 455, 982.

believed Ducheneaux faced any risk. Jd. 18a-19a.

Nor did Leija’s claim about having a weapon pose a

“sufficiently imminent” threat “at the moment of the

shooting.” See id. 18a. The court therefore held that

the facts as thus far developed “do not establish that

[petitioner] perceived an immediate threat at the

time of the shooting, sufficient to justify the use of

deadly force.” Id. 19a-20a.

In light of the long-standing prohibition against

using deadly force when suspects do not pose an

imminent threat to others, the Fifth Circuit further

concluded that petitioner was not entitled to

summary judgment on qualified immunity grounds.

Pet. App. 21la-24a.

Judge King dissented. She acknowledged that it

was a “close case” whether Mullenix “violated clearly

established Fourth Amendment law” and that

holding he did could be seen as “a fair, responsible

decision.” Pet. App. 92a. But she concluded that

Mullenix’s actions were not objectively unreasonable.

Id. 79a.

The Fifth Circuit denied Mullenix’s petition for

rehearing and rehearing en banc. Pet. App. 40a. In

the process, the panel substituted its original opinion

with one clarifying the standard of review. Id. 2a.

Judges Jolly and King authored dissents from the

denial of rehearing. Id. 40a, 51a.

REASONS FOR DENYING THE WRIT

This case involves the application of settled law

to unsettled facts. Faced with a claim of an

unconstitutional use of deadly force against a fleeing

motorist, the Fifth Circuit identified and applied this

Court’s well-developed jurisprudence to an

indeterminate record. The court of appeals’ fact-

intensive analysis is sound, and it does not conflict

with the law in eny other court of appeals.

Furthermore, in light of recent police shootings,

many law enforcement agencies are rethinking their

protocols on the use of deadly force. This Court

should await these developments before considering

the reasonableness of a response to any particular

factual scenario.

I. The Fifth Circuit’s Decision Is Consistent

With This Court’s Precedents.

A. The Fifth Circuit Correctly Held On

The Current Record That Petitioner’s

Use Of Deadly Force Violated The

Fourth Amendment.

This Court already has well-developed Fourth

Amendment law concerning the use of deadly force

during high-speed car chases, and the Fifth Circuit’s

jurisprudence on the subject comports with that

guidance.

1. In Tennessee v. Garner, 471 U.S. 1 (1985), this

Court made clear that “[iJt is not better that all

felony suspects die than they escape.” Id. at 11.

Instead, courts confronted with deadly force claims

must consider whether the “officer hald] probable

cause to believe that the suspect poseld] a threat of

serious physical harm.” Jd. When a person fleeing

from the police poses “no immediate threat to the

officer and no threat to others,” the use of deadly

force violates the Fourth Amendment. Id.

This standard requires courts to “slosh [their] way

through the factbound morass of ‘reasonableness.”

Scott v. Harris, 550 U.S. 372, 383 (2007). In Scott,

for example, another case involving a car chase, the

Court weighed “the risk of bodily harm that [the

officer’s} actions posed to [the suspect] in light of the

threat to the public that [the officer] was trying to

eliminate.” Jd. The Court reviewed a video shot from

the officer’s dashboard and noted that the motorist

was “racing down narrow, two-lane roads,” ran

multiple red lights, and “force[d] cars traveling in

both directions to their respective shoulders to avoid

being hit.” Jd. at 379. Thus, the Court held the

officer’s use of deadly force was reasonable because

the high-speed pursuit “posed a substantial and

immediate risk of serious physical injury.” Jd. at 386.

Similarly, in Plumhoff v. Rickard, 134 S. Ct. 2012

(2014), a suspect “passed more than two dozen other

vehicles, several of which were forced to alter course,”

id. at 2021, and “swerveled] through traffic at high

speeds,” id. at 2017 (citation and internal quotation

marks omitted). The suspect also hit multiple police

vehicles and accelerated into a police car while flush

against its bumper. Jd. at 2017, 2021. The Court

held that the officer's use of deadly force was

reasonable because it was “beyond serious dispute

that [the suspect’s] flight posed a grave public safety

risk.” Id. at 2022.

2. In this case and others, the Fifth Circuit has

followed this Court’s instruction that this legal

framework turns on highly fact-intensive analysis.

