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Discussion Starter · #1 · (Edited)
Synopsis:
Original news release from 2010...
https://local.nixle.com/alert/2630224/
Traffic stop, wrong way driver. Plain view MJ. Car chase, hits officers cars a number of times. Crashes. Officers box him in, he drives head on into police car. Backs up, nearly running over officer, who fires 3 shots, taken to hospital, dies.


http://www.detroitnews.com/story/ne...018/01/02/police-shooting-ferndale/109099014/

According to this link, officer violated suspect's rights, no danger to officer or public. Yet there's no case law (from 2010) that would find his conduct unreasonable for the purposes of a lawsuit. What????

I would think unconstitutional is unreasonable prima facie.

That said, I would think there's plenty of precedent, case law for firing at a car trying to run you over as defensible reasonable shooting. Some recent cases seen to favor getting out of the way if possible though...

Guessing initial facts were wrong? Maybe he fired at the fleeing car after it passed?

Can't find more recent articles on the incident to verify those initial details to justify (in my mind) the lawsuit.

Makes sense he has immunity at least. Unless he really did unconstitutional (personable that's outside the scope of policy, practice), would that revoke his immunity if true?

Seems a mess. Does this not add up, or it makes sense and I'm reading this wrong?

ETA:. Found account where driver " slowly moved his car in reverse". Maybe that's why the judges felt deadly force wasn't justified.... Plenty of time to move, avoid?

Randy

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Agree totally on the confusion. An article I found said:

The chase eventually ended with police cars on three sides of Latits' vehicle. With no one behind him, he slowly moved his car in reverse. Phillips then shot Latits, striking him with three bullets.

Latits "showed a persistent intent to flee but not an intent to injure, and never placed the public or the officers at imminent risk. ... The shooting was not objectively reasonable," said judges Jane Stranch and Timothy Black. They then said that immunity applied.

I’d have to check further but I think there is a mid 1980’s case that discusses the objectively reasonable standard for public officials for qualified immunity. I think it holds that an officer is entitled to qualified immunity if he can establish as a matter of law that a reasonable officer could have believed that shooting was appropriate, even though it actually was not. There is a mid-1980’s Supreme Court case that discusses this. I think the case is SOMEONE v Creighton. Creighton involved an FBI search where the warrant was bogus but the agents believed it was OK.

Having only read the one blurb on the case, it appears as if the Judges felt the officer truly felt the shooting was appropriate and they (the Judges) felt it was not but the couldn’t overcome the officers honest belief so the immunity applied. At least that’s how it appears from a glance. The law seems to have the right balances placing the emphasis on the officer’s state of mind rather than the Judge’s after the fact critique.
 

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Discussion Starter · #3 ·
Yeah, seems like I remember a ruling around 84 that restricted shooting fleeing felons to cases where they were danger to others/society and was not easy to find them/ pick them up later.

Randy

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Synopsis:
Original news release from 2010...
https://local.nixle.com/alert/2630224/
Traffic stop, wrong way driver. Plain view MJ. Car chase, hits officers cars a number of times. Crashes. Officers box him in, he drives head on into police car. Backs up, nearly running over officer, who fires 3 shots, taken to hospital, dies.


http://www.detroitnews.com/story/ne...018/01/02/police-shooting-ferndale/109099014/

According to this link, officer violated suspect's rights, no danger to officer or public. Yet there's no case law (from 2010) that would find his conduct unreasonable for the purposes of a lawsuit. What????

I would think unconstitutional is unreasonable prima facie.

That said, I would think there's plenty of precedent, case law for firing at a car trying to run you over as defensible reasonable shooting. Some recent cases seen to favor getting out of the way if possible though...

Guessing initial facts were wrong? Maybe he fired at the fleeing car after it passed?

Can't find more recent articles on the incident to verify those initial details to justify (in my mind) the lawsuit.

Makes sense he has immunity at least. Unless he really did unconstitutional (personable that's outside the scope of policy, practice), would that revoke his immunity if true?

Seems a mess. Does this not add up, or it makes sense and I'm reading this wrong?

ETA:. Found account where driver " slowly moved his car in reverse". Maybe that's why the judges felt deadly force wasn't justified.... Plenty of time to move, avoid?

Randy

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These things can be very fact specific, and the smallest difference can affect the outcome.
 

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I really do feel bad for those working Law Enforcement. The smallest detail will be debated by folks safe, warm in their chairs. You are expected to think thru the situation calmly (when you likely are a bit hyped up from lights, siren, driving to scene, bit of concern for your, as well as others safety...). But the your bopping around, playing the fool who you are told is armed...

Thanks.
40 yrs ago I wanted that job.
 

