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Shooting the Fourth Amendment on Cemetery Road

— November 16, 2015

On Monday, November 9th, the U.S. Supreme Court issued a ruling that in the words of one of the justices herself “renders the protections of the Fourth Amendment hollow.” The case in question, Mullenix v. Luna, involves the 2010 killing of Israel Leija, Jr., by Texas Department of Public Safety officer Chadrin Mullenix. Fleeing officers with a warrant for his arrest, Leija eventually led the DPS on a freeway chase at reported speeds of between 85 and 110 miles per hour. As he approached Cemetery Road, where officers had positioned a spike strip to disable his car, Leija was shot four times with a rifle by Mullenix, who had climbed onto the overpass with a plan that he would later describe as “proactive.” Mullenix was not acting on orders and is alleged to have acted against orders in shooting Leija.

The landmark case Tennessee v. Garner (1985) ruled that police in pursuit of an “unarmed, nondangerous fleeing suspect” may not use deadly force absent a “significant threat of death or serious physical injury to the officer or others.” Leija, whose driving was claimed in a lower court to have been “relatively controlled,” posed no imminent threat to any of the officers on the scene. Mullenix claimed his plan was to shoot the engine block, but of the six shots he fired none hit either the radiator or hood of Leija’s car. Four shots hit Leija’s upper body. Nevertheless, the Supreme Court granted Mullenix’s claim to the defense of “qualified immunity” and dismissed the case.

“Qualified immunity” is a defense available to government officials in civil rights cases where an official can claim not to have violated a “clearly established law.” When a judge grants qualified immunity, the case is thrown out without ever going to a jury. The Mullenix court has tweaked this defense by ruling that a “reasonable person” standard be applied to the official’s actions. Consider: A case alleging a violation of civil or Constitutional rights necessarily involves a challenge to the claim of violation. If the defendant’s challenge goes to the question of the right itself, a judge disposed to find in favor of public officials, such as police officers, is able to find a lack of “clearly established law,” dismiss the case and circumvent the democratic process of a jury trial. Only Justice Sonia Sotomayor was willing to condemn the reactionary illogic of this ruling with a dissenting opinion. Justice Anotnin Scalia, however—in yet another mind-boggling display of absurdity—wrote in a concurring opinion that he disagreed with the Court’s finding of a use of deadly force on the part of Mullenix. After all, Scalia reasons, he was shooting at the engine block.

The ramifications of the Mullenix case are chillingly clear, as Sotomayor has pointed out in her remark about the Fourth Amendment. In a country where growing popular unrest is met with rampant police brutality and murder, we have seen time and again that district attorneys and our Byzantine grand juries are loathe to bring criminal charges against police officers. Now the Supreme Court has slammed the door on civil suits as well. And if four rifle bullets in a man’s torso pose a point of law too thorny for a trained police officer to be expected to comprehend, how will judges now treat issues of electronic surveillance?

For fourteen years our rights have been pulled away like empty boats on a receding tide, and we had better recognize just how vulnerable we are out on these salt flats before the tide comes back for us. Our corporate rulers have lured us down here with their promises of security. But our only security lies in our rights. It will be a long hard climb back to our high ground, but we can make a start by taking back the overpass on Cemetery Road.

Sources: Mullenix v. Leija

Tennessee v. Garner

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