For example, in Thompson v. Mercer, 762 F.3d 433

(5th Cir. 2014) — issued five months before the

decision below — the Fifth Circuit held that an officer

who used deadly force to end a car chase did not

violate the Fourth Amendment. /d. at 439. The court

of appeals assessed “the threat to the public,” id. at

438 (emphasis omitted) (quoting Scott, 550 U.S. at

383), including the “inherent danger of vehicular

flight,” id. at 439 (internal quotation mark omitted).

The police there, as here, believed the suspect was

armed and watched him exceed 100 miles per hour

while driving down rural roads. See id. at 436. But

the suspect had also stolen a car with the occupant

still in it, drove the wrong way down the road, and

forced other motorists to pull off. Jd. at 436-39.

Furthermore, the officer who used deadly force was

the last one who could stop the suspect before he

reached a town. Id. at 440.

In this case, by contrast, the Fifth Circuit’s fact-

specific inquiry revealed that, for purposes of

summary judgment, petitioner did not have probable

cause to believe Leija posed an imminent threat to

the general public or officers. For starters, there

were no pedestrians, businesses, or residences by the

highway. Pet. App. 15a-16a; see also ROA 719-721.

Nor — in contrast to Scott and Plumhoff — had Leija

passed many other cars, much less run any off the

road. Pet. App. 13a. Thus, numerous higher-ranking

officers, including petitioner’s direct supervisor, had

settled on a plan to use spike systems. See id. 20a-

21a. As the Fifth Circuit put it, “There is no evidence

any other officer , hearing the same information

[petitioner] heard, including the information

regarding Leija’s threats, decided that deadly force

was necessary or warranted.” Id. 20a. To the

contrary, petitioner’s superior ordered him to “stand

by” and “wait and see if the spikes work.” Jd. 5a.

Viewing the facts in respondents’ favor, petitioner

intentionally disregarded that plan. Even though he

had no training in shooting moving vehicles,

petitioner decided to try to disable Leija’s car by

firing six rounds at it just seconds before it was set to

reach the spikes. See Pet. App. 4a. If the jury

accepts this version of the facts, it could reasonably

find — as the police department’s own inspector

general did — that the “risk of bodily harm” from

shooting was unnecessarily high compared to “the

threat to the public that [petitioner] was trying to

eliminate,” Scott, 550 U.S. at 383. See also supra at

5 (discussing OIG report).

Nothing about Officer Ducheneaux’s presence at

the scene alters this calculus. Petitioner claims that

he “did not actually know Ducheneaux’s position or

what he was doing beneath the overpass.” See Pet.

20 (citation and internal quotation marks omitted).

But petitioner was not rushed. He had time to check

on Ducheneaux’s. status, yet he _ discussed

Ducheneaux’s presence with the nearby deputy only

in regard to whether “he would hit [Ducheneaux]; he

did not indicate that he perceived a threat to

Ducheneaux from Leija,” Pet. App. 19a.

Furthermore, the Fifth Circuit found that petitioner

did know officers were trained to take protective

positions after deploying spikes. Jd. 19a; see also

ROA 739-40. Petitioner also knew the overpass had

concrete pillars that could be used for cover. ROA

740. Therefore, petitioner could believe Ducheneaux

was exposed only if he assumed that the officer had

disregarded his training. Under these circumstances,

a jury could find that the threat to Ducheneaux was

too attenuated “at the time of the shooting to

justify deadly force,” Pet. App. 20a.

Nor did the Fifth Circuit “minimize[]” Leija’s

threats to shoot police officers. See Pet. 18. It simply

refused to hold categorically that a threat always

green-lights the use of deadly force, reasoning that

“allegedly being armed and in a car fleeing are not,

by themselves, sufficient” to enable the use of such

force. Pet. App. 16a-17a (emphasis added). That

being so, the Fifth Circuit properly turned to the

“factual scenario here” and distinguished this case

from others where it had held that officers who shot

at “suspect[s} believed to be armed” did not violate

the Fourth Amendment. Id. 17a.

3. In addition to attacking the Fifth Circuit’s

reasonableness analysis, petitioner accuses the Fifth

Circuit of holding categorically that “the Fourth

Amendment forbids an officer to use deadly force

against a fleeing suspect unless and until alternative,

non-deadly means have failed.” Pet. 2. Not so. The

Fifth Circuit simply considered the fact that

alternative means were already in place as one

among many factors that “undermin[ed] the asserted

necessity for resorting to deadly force at that

particular instant.” Pet. App. 21a. It did not hold

that deploying tire spikes or any other tactic is a

necessary precondition to shooting at a fleeing

vehicle.

