Page 73 - TPA - A Peace Officer's Guide to Texas Law 2015

We now consider respondents contention that, even if the use of deadly force was permissible, petitioners
acted unreasonably in firing a total of 15 shots. We reject that argument. It stands to reason that, if police officers
are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop
shooting until the threat has ended. Here, during the 10-second span when all the shots were fired, Rickard never
abandoned his attempt to flee. Indeed, even after all the shots had been fired, he managed to drive away and to
continue driving until he crashed. This would be a different case if petitioners had initiated a second round of
shots after an initial round had clearly incapacitated Rickard and had ended any threat of continued flight, or if
Rickard had clearly given himself up. But that is not what happened.

Thus, the question before us is whether petitioners violated Rickards Fourth Amendment rights, not
Allens. If a suit were brought on behalf of Allen under either §1983 or state tort law, the risk to Allen would be
of central concern.

(ed. note: Here the Court refers to the Sacramento Co. v. Lewis case in a footnote. In that case, the passenger
of a fleeing motorcycle was killed when he was run over by a pursuing police vehicle. The Court found that the
th
th
passenger had a cause of action under the 14 Amendment, not the 4 . Further, the Court there held that the
passenger (actually his family) would have to prove the officer intended to harm the passenger before a
Constitutional violation would occur.)

th
Plumhoff v. Rickard, U.S. Supreme Court, No. 12-1117 (May 27 , 2014).

PURSUIT USE OF FORCE DEADLY FORCE

A city officer was attempting to arrest a suspect on a warrant for revocation of a misdemeanor probation.
The suspect fled in his vehicle and a pursuit followed. A DPS trooper down range fired on the pursuing vehicle
with his patrol rifle. At about the same time or a few moments after, the suspect ran over deployed spikes after
which the suspect crashed and died. It was determined that the suspect died from a round fired from the trooper s
rifle. In the subsequent civil rights lawsuit, a summary judgment motion on behalf of the trooper based upon
his qualified immunity defense was denied. The Fifth Circuit upheld the denial of the motion finding that a fact
issue for the jury existed as to whether the suspect presented an immediate threat of serious physical