Judge rules couple shot dead by police can’t file lawsuit

A wild chase in 2004 that started in West Memphis, Ark. and continued at 100-mile-per-hour speeds on a highway and ended in a hail of 15 bullets in a parking lot in Memphis, Tenn. The shots killed the driver, Donald Rickard, and his passenger, Kelly Allen.  http://www.nytimes.com/2014/03/05/us/justices-seem-united-on-key-argument-in-fatal-police-chase.html?ref=us
The main legal question for the justices seemed both easy and limited, as the driver’s family had to prove not only that the officers’ conduct was unlawful but also that this was “clearly established” as a matter of law at the time of the shooting. Whatever might be said on the first point, the second one seemed a lost cause for the plaintiffs.
Their lawyer, Gary K. Smith, made an unusual presentation, relying heavily on factual assertions more common at trials than at appellate arguments. Several justices responded with their own understandings of the facts, some of them based on having viewed video recorded from dashboard cameras on police vehicles.
Mr. Smith said the officers had choices short of firing into the car, especially given the presence of a passenger. “You can shoot the tires,” he said.
Justice Stephen G. Breyer said the idea had also occurred to him “when I look at the film.” He said that it was “a very good question” but that he did not know the answer. That meant, he said, that the law on this point was not “clearly established.”
Mr. Smith said the presence of the passenger should have made the officers hesitate. Justice Antonin Scalia responded that Mr. Smith was in no position to press that point, as it was Mr. Rickard who had endangered her, adding that she did not try to flee when the car briefly stopped. “Boy, I would get out of that car so fast,” Justice Scalia said.
The case was in a way a sequel to the court’s 2007 decision in Scott v. Harris, in which the court ruled against a Georgia man who was paralyzed when his car was rammed by the police during a chase.
An appeals court nevertheless allowed Tuesday’s case to move forward, saying that “the devil is in the details.”
“Although the police in Scott used a maneuver to stop the fleeing car that might very well cause a crash and injury,” Judge Ralph B. Guy wrote for a unanimous three-judge panel, “the police here fired 15 shots at close range, all but two of which apparently hit the subjects and 12 of which hit the driver.”
Michael Mosley, a lawyer for the police officers, said his clients should win even if the Supreme Court agreed with that reasoning. The Scott decision was issued in 2007 and so could not have created “clearly established” law at the time of the 2004 chase, he said.
Chief Justice John G. Roberts Jr. asked Mr. Mosley for an example of a high-speed chase that would not justify the use of deadly force by the police.
“I hate to use television as an example,” Mr. Mosley responded, “but perhaps the way the white Ford Bronco fled in the early ’90s that everybody saw on TV. That seemed to be relatively nondangerous.”
He was referring to the 1994 chase of O. J. Simpson in Southern California, which riveted the nation notwithstanding its sedate pace.
John F. Bash, a lawyer for the federal government arguing in support of the police officers, responded to a similar question from Justice Sonia Sotomayor. He said that “the use of deadly force is justified to protect injury to the public or to the officers.” Once escape is impossible, he said, such force is impermissible.
“It’s not punishment for having engaged in a high-speed pursuit,” Mr. Bash said. “It’s to protect people on the road.

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