Not even petitioner maintains that the

availability of alternative means cannot be a factor in

assessing reasonableness. Nor could he. In Scott,

Justice Ginsburg made clear that “relevant

considerations” under the Court's. car-chase

jurisprudence include whether there was a “safer

way, given the time, place, and circumstances, to stop

the fleeing vehicle.” 550 U.S. at 386 (Ginsburg, J.,

concurring). Likewise, other courts of appeals have

held that “the availability of alternative methods of

capturing or subduing a suspect may be a factor to

consider” in the excessive force inquiry. Smith v.

City of Hemet, 394 F.3d 689, 701 (9th Cir. 2005); see

also Retz v. Seaton, 741 F.3d 913, 918 (8th Cir. 2014)

(“Depending on the circumstances, the ‘perspective’ of

a reasonable officer may include consideration of

alternative courses of action available at the time

force was used.”).°

B. The Fifth Circuit’s Refusal To Order

Summary Judgment On Qualified

Immunity Grounds Is Consistent With

This Court’s Precedent.

1. The Fifth Circuit enunciated and applied this

Court’s standard that, to defeat qualified immunity,

the constitutional right at issue “must be sufficiently

clear that a reasonable official would understand that

what he is doing violates that right.” Pet. App. 2la

(quoting Anderson v. Creighton, 483 U.S. 635, 640

(1987)) (internal quotation mark omitted). As the

Fifth Circuit also recognized, this inquiry revolves

around whether the official had “fair warning” that

the conduct at issue was unlawful. Jd. 22a (quoting

Hope v. Pelzer, 536 U.S. 730, 740 (2002)). The Fifth

Circuit followed this Court’s instruction, putting the

“focus. on whether the officer had fair notice” in

the specific context of the case at hand that his

* One of petitioner's amici suggests that petitioner's

superiors might have underestimated the danger that tire

spikes themselves presented. See Br. of Nat'l Ass’n of Police

Orgs. 15-16. If petitioner wishes to argue that using spikes is

comparably dangerous to firing a semiautomatic rifle down upon

a car, he may try to prove that at trial.

conduct was unlawful. Jd. 21a-22a (quoting Brosseau

v. Haugen, 543 U.S. 194, 198 (2004) (per curiam)).

2. The Fifth Circuit held that at the time of the

events here, it was “clearly established” that an

officer violates the Fourth Amendment by “shooting a

suspect fleeing in a motor vehicle” absent a

“sufficient threat of harm to the officer or others.”

Pet. App. 22a-23a (quoting Lytle v. Bexar Cty., 560

F.3d 404, 417-18 (5th Cir. 2009), cert. denied, 559

U.S. 1007 (2010)). Petitioner’s attacks on this

application of settled qualified-immunity principles

to the particulars of this case do not warrant

certiorari.

a. Long before the shooting here, this Court

made clear that the use of deadly force is permissible

only when the “officer has probable cause to believe

that the suspect poses a threat of serious physical

harm, either to the officer or to others.” Tennessee v.

Garner, 471 U.S. 1, 11 (1985). This Court had also

applied this reasonableness test to fleeing motorists,

measuring an officer’s actions against whether the

motorist “posed a substantial and immediate risk of

serious physical injury to others.” Scott v. Harris,

550 U.S. 372, 386 (2007); see also id. at 383-86.

Contrary to petitioner’s argument, this rule was

not too “general” to provide fair notice that

petitioner's conduct would violate the Fourth

Amendment. See Pet. 22-25. When “prior decisions

gave reasonable warning that the conduct then at

issue violated constitutional rights,” those decisions

provided the requisite “fair warning,” even when

there are “notable factual distinctions” between prior

case law and the case at hand. Hope, 536 U\S. at 740

(quoting United States v. Lanier, 520 U.S. 259, 269

(1997)).

That is the situation here. Viewing the evidence

in the light most favorable to respondents, Leija did

not, at the moment of the shooting, “pose[} a threat of

serious physical harm, either to the officer or to

others.” Garner, 471 U.S. at 11; see supra at 10-12.

