Supreme Court Has Had Enough With Police Suits
A unanimous U.S. Supreme Court on Monday decided a police immunity case that sounds small but carries a larger significance. The narrow holding was that a police officer who arrived late at the scene of a confrontation and then shot and killed the suspect without having heard other officers issue a warning is protected from a lawsuit. What really mattered was the reasoning: The court said the officer couldn’t be sued because there was no case on the books finding an officer liable under the exact same circumstances.
This decision makes it much harder to sue the police, because almost all confrontations have unique features that could be used to block lawsuits. In essence, the court is signaling that it wants fewer suits against officers in the lower courts, and is chiding the appellate courts for allowing such suits.
The facts of the case, White v. Pauly, got a lot of detailed attention from the court -- maybe more than was warranted. Daniel Pauly was pursued by New Mexico state police after they received a report that he was driving erratically. The police knew there wasn’t enough evidence to charge Pauly with a crime, but they wanted to talk to him anyway, and so they traced him to what turned out to be his brother Samuel’s house.
When the Pauly brothers realized there was someone outside the house, they called out, asking who was there. The two officers allegedly laughed and said “We got you surrounded. Come out or we’re coming in.” Daniel Pauly says the brothers never heard the police identify themselves. The brothers grabbed weapons, Daniel a shotgun and Samuel a handgun, and yelled out, “We have guns.” The two police officers took cover.
Just at that moment a third officer, Ray White, pulled up to the house. He heard the “We have guns” statement and himself took cover, kneeling behind a wall. Daniel Pauly came out of the back door and fired two shotgun blasts, which didn’t harm anybody. Samuel Pauly then pointed his handgun out the window in White’s direction. One of the other officers shot at Samuel Pauly and missed. Then White shot and killed him.
The surviving Pauly sued all three officers for violating the brothers’ constitutional rights by using excessive force. The part of the case that made it to the Supreme Court was the suit against White, the officer who arrived last and shot Samuel.
The basic legal structure in such cases is, in theory, simple. Police charged with violating constitutional rights ordinarily assert a defense known as “qualified immunity.” What that means is that a lawsuit against them cannot proceed unless it alleges that their conduct violated clearly established federal law. Following this script, White argued that there was no clearly established federal law prohibiting his conduct in shooting Samuel.
Both a federal district court and a panel of the U.S. Court of Appeals for the 10th Circuit disagreed with White, allowing the suit against him to go forward. The appeals court said that it is clearly established that a reasonable officer in White’s position would believe that a warning is required before shooting a suspect -- even if the officer is in danger of harm.
This legal conclusion was altogether plausible. The leading Supreme Court case that analyzes the use of deadly force against a suspect, Tennessee v. Garner, says that “if the suspect threatens the officer with a weapon … deadly force may be used if necessary … if, where feasible, some warning has been given.” That language sounds as if it requires a warning, which Pauly alleges was never given. The lower courts thought this meant the trial was appropriate to figure out whether the warning had in fact not been given, in which case White might be civilly liable for the shooting.
The Supreme Court reversed the decision in an unsigned, unanimous opinion. It said the appellate court had gotten it wrong because it “failed to identify a case where an officer acting under similar circumstances as Officer White was held to have violated the Fourth Amendment.”
To give a sense of just how precisely the court wanted the facts evaluated, the opinion went on to say that “no settled Fourth Amendment principle” requires an officer to second-guess what steps might have been taken by officers who were already on the scene.
The justices made it clear that they wanted to send a message. They chided the appellate court for evaluating clearly established federal law at too high a level of generality, rather than considering the details of the case. And the opinion referred to several occasions “in the last five years” in which the Supreme Court has reversed lower courts on the qualified immunity issue.
There’s little doubt of the message to the lower courts: The Supreme Court wants fewer lawsuits against police to go forward. The facts of this case were “unique,” the court noted. But by definition, that’s always true: The facts differ from case to case. By adopting the narrowest possible level of generality in understanding clearly established law, lower courts could confer qualified immunity on police in almost every imaginable case.
It’s worth asking why now, with close attention being paid to law enforcement’s use of force against suspects, the court would go out of its way to send this message. The cynical answer is that the justices, even the liberals among them, don’t think the courts are a very effective venue for resolving social questions around policing and force.
Courts’ limitations are real, as is shown by controversial outcomes in a growing number of use-of-force cases. But the question remains: If courts won’t rein in police, who will? The Supreme Court picked the wrong time to express annoyance with such cases. A few more lawsuits is a price we should be willing to pay to help protect suspects from unnecessary deadly force.
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 firstname.lastname@example.org
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