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Qualified immunity is immunity from the trial, not just any potential damages from the lawsuit. Qualified immunity is litigated at the summary judgment stage. At summary judgment, all facts and inferences must be viewed in the light most favorable to the non-moving party.

It's the officers who would be moving for summary judgment based on the grounds qualified immunity. So the non-moving party will be the bad guy in these cases. That means that all facts and inferences have to be viewed in the light most favorable to the bad guy.

Qualified immunity applies unless an officer violated a clearly established Constitutional right. There are two issues here. First, was there a Constitutional Right violated. If the answer is no, the case ends. If the answer is yes, the court has to ask whether that right was clearly established.

(After Pearson v. Callahan, the Courts do not have to formulaically apply this two-pronged test, and can skip to the clearly established prong if they don't want to decide whether a Constitutional right was implicated.)

Here is part of the Court's analysis here:

"To determine whether Latits presented an imminent danger to officers or the public at the time Officer Phillips shot him requires analysis of both the moments before the shots were fired and the prior interactions between Latits and Phillips. Just before the shots, the videos show that Latits reversed past Phillips before Phillips raised his gun and before gunshots can be heard. In Hermiz v. City of Southfield we stated that: "A reasonable jury drawing inferences in the estate's favor could determine that an officer that aimed and fired shots while to the side of the vehicle," after "the hood of [the suspect's] car already passed the point where it could harm [the officer]," "would have had time to realize that he was no longer in the path of the car and no longer in immediate danger." Likewise, because Officer Phillips fired after Latits's car had passed the point where it could harm him, Phillips had time to realize he was no longer in immediate danger. The evidence also shows that Officer Phillips could see that no other officers or other persons were in Latits's path when Phillips fired. Latitswas reversing away from Officers Jaklic and Wurm, who were in front of him and to his left, respectively. Officer Danielson's dashboard camera shows that Phillips's car was between her car and Latits's car at the time of the shooting, so Latits was reversing away from her as well. There were no other officers on the scene, and there is no evidence or suggestion by the Defendant that members of the public were in the immediate path of Latits's car. Cf. Cupp, 430 F.3d at 774 (finding deadly force unreasonable where the "record does not establish the presence of any bystander . . . whose physical safety could have been endangered by [the driver's] actions"). The videos displaying Officer Phillips's position show that he could see that no persons or cars were in the immediate path on which Latits was traveling. Furthermore, the record includes no evidence suggesting that by continuing to reverse, Latits's intention was anything except to flee. Given the above analysis, Latits did not objectively appear ready to drive into someone when Officer Phillips shot him."

Look at what the court is doing here, they are viewing the evidence in the light most favorable to the bad guy.

Here is the whole case: https://law.justia.com/cases/federal/appellate-courts/ca6/15-2306/15-2306-2017-12-27.html

They go on to find that there was no clearly established case law on point to place the matter beyond debate, so the Officer wins anyway.

This is one of those cases where the Court should have followed Pearson v. Callahan and just skipped the Constitutional analysis and decided on the basis of no clearly established right.
 

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Qualified immunity is immunity from the suit, not just the outcome of the lawsuit. Qualified immunity is litigated at the summary judgment stage. At summary judgment, all facts and inferences must be viewed in the light most favorable to the non-moving party.

It's the officers who would be moving for summary judgment based on the grounds qualified immunity. So the non-moving party will be the bad guy in these cases. That means that all facts and inferences have to be viewed in the light most favorable to the bad guy.

Qualified immunity applies unless an officer violated a clearly established Constitutional right. There are two issues here. First, was there a Constitutional Right violated. If the answer is no, the case ends. If the answer is yes, the court has to ask whether that right was clearly established.

(After Pearson v. Callahan, the Courts do not have to formulaically apply this two-pronged test, and can skip to the clearly established prong if they don't want to decide whether a Constitutional right was implicated.)

Here is part of the Court's analysis here:

"To determine whether Latits presented an imminent danger to officers or the public at the time Officer Phillips shot him requires analysis of both the moments before the shots were fired and the prior interactions between Latits and Phillips. Just before the shots, the videos show that Latits reversed past Phillips before Phillips raised his gun and before gunshots can be heard. In Hermiz v. City of Southfield we stated that: "A reasonable jury drawing inferences in the estate's favor could determine that an officer that aimed and fired shots while to the side of the vehicle," after "the hood of [the suspect's] car already passed the point where it could harm [the officer]," "would have had time to realize that he was no longer in the path of the car and no longer in immediate danger." Likewise, because Officer Phillips fired after Latits's car had passed the point where it could harm him, Phillips had time to realize he was no longer in immediate danger. The evidence also shows that Officer Phillips could see that no other officers or other persons were in Latits's path when Phillips fired. Latitswas reversing away from Officers Jaklic and Wurm, who were in front of him and to his left, respectively. Officer Danielson's dashboard camera shows that Phillips's car was between her car and Latits's car at the time of the shooting, so Latits was reversing away from her as well. There were no other officers on the scene, and there is no evidence or suggestion by the Defendant that members of the public were in the immediate path of Latits's car. Cf. Cupp, 430 F.3d at 774 (finding deadly force unreasonable where the "record does not establish the presence of any bystander . . . whose physical safety could have been endangered by [the driver's] actions"). The videos displaying Officer Phillips's position show that he could see that no persons or cars were in the immediate path on which Latits was traveling. Furthermore, the record includes no evidence suggesting that by continuing to reverse, Latits's intention was anything except to flee. Given the above analysis, Latits did not objectively appear ready to drive into someone when Officer Phillips shot him."