While Garner involved a suspect fleeing on foot

instead of in a car, Leija’s driving did not pose so

much of a greater threat as to deprive petitioner of

fair warning of the governing law: that deadly force is

unreasonable when the suspect poses “no immediate

threat,” Garner, 471 U.S. at 11.

To be sure, this Court held in Brosseau that

Garner's test did not provide sufficient warning that

shooting a suspect who was attempting to flee in a

car was unlawful. 543 U.S. at 199. But this Court

later made clear that plaintiffs in respondents’

position could “defeat immunity” by showing that

“the officer's conduct in [their] case was materially

different from the conduct in Brosseau.” Plumhoff v.

Rickard, 134 S. Ct. 2012, 2023 (2014). And unlike

Brosseau, where the police confronted a “disturbed

felon” who refused to respond to repeated warnings

from an officer pointing a firearm in his face, the

police never warned Leija that they would use deadly

force. See Brosseau, 543 U.S. at 196, 200. Nor, in

contrast to Brosseau, had Leija been involved in a

fight immediately prior to the officer’s arrival or

physically struggled with a police officer over the

keys to his getaway vehicle. See id. at 195-96. Nor

was Leija in a crowded residential area or about to

drive into a small car occupied by a three-year-old.

See id. at 196.

At bottom, the level of particularity petitioner

demands would amount to giving “one free shot” to

every officer who was the first to use deadly force in

any new permutation of facts. Cf Virginia v. Harris,

558 U.S. 978, 981 (2009) (Roberts, C.J., dissenting

from denial of writ of certiorari) (“The effect of the

rule below will be to grant drunk drivers ‘one free

swerve’ before they can legally be pulled over by the

police.”). Even when all other officers involved in a

pursuit (as well a reviewing agency) realized in the

new situation that using deadly force was “Not

Justified,” ROA 866, an officer would be able to

insulate himself from trial based on ultimately

insignificant factual distinctions. This is not the law.

b. Even if a reasonable officer in petitioner's

shoes needed more fine-grained notice to know that

firing at Leija’s car would be unconstitutional, courts

had held at the time of the events here that officers’

conduct in analogous circumstances violated the

Fourth Amendment. See Pet. App. 22a-23a. In Lytle

v. Bexar County, 560 F.3d 404 (5th Cir. 2009), cert.

denied, 559 U.S. 1007 (2010), an officer fired on a

fleeing motorist who had already collided with one

vehicle during the chase and was on bond for felony

theft and unlawful possession of a firearm. Id. at

407-08. Even though the officer knew the suspect

had a history with weapons and could continue the

car chase, the Fifth Circuit held that his use of force

violated clearly established law because “no one was

in immediate danger.” Id. at 416-17.

In holding that the officer acted unreasonably,

Lytle stressed it was in line with a consensus among

the courts of appeals. 560 F.3d at 415-16 (citing

cases). For example, in Kirby v. Duva, 530 F.3d 475

(6th Cir. 2008), officers confronted a fleeing motorist

whom the officers knew to be “a violent, paranoid

individual” who owned numerous weapons and

“opened the door to his home only with a pointed

gun.” Id. at 477. Yet, in Kirby — as with this case —

the use of deadly force violated the potentially armed

suspect’s “clearly established” Fourth Amendment

rights because there was no “immediate danger to

anyone,” id. at 483 (emphasis added).

Other courts prior to 2010 likewise had

consistently denied qualified immunity in car chase

cases because there was no immediate threat. See,

e.g., Cordova v. Aragon, 569 F.3d 1183, 1190 (10th

Cir. 2009) (“Scott did not declare open season on

suspects fleeing in motor vehicles.” (citation and

internal quotation mark omitted)); Adams v. Speers

473 F.3d 989, 991 (9th Cir. 2007) (ninety-minute long

car chase); Vaughan v. Cox, 343 F.3d 1323, 1326-27

(11th Cir. 2003) (85-mile-per-hour chase after

colliding with a police cruiser). So too in other cases

involving potentially armed suspects because the

threats to police were not imminent. See, e.g,

Meadours v. Ermel, 483 F.3d 417, 423 (5th Cir. 2007)

(denying qualified immunity for officers who shot a

mentally ill man who threatened officers with a

sharp object); O’Bert v. Vargo, 331 F.3d 29, 33 (2d

Cir. 2003) (same for officers who shot a suspect

resisting arrest who had threatened to shoot them).

