Plumhoff v. Rickard

• Date: 01 June 2015
• Author: Darrell L. Ross
• DOI: 10.1177/0734016814543353
• Published date: 01 June 2015
• Subject Matter: Recent Legal Developments

Recent Legal Developments
Criminal Justice Review
2015, Vol. 40(2) 244-257
Plumhoff v. Rickard: Clarifying
ª 2014 Georgia State University
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the Use of Deadly Force
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DOI: 10.1177/0734016814543353
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and Qualified Immunity
Darrell L. Ross1
Abstract
In a 9-0 decision, the U.S. Supreme Court addressed whether police officers were justified in using
deadly force in response to a dangerous motorist who attempted to flee the officers’ arrest and
whether qualified immunity should have been granted. The Court concluded that the officers used
objectively reasonable force consistent with the Fourth Amendment and granted them qualified
immunity. This case analysis provides an assessment of the Court’s decision, a review of prior use
of force case decisions, and the requirements for awarding qualified immunity. Implications of the
case decision are discussed.
Keywords
deadly force, objective reasonableness, qualified immunity, liability, Fourth Amendment
Introduction
The daily work of police officers serving in the capacity of patrol frequently places them on the front
line of harm and in vulnerable situations, as they contact citizens in varying environments. These
contacts often require an officer to make split-second decisions in response to the unpredictable and
dangerous actions displayed by the individual contacted. Whether the contact is for a felony stop or a
misdemeanor, the suspect may violently resist the officer’s attempt of control or actively flee from
the officer, requiring the officer to stop the threat to protect the officers and the public. Stopping the
threat of violence is a paramount objective of the use of force, but the officer must use objectively
reasonable force (McGuinness, 2009; Graham v. Conner, 1989).
The nature of the contacts between the police and the public has been reported every 3 years by
the Department of Justice from 1999 to 2008 (Eith & Durose, 2011). During this period, the police
on average contacted about 44 million citizens aged 16 years or older. The primary circumstance for
the contact was during a traffic stop (44%). Conducting a traffic stop on a busy interstate highway or
an isolated rural roadway can be a dangerous proposition and places an officer at an elevated risk of
harm. In a majority of traffic stops, the identities of the motorist and passengers of the vehicle,
1 Valdosta State University, Valdosta, GA, USA
Corresponding Author:
Darrell L. Ross, Valdosta State University, 1500 N Patterson St, Valdosta, GA 31698, USA.
Email: dross@valdosta.edu