Look at what the court is doing here, they are viewing the evidence in the light most favorable to the bad guy.

Here is the whole case: https://law.justia.com/cases/federal/appellate-courts/ca6/15-2306/15-2306-2017-12-27.html

They go on to find that there was no clearly established case law on point to place the matter beyond debate, so the Officer wins anyway.

This is one of those cases where the Court should have followed Pearson v. Callahan and just skipped the Constitutional analysis and decided on the basis of no clearly established right.
But you can’t win a summary judgment if there are disputed issues of material fact. Goes to the jury, then.
 

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But you can’t win a summary judgment if there are disputed issues of material fact. Goes to the jury, then.
That's true, a genuine issue of material fact will preclude summary judgment on qualified immunity. In this case, there weren't any material facts in dispute and the court focused a great deal on the the video tapes from the dashcams. However they have to view those tapes (to the extent that they can be viewed or interpreted in multiple ways) in the light most favorable to the non-moving party, the bad guy.
 

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Discussion Starter · #9 · (Edited)
So I get the part where they found he wasn't supposed to shoot (already surmised that part must have meant he shot after the car passed and was no longer a danger to himself, since usually ok to shoot a guy actively trying to run you over). So the constitutional right part makes sense if that was the case.

Didn't know about the second prong of that test, thanks for explanation...

However, at that point, I would have thought Garner, back in 85, well before this incident, would have ... ahem.. clearly established the "clearly established" prong and resulted in no immunity.

(I had to look up Garner, knew there was fleeing felon change in the 80's, but least I got the part about the non-moving party being the guy driving away and the moving party being the stationary cop that shot...)

Randy

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So I get the part where they found he wasn't supposed to shoot (already surmised that part must have meant he shot after the car passed and was no longer a danger to himself, since usually ok to shoot a guy actively trying to run you over). So the constitutional right part makes sense if that was the case.

Didn't know about the second prong of that test, thanks for explanation...

However, at that point, I would have thought Garner, back in 85, well before this incident, would have ... ahem.. clearly established the "clearly established" prong and resulted in no immunity.

(I had to look up Garner, knew there was fleeing felon change in the 80's, but least I got the part about the non-moving party being the guy driving away and the moving party being the stationary cop that shot...)

Randy

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Mullenix v Luna says that the existing precedent has to place the conclusion that the officer acted unreasonably “beyond debate.” The court says that there wasn't enough existing precedent to do that in this case. The particular conduct engaged in by the officer must be violative of clearly established precedent in the specific context of the case before the court.

The court couldn't find any previous case where an officer acting under similar circumstances was found to have violated the Fourth Amendment.
 

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Discussion Starter · #11 ·
Mullenix v Luna says that the existing precedent has to place the conclusion that the officer acted unreasonably “beyond debate.” The court says that there wasn't enough existing precedent to do that in this case. The particular conduct engaged in by the officer must be violative of clearly established precedent in the specific context of the case before the court.

The court couldn't find any previous case where an officer acting under similar circumstances was found to have violated the Fourth Amendment.
They mentioned no precedent "at that time", assuming that's implying it's not the case anymore, he would have lost if same thing happened today?

Honestly, still don't understand why Garner isn't sufficient precedent. Seems like they considered it an uncontested fact he was fleeing and no threat, wouldn't Garner obviously apply?

I'm just a reserve, no legal training, so apologize for not getting it. You're explaining it like I have some idea I know what I'm talking about...
Maybe in good at faking it.

Randy





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PoPo wrong, doesn't even matter the circumstances , Just PoPo wrong. Sad state of affairs for this country and it's protectors.
 

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They mentioned no precedent "at that time", assuming that's implying it's not the case anymore, he would have lost if same thing happened today?

Honestly, still don't understand why Garner isn't sufficient precedent. Seems like they considered it an uncontested fact he was fleeing and no threat, wouldn't Garner obviously apply?