II. The Fifth Circuit’s Decision Does Not

Conflict With The Law In Any Other

Court Of Appeals.

A. Fourth Amendment Violation

Like the Fifth Circuit, other circuits have held

that officers may not use deadly force in the absence

of an imminent threat — including in a case that this

Court declined earlier this term to review. See, e.g.,

Gonzalez v. City of Anaheim, 747 F.3d 789, 797 (9th

Cir.) (en banc) (officer who shot driver of minivan

violated Fourth Amendment when there was no

immediate danger and alternative means were

available), cert. denied sub nom. Wyatt v. F.E.V., 135

S. Ct. 676 (2014); Waterman v. Batton, 393 F.3d 471,

482 (4th Cir. 2005) (officers were unjustified in

continuing to shoot at a fleeing car after the car had

driven past the officers and no longer posed a threat);

Cowan v. Breen, 352 F.3d 756, 763 (2d Cir. 2003)

(officer who shot at oncoming car violated Fourth

Amendment because officer was not in car’s path).

The law in the Eleventh, Sixth, First, and Eighth

Circuits is not to the contrary. The cases that

petitioner cites from those circuits reflect the fact-

intensive nature of excessive force cases, not any

disagreement about the law.

Eleventh Circuit: In the Eleventh Circuit, as in

the Fifth Circuit, the use of deadly force against a

fleeing motorist is justified only when the motorist

poses an imminent threat. For example, in

petitioner’s cited case, Long v. Slaton, 508 F.3d 576

(11th Cir. 2007), the Eleventh Circuit held that an

officer’s decision to shoot at a person who was driving

away in the officer’s police cruiser was reasonable.

Id. at 583. The court emphasized three key factors:

the driver was known to be mentally unstable and

suffering from a “psychotic episode,” id. at 578; the

officer had warned the driver that he would use

deadly force; and “fully equipped police cruiser(s]”

pose a special danger compared to regular cars. Id.

at 581-82. Because “the time to think [was] short,”

these facts — all absent here — established that the

need for deadly force at that moment was

particularly pressing. Jd. at 583.°

On the other hand, the Eleventh Circuit — just

like the Fifth Circuit — will find a Fourth Amendment

violation when the fleeing motorist did not pose an

imminent threat at the time deadly force was used.

For example, in Vaughan v. Cox, 343 F.3d 1323 (11th

Cir. 2003), which this Court distinguished in Scott v.

Harris, 550 U.S. 372, 384 (2007), and Plumhoff v.

Rickard, 134 S. Ct. 2012, 2024 (2014), the Eleventh

Circuit denied summary judgment to an officer who

shot a fleeing truck. 343 F.3d at 1330. The truck

was travelling at over 85 miles per hour, had evaded

a “rolling roadblock,” and collided with the back of a

police cruiser. Id. at 1326-27. The court of appeals

nonetheless held that the facts could show that the

driver posed no threat to the officer or any other

® Petitioner additionally relies on Quiles v. City of Tampa

Police Department, 596 Fed. Appx. 816 (11th Cir. 2015). Pet.

30. This is an unpublished case that is not precedential in the

Eleventh Circuit. See 11th Cir. R. 36-2 (2014). In any event,

the suspect in Quiles — who was fleeing on foot — presented an

imminent threat because he had just physically fought with a

police officer and it appeared that he had stolen that officer's

gun. See 596 Fed. Appx. at 819.

motorists when, without warning, the officer fired on

the truck. /d. at 1330-31.

Sixth Circuit: The law in the Sixth Circuit is no

different: deadly force is justified only when a

motorist presents an imminent threat. That was the

case in Cass v. City of Dayton, 770 F.3d 368 (6th Cir.

2014), which petitioner cites. There, the fleeing

motorist had been blocked by police cars when an

officer approached the car, drew his weapon, and

ordered the driver to stop. Jd. at 372. The driver

instead accelerated toward and hit the officer, then

hit a second officer, causing the second officer to

accidentally discharge his weapon. Jd. Hearing

gunfire and believing that other officers were in

danger, the first officer made a split-second decision

to fire at the car. Id. at 372-73. Given this imminent

threat, the Sixth Circuit held that the use of deadly

force was reasonable. Id. at 376.

