Construing the facts in the light most favorable to the plaintiff, as we must, here’s what happened:
Israel Leija, Jr., sped away from police onto an empty country highway. (There was a warrant for his arrest from a motion to revoke his misdemeanor probation.) Officers coordinated their pursuit. Spike strips were strategically placed at three locations on the empty road ahead. In short, Leija’s apprehension seemed imminent. There was no perceivable risk of harm to the public because the highway was deserted. There was no risk of harm to other officers because they were either pursuing at a safe distance or off the road, awaiting Leija’s encounter with the spike strips. And there was certainly no risk to Officer Mullenix, who was perched alone on an overpass, like a sniper.
Mullenix had asked for permission to fire his rifle at Leija’s car, and he had positioned himself on the overpass for that purpose. But Mullenix chose either to avoid or to ignore the negative response that came from his commanding officer, who told him to “stand by” and “wait and see if the spikes work.” Mullenix also asked a sheriff’s deputy about firing at Leija’s car, and the deputy likewise reminded Mullenix that spike strips were in place. After Mullenix sat and contemplated the situation for three minutes, Leija’s car reached the overpass and Mullenix fired away.
Mullenix shot six times into Leija’s car, hitting Leija four times in the chest and killing him. Seconds later, Leija’s car hit the first spike strip and spun out of control. When it was over, Mullenix quipped to his commanding officer: “How’s that for proactive?”
An internal investigation concluded that, given the amount of time he had to assess the situation, Mullenix acted “without due regard for the safety of [others]” and his use of deadly force was “reckless” and “Not Justified.” Mullenix sought summary judgment on immunity grounds and the district court denied that motion. The court of appeals, after reviewing the record, affirmed that denial.
Despite all this, the majority now reverses that decision and cloaks Mullenix in the blanket of qualified immunity. I join JUSTICE SOTOMAYOR’s dissent in full because I agree that our case law establishes that Mullenix’s conduct was unconstitutional.
But if it truly has never been “clearly established” that police officers cannot set up sniper perches on highway overpasses to fire premeditated rifle shots into the cars of misdemeanants who are speeding on deserted highways, as the majority claims, then at the very least we should take this opportunity to establish it. By granting immunity to Mullenix and also declining to reach the constitutional question, the Court effectively grants immunity to future officers who choose to play sniper from an overpass, because they too will be able to claim that a person’s right to be safe from such conduct has (still) never been established.
If Mullenix’s supervising officer thought, beforehand, that Mullenix should “stand by” and “wait and see if the spikes work”; if an internal investigator found, afterward, that Mullenix’s conduct was reckless and unjustifiable; and if even Mullenix himself, at the time, was questioning his plan enough to ask other officers what they thought about it before he decided to ignore them, then it seems a reasonable police officer should know that Mullenix’s use of deadly force in these circumstances was unnecessary and excessive. Therefore it was unconstitutional. If this wasn’t clear before, we should make it clear now.
Not that long ago, we said it was mandatory to decide the constitutional question before determining qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). Then we changed our mind. Pearson v. Callahan, 555 U.S. 223, 236 (2009). But even in backing away from the “mandatory” language of Saucier, we recognized it is “often appropriate” and “often beneficial” to decide the constitutional question before determining immunity, because it “promotes the development of constitutional precedent.” Ibid. Here, at the very least, we need to set a precedent.
Indeed, generally speaking, I believe the Court should avoid granting immunity based on a lack of clarity in the law while simultaneously declining to provide more clarity in the law. We don’t need to return fully to Saucier but a step back in that direction would be wise. The trends following our decision in Pearson are somewhat troubling. See generally Aaron Nielson & Christopher J. Walker, The New Qualified Immunity So. Cal. L.R. (forthcoming, Vol. 87, 2015), available at SSRN: http://ssrn.com/abstract=2676428.
For these reasons, in this case, I would not only declare Mullenix’s conduct unconstitutional but also emphasize that most of the time, before determining whether the defendant has immunity, courts should first decide whether there was a constitutional violation. See Pearson, 555 U.S. at 236. Because the majority declines to do so, I respectfully dissent.