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Ross
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mental state, motivations, and backgrounds are unknown. Although many motorists comply with an
officer’s instructions during a traffic stop, others may physically resist and attack the officer, shoot at
the officer with a firearm, use the vehicle as a weapon and purposely drive at or strike the officer,
and/or flee from the officer, resulting in a high-speed pursuit further elevating the risk of danger for
the officers and other motorists (International Association of Chiefs of Police, 2012). Eith and Dur-
ose (2011) found that 1.5% of all contacts between the police and the public, the police either threat-
ened to use or used force in response to the citizen’s behaviors. Of the traffic-related contacts, 40%
resulted in the police using or threatening to use a level of force.
Conducting a traffic stop is among the most volatile and dangerous functions a patrol officer may
perform. The Federal Bureau of Investigation (2013) reported that from 2003 to 2012, 18% of all line
of duty deaths of police officers and 10% of officer assaults resulted from a traffic pursuit/stop. In
response to the threatening behaviors of a motorist during a traffic stop, an officer may be required to
use deadly force to protect himself or herself, other officers, and the public in general. In a split sec-
ond, an officer may be required to make a decision to use deadly force in varying environmental
conditions, under time pressures, reduced reaction time, under uncertain circumstances, unpredict-
able weather conditions, and other circumstance limitations. The rapidly evolving situation of an
actively resisting individual forces an officer to quickly and without deliberation make an instanta-
neous decision to shoot or not to shoot. Forming the perception of danger and making the decision to
shoot under time pressures will be assessed in a nonstressful environment for many years to deter-
mine the justification of the decision. The involved officer will be required to demonstrate that the
decision to shoot was objectively reasonable under the totality of the circumstances.
The U.S. Supreme Court has twice opined that flight of a suspect by vehicle poses particularly
dangerous circumstances for officers and the public, thereby justifying the use of deadly force
(Brosseau v. Haugen, 2004; Scott v. Harris, 2007). The Court has held that a car can be used as a
deadly weapon and that using deadly force to stop a car from possibly injuring others, including
an officer, was objectively reasonable. Further, the Court has recognized that vehicles are dangerous
instrumentalities and has opined that when offenders use motor vehicles as their means of escape,
they create serious potential risks of physical injury and a lethal threat to others (Sykes v. United
States, 2011). The risk of significant injury or death is increased, as officers are out of their vehicle
when dealing with a stopped motorist. In this position, an officer is extremely vulnerable, and the
ability to cognitively process a decision to react and to protect his own or another’s safety can be
severely compromised. A vehicle may quickly turn, back up, or be driven directly at an officer,
requiring split-second decision making.
Lower federal courts have consistently ruled since 1989 that using deadly force against a vehicle
which posed a risk of harm to the officer or others as justifiable and reasonable force. Ross (2013)
researched 1,100 (20%) of 5,534 published §1983 litigated police deadly force decisions by the
courts from 1989 to 2012. He found that the police were awarded summary judgment in 84% of these
cases. Of these cases examined, 30% accounted for incidents in which the motorist drove the vehicle
at the officer or fled, and in all of the decisions, the officers were granted qualified immunity or pre-
vailed at trial. The officer’s use of deadly force was measured against the facts at the time the force
was used as opposed to what may have been done or what was possible by way of hindsight. The
courts have generally concluded that a car can be used as a deadly weapon and have awarded qual-
ified immunity when officers formed the perception and articulated a reasonable belief that they
were in immediate fear for their life when they fired in self-defense, or defense of another, and pre-
vented the motorist’s escape as it presented a threat to others.
Despite prior decisions by the Court ruling that vehicles can be used as a deadly weapon and can
pose a threat of harm to officers and others, and lower courts consistently awarding qualified immu-
nity to officers when they were forced to use deadly force, there should be little doubt that qualified
immunity shields officers from litigation when using deadly force in self-defense in response to a

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Criminal Justice Review 40(2)
fleeing motorist. Yet, the Court granted certiorari in Plumhoff v. Rickard (2014) to further clarify the
factors needed to consider the reasonableness for using deadly force when faced with a fleeing
motorist and how to assess the factors needed to award or deny qualified immunity in such cases.
Questions have emerged as to how to apply the appropriate factors determining reasonable force and
qualified immunity in fleeing motorist incidents, and lower courts need guidance in how to apply the
rules at the summary judgment phase when officers invoke qualified immunity from Fourth Amend-
ment use of force claims. The Court has established in Brower v. County of Inyo (1989) that the use
of force during an arrest is considered a seizure in accordance with the Fourth Amendment. In claims
of excessive the question before the Court is whether the officer’s conduct was reasonable in light of
the circumstances which confronted the officer. This assessment provides an overview of previous
Court’s decisions on use of force and qualified immunity when assessing claims of excessive force, a
review of the facts in Plumhoff, and an analysis and the implications of the Court’s decision.
Prior Decisions on the Use of Force
Section 1983 of Title 42 of the United States Code (U.S.C.) provides a cause of action against state
officials for deprivations of constitutional rights under color of state law. Prior to the shooting inci-
dent in Plumhoff, the U.S. Supreme Court has established case precedent in guiding police officers in
their use of force in accordance with the Fourth Amendment (Tennessee v. Garner, 1985; Graham v.
Connor, 1989). In their decision in Garner, the Court explained that if an officer has probable cause
to believe that a suspect poses a threat of serious physical harm, either to the officer or to others, it is
not unconstitutionally unreasonable to prevent escape by using deadly force. In Garner, a Memphis
police officer responded to a call of a prowler. On scene, the officer observed someone run across the
backyard, commanded him to stop, and observed that the person did not have a weapon. As the youth
climbed a fence to...