At the same time, th> Sixth Circuit, like the

Fifth Circuit, will find a Fourth Amendment violation

when the threat is not imminent. In Walker v. Davis,

649 F.3d 502 (6th Cir. 2011), for example, the court

held that an officer may have violated the Fourth

Amendment when he rammed his car into a fleeing

motorcycle, killing the rider, because the facts could

show that the rider “posed no immediate threat to

anyone.” Id. at 503; see also Smith v. Cupp, 430 F.3d

766 (6th Cir. 2005) (denying summary judgment for

officer who fired at a suspect who was driving off in

the officer's squad car because jury could find that

the officer was no longer in the car’s path).

First Circuit: Though the First Circuit has not

addressed a case comparable to this one, there is no

reason to think that it would come to a different

outcome if it did. Petitioner's cited case, McGrath v.

Tavares, 757 F.3d 20 (1st Cir. 2014), involved an

immediate threat: the fleeing motorist accelerated

toward first the shooting officer and then his partner.

See id. at 23. The driver did so after leading the

officers on a high-speed chase through city streets,

weaving erratically, and occasionally driving in the

wrong direction. Jd. at 22-23. In the split-second the

officer had to act, the driver posed an “imminent

threat” to the shooting officer's life and his partner's.

See id. at 29.

Eighth Circuit: The Eighth Circuit also has not

considered a case like this one, though again there is

no reason to think it would disagree with the Fifth

Circuit. Petitioner’s cited cases, Loch v. City of

Litchfield, 689 F.3d 961 (8th Cir. 2012), and Cole v.

Bone, 993 F.2d 1228 (8th Cir. 1993), both stressed

imminent threats no: present here.

In Loch, which did not involve a car chase, the

Eighth Circuit held that an officer was justified in

using deadly force against a suspect the officer

reasonably believed was reaching for a weapon. 689

F.3d at 964, 966. Deadly force was similarly justified

in Cole, where the officer — after warning the driver

that he would shoot — fired on a fleeing eighteen-

wheeler. 993 F.2d at 1330-33. By the time of the

shooting, the driver had clearly demonstrated his

disregard for the safety of the police and others on

the crowded interstate by forcing “more than one

hundred cars” off the road, ramming into police cars,

and evading other means of ending the chase. Jd. at

1331.

B. Denial Of Qualified Immunity

Like the Fifth Circuit, several other circuits have

denied qualified immunity at the summary judgment

stage in circumstances similar to those here. See

supra at 17 (collecting other such cases). As with

petitioner’s claimed Fourth Amendment split, his

alleged qualified immunity split is founded on cases

that are easily distinguishable as they involved more

immediate and substantial threats to officers than

the attenuated threat here.

D.C. Circuit: In Fenwick v. Pudimott, 778 F.3d

133 (D.C. Cir. 2015), the D.C. Circuit held that — in

part because that court had no previous law on the

subject — it was not clearly established as of 2007

that it was unreasonable to shoot a fleeing car that

moments before had accelerated towards officers and

had hit one of them. Jd. at 137. The court indicated,

however, that had the threat to the officers clearly

passed by the moment of shooting, the shooting could

have been unreasonable under the law at the time.

See id. at 139-40. Were the D.C. Circuit to have

considered the facts here, therefore, its decision likely

would have been the same as the one below.

Tenth Circuit: Similarly, in Cordova v. Aragon,

569 F.3d 1183 (10th Cir. 2009), the Tenth Circuit

held that it was not clearly established as of 2006

that the officer could not shoot at a fleeing truck that

posed a “substantial but not imminent” threat to the

public. Jd. at 1189, 1192. There, the driver had

exhibited a clear disregard for others by driving off

the road, driving down the wrong side of an

interstate, running two red lights, and avoiding

alternative means of ending the chase. See id. at

1186. However, at the moment of shooting, there

were no other motorists in the immediate vicinity,

and it was disputed whether the shooting officer was

in the truck’s path. Jd. at 1187. The Tenth Circuit

reasoned that the case fell between Scott v. Harris,

550 U.S. 372 (2007), and Vaughan v. Cox, 343 F.3d

1323 (11th Cir. 2003), and therefore held that the

lawfulness of the use of force had not been clearly

established. Cordova, 569 F.3d at 1192-93.