I'm just a reserve, no legal training, so apologize for not getting it. You're explaining it like I have some idea I know what I'm talking about...
Maybe in good at faking it.

Randy





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This case would set precedent for future similar circumstances since they decided the Constitutional issue, even though they didn't need to.

This is a little bit complicated, but I'll do the best that I can here. There is also no need to apologize, because this area of the law is extremely complicated and has many moving parts. I am also a reserve officer, and although I am also a lawyer and part-time law professor, I've heard oral arguments where the sitting judges were getting this stuff wrong.

As I mentioned before, qualified immunity is a two-part test. The court considers the Constitutional question and whether that right is clearly established such that it would put a reasonable officer on notice.

If the court analyzes and decides against a plaintiff on the Constitutional issue, there is no need to reach the clearly established prong. If the court decides that there was no clearly established precedent on point, there is really no need to address the Constitutional issue.

There was always a debate in the law whether courts need to consider both prongs, or just one of the prongs. One side of the debate says that since courts are not supposed to be in the business of issuing advisory opinions, they should only decide the issues before them on narrow grounds and avoid reaching Constitutional issues if there is no need to do so. The other side of the debate says that by refusing to decide the Constitutional issues in cases, even when there isn't a need to do so, the courts contribute to a stagnation of the law and never put anyone on notice as to what clearly established Constitutional law is.

In 2001, the Supreme Court decided the case of Saucier v. Katz. The jist of the holding is that the court should always apply a rigid two-pronged standard when deciding qualified immunity cases:

"A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry. Siegert v. Gilley, 500 U. S. 226, 232 (1991). In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case. If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable."

Between 2001 and 2009, a lot of Federal Judges were complaining that they didn't need to reach the Constitutional issues to dispose of cases, and that the Supreme Court's rigid two-prong test forced them to engage in analysis that wasn't necessary to dispose of a case, particularly when there was no clearly established law on point.

In 2009, in the case of Pearson v. Callahan, the Supreme Court reversed itself, and said that although the rigid two-prong test was "helpful" it was no longer mandatory. So courts could engage in only the clearly established prong of the analysis and avoid reaching the Constitutional issue if they chose to do so.

However, courts are still free to reach both prongs as well, since Pearson says that such analysis is "helpful."

CONTINUED ON NEXT POST
 

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The clearly established law prong of the test has been interpreted by the Supreme Court in such a way as to protect officers. One of the best cases on this was the 2015 opinion in Mullinex v. Luna.

It's important to know a bit about the facts from that case.

In Luna, officers were pursuing a wanted person who fled at speeds of 85-110 mph on the interstate. During the chase, he phone dispatch, claimed to have a gun and threatened to shoot officers if they wouldn't break off the pursuit.

A trooper, hearing the chase, decided that he was going to end it. So he hatched a plan. He decided to set up on an overpass, get out his patrol rifle, and shoot the approaching vehicle to disable it. Despite the fact that he had never been trained to do this, and despite the fact that there was some debate as to whether he was called off from attempting this tactic, he decided to stop the chase.

He succeeded in stopping the chase, but he didn't disable the suspect's vehicle, he disabled the suspect, by killing him.

Here is the rule from Mullinex v. Luna:

"The doctrine of qualified immunity shields officials from civil liability so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. A clearly established right is one that is “sufficiently clear that every reasonable official would have understood that what he is doing violates that right. We do not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.”

The court went on to explain that the analysis of the officer's actions must be made at a specific rather than a general level of abstraction:

"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.’ Yet this Court has previously considered—and rejected—almost that exact formulation of the qualified immunity question in the Fourth Amendment context. 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.” This Court summarily reversed, holding that use of Garner’s “general” test for excessive force was “mistaken.” 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 (emphasis 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.” This Court faulted that formulation for failing to address the actual question at issue: whether “the circumstances with which Anderson was confronted . . . constitute[d] probable cause and exigent circumstances.” Without answering that question, the Court explained, the conclusion that Anderson’s search was objectively unreasonable did not “follow immediately” from—and thus was not clearly established by—the principle that warrantless searches not supported by probable cause and exigent circumstances violate the Fourth Amendment."

So the issue is whether in the specific circumstances encountered by the officer, (fleeing felon at 85-110 on an interstate who was making threats to shoot officers) was there case law on point to put Mullinex on notice, such that it would be "beyond debate" that he should engage in his plan.

Similarly, the court in this case has to do the same thing. While there doesn't have to be a case directly on point, there has to be case law so similar that it would place the question beyond debate as far as the officer shooting the vehicle.

By deciding the Constitutional question, future officers are NOW put on notice as to the legality of this tactic, even though the court didn't need to decide the question in order to dispose of this case.
 
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