Supreme Court is on his side.

Photographer: Frederic J. Brown/AFP/Getty Images

Supreme Court Shields Police From Juries

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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In the post-Ferguson era, the details of a police shooting that kills a fleeing defendant are all-important -- and you might think we would want juries, not judges, to consider them.

But on Monday, eight justices of the U.S. Supreme Court made it harder for police shooting cases to reach a jury. The court held that a Texas state trooper couldn't be sued for using his rifle to shoot the driver of a car that led police on an 18-minute chase. Only Justice Sonia Sotomayor, who’s emerging as the court’s conscience on race, thought the suit should be able to go forward.

The facts of the case are striking, and to a degree disputed. A police officer in Tulia, Texas, approached Israel Leija Jr., who was in his car, and told him he had a warrant for his arrest. Leija immediately sped off with the police in tow. In the chase he brought his car to speeds of between 85 and 110 mph.

While he was driving, Leija called the Tulia police dispatcher twice, claiming to have a gun he would use to shoot the police officers. The dispatcher, who told the police in pursuit, thought Leija might be drunk.

The police set up a spike strip under an overpass to burst Leija’s tires and stop him. Before the car could reach the spike strip, however, Texas state trooper Chadrin Mullenix set up a position on the same overpass, 20 feet above Interstate 27. He asked his supervisor if taking a shot at the car was worth doing. The supervisor said he should “stand by” and “see if the spikes work first.” But by the time the answer came, Mullenix was already in shooting position, and he may or may not have heard the supervisor.

Although he hadn’t been trained in the technique of stopping a car with a rifle, Mullenix was apparently a good shot. As Leija’s car approached, he fired his service rifle six times. Four of the bullets hit Leija, killing him. None hit the radiator, hood or engine block. Leija’s car then ran over the spike strip, slammed into the median, and spun over two and a half times.

Leija’s family sued, claiming the shooting used excessive force. Both the district court and the U.S. Court of Appeals for the 5th Circuit ruled that the case could go forward, because there was a genuine issue of whether the officer acted recklessly or reasonably.

The Supreme Court, however, without waiting for oral argument, ruled that the lawsuit could not go forward. It held that Mullenix is protected by the doctrine of qualified immunity. That doctrine, which applies to officers in the performance of their duties, says that the officer can't be sued unless he's violated someone’s “clearly established” legal rights that “a reasonable person would have known.”

In essence, the court held that it wasn't clearly established that Mullenix couldn’t shoot Leija. The trooper could reasonably have thought the shooting was permissible under the circumstances.

If that surprises you, you're not alone. The lower courts that addressed the issue started with a general rule announced by the Supreme Court in 1985's Tennessee v. Garner: Officers can’t use deadly force against a fleeing felon unless the felon poses a sufficient threat of harm to the officer or others. Those courts thought that, on the facts alleged, Mullenix might well have violated this clearly established rule, because the threat posed by Leija wasn’t great enough to justify shooting to kill.

But the Supreme Court rejected the idea that the clearly established rule was the rule against using deadly force as a general matter. Instead, the court said the question should be  about the specific fact situation. Thus, the court asked whether it was clearly established that the trooper couldn't use deadly force in the precise circumstances that he faced – and said the answer was no.

By requiring analysis of the specific situation, rather than applying the general rule, the court opened the door to make its own assessment of the specific facts. It emphasized the 25-mile chase and its high rate of speed, and said that the spike strip posed risks of its own to officers or bystanders.

The upshot is that a jury will never get to weigh the question of whether the deadly force was excessive. And the court was signaling to federal district judges all over the country that they, too, should consider the specific facts in police shootings, and stop suits from ever reaching a jury if the judges think that the officer's conduct didn't violate clearly established law.

Justice Antonin Scalia wrote separately to say that he didn’t even think the trooper used deadly force, because he intended to stop the car, not kill the driver. This rather casuistic distinction deserves analysis on its own, but suffice it to say for now that no other justice bought it.

What’s more remarkable is that no other justice joined Sotomayor’s dissent. She said it was clearly established that an untrained officer shouldn't fire six rounds into a car in the dark. She pointed out that the car was going to hit the spikes anyway, as it in fact did -- and there were two backup spike strips set up farther along the highway.

Sotomayor ended with a clear post-Ferguson reference. After the shooting, Mullenix apparently turned to a colleague and said, “How's that for proactive?” Sotomayor said the remark, though not legally relevant, “seems to me revealing of the culture this Court’s decision supports.” The court, she said, was sanctioning a “‘shoot first, think later’ approach to policing.”

One justice, at least, thinks juries are relevant to reviewing police shootings in this moment of national controversy. But eight would rather leave things to the judiciary.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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Noah Feldman at

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Stacey Shick at