Presented with the facts of this case, which are closer

to those in Vaughan, the Tenth Circuit in 2006 may

well have held that the officer was not entitled to

qualified immunity.

In any event, Cordova held that the officer’s use

of deadly force was unreasonable. 569 F.3d at 1195.

As a result, as of June 2009 — nine months before the

events in this case - the Tenth Circuit had

established that the Fourth Amendment prohibits

shooting at a fleeing vehicle that poses a substantial

but not imminent threat. Thus, if it had been

deciding this case, the Tenth Circuit would have

come to the same conclusion as the Fifth Circuit.

III. This Case Is A Poor Vehicle For Providing

Guidance On The Use Of Deadly Force

During Car Chases.

This Court already has a well-developed body of

case law concerning the use of deadly force. See, e.g.,

Graham v. Connor, 490 U.S. 386 (1989); Tennessee v.

Garner, 471 U.S. 1 (1985). Several of those cases

specifically involve car chases, including one from

just last term. See Plumhoff v. Rickard, 134 S. Ct.

2012 (2014); Scott v. Harris, 550 U.S. 372 (2007);

Brosseau v. Haugen, 543 U.S. 194 (2004) (per

curiam). Given the anomalous facts of this case and

the changing nature of police protocols, taking

another “slosh” through the doctrine’ of

reasonableness at this time, see Scott, 550 U.S. at

383, would not provide helpful guidance to officers or

lower courts in the mine-run of cases.

1. Anomalous facts. In the typical deadly force

case, officers need to make decisions based on near-

instantaneous assessments of the imminence of

threats. See, e.g. Plumhoff, 134 S. Ct. at 2020;

Graham, 490 U.S. at 396-97. Accordingly, this Court

has long instructed that assessing the reasonableness

of a challenged use of force “must embody allowance

for the fact that police officers are often forced to

make split-second judgments.” See Graham, 490

U.S. at 396-97. And qualified immunity similarly

protects such snap judgments, even if they later turn

out to have been mistaken, because it is undesirable

to require police officers to equivocate when delay

“would gravely endanger their lives or the lives of

others,” Warden, Md. Penitentiary v. Hayden, 387

U.S. 294, 298-99 (1967).

Here, however, the circumstances of petitioner’s

decision to use deadly force are highly unusual.

Petitioner was eager to use his rifle even before

getting to the overpass or observing any part of the

pursuit himself. Supra at 3-4. Once there, petitioner

had three minutes with a working radio to determine

if the threat to Officer Ducheneaux actually justified

deadly force. Jd. Instead, he disobeyed a direct order

from his commanding officer, ignored a plan others

had put in place, and attempted a challenging rifle

shot he had no training in executing. Id. Citing “the

amount of time” that petitioner had before shooting,

the OIG report concluded that “the evidence does not

justify [petitioner’s] actions.” ROA 866.

There is little to be gained by reviewing

petitioner’s renegade actions.

2. Changing protocols. In light of recent high-

profile police shootings — and the extensive publicity

surrounding them — law enforcement agencies have

been re-evaluating their protocols on the use of

deadly force. See, e.g, Pervaiz Shallwani et al.,

Police Move to Revamp Tactics, Wall St. J., Dec. 5,

2014, at Al. Among other things, agencies are

reassessing some of the accepted rationales for using

force at earlier stages of an engagement. Matt

Apuzzo, Police Rethink Long Tradition on Using

Force, N.Y. Times, May 5, 2015, at Al; Mitch Smith

& Matt Apuzzo, Police in Cleveland Accept Tough

Standards on Force, N.Y. Times, May 27, 2015, at Al

(describing new Cleveland police policy restricting

use of force as a “model” for other departments). In

rethinking how and when they use deadly force to

engage with threats, agencies are adjusting their

tactics and are generally moving towards de-

escalation. Shallwani, supra.

Because of these trends, future police responses

to situations like this one may be very different from

the officers’ actions here. And the resulting

reasonableness analysis may differ as well. See, e.g.,

Garner, 471 U.S. at 10-11 (giving “substantial”

weight to police department policies concerning use of

deadly force). This Court, therefore, should wait for a

case that concerns police behavior resulting from this

realignment — and more typical facts — to provide

lasting guidance for law enforcement.

CONCLUSION

The petition for a writ of certiorari should be

denied.

Respectfully submitted,