Monday, November 16, 2015

227.3 - Outrage of the Week: SCOTUS makes it almost impossible to sue killer cops

Outrage of the Week: SCOTUS makes it almost impossible to sue killer cops

Now for our other regular feature, this is the Outrage of the Week.

And the source of this week's outrage has been the source of too much outrage over the time we've been doing this show: the US Supreme Court.

Let's run down the basic facts: On March 23, 2010, Israel Leija lead Texas police on an 18-minute chase at speeds up to 110 miles per hour after cops tried to serve him with an arrest warrant.

Clearly, police had cause to stop Leija, so they laid down road spikes at three locations he was predicted to pass. But at one location, beneath an overpass, state trooper Chadrin Mullenix showed up, having heard about events on his police radio. When it developed that Leija was coming that way, Mullenix decided his own strategy: He went up onto the overpass with a high-powered rifle, intending to shoot the car's engine block. He got into shooting position and waited.

As Leija's approached three minutes later, Mullenix fired six times. He didn't hit the engine once. However, he did hit Leija four times, killing him.

Chadrin Mullenix
Okay, here's some necessary fill: Mullenix not only had no training in shooting at a moving vehicle, he had never even seen it done. Mullenix asked his superior officer for permission to proceed with his plan, but was told to "stand by" and "see if the spikes work first." Mullenix claims he never heard that message, but even if that's true, it means he asked for permission and then went off without waiting for an answer.

The claim that he was protecting other officers is belied by the facts that the officers involved with the spike strips did have training on how to minimize the risk to themselves from the car hitting the spikes - which Mullenix would know - none of them had expressed any concern for their safety - which Mullenix would also know - and the timed gained, the time between when Mullenix shot Leija and when the car hit the spikes, was less than 3/4 of a second. And after the shooting, Mullenix's first words to his superior were "How's that for proactive?" That apparently had been an issue in an evaluation.

Leija's family sued Mullenix, claiming he had violated Leija's Fourth Amendment rights by using excessive force. Mullenix claimed what's called "qualified immunity," under which cops and other government agents can't be held personally liable for damages unless their conduct violates "clearly established" statutory or constitutional rights.

The trial judge denied the claim, saying the case could go to a jury. A panel of the Fifth Circuit Court of Appeals upheld that ruling. On re-hearing, the full Court did likewise.

Sonia Sotomayor
On November 9, the Supreme Court overturned that decision, letting Mullenix off the hook, saying that cops are immune from lawsuits unless it is "beyond debate" that a shooting was unjustified and clearly unreasonable.

Beyond debate! That is a standard higher than that required for a murder conviction in a criminal trial. But that, apparently, is what the Supreme Court thinks is a reasonable standard to hold a cop liable for killing someone, a standard which would make is essentially impossible to hold a cop civilly liable for shooting someone down.

What wrenches my gut more is that the decision was 8-1. Yes, Stephen Breyer was with the majority. Yes, Elena Kagen was with the majority. Yes, the latest liberal hero, Ruth Bader Ginsburg, was with the majority.

The dissent, and it was a blistering one, came from Sonia Sotomayor, who lambasted the majority for both re-framing the issue and describing the facts in the ways most favorable to Mullenix even when that meant ignoring precedent.

Her conclusion deserves special recognition: Referring to Mullenix's "proactive" crack, she says that doesn't affect the legal reasoning, but, quoting now,
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.
At this point, I don't see why we don't just issue all cops double-0 badge numbers and be done with it. It truly is an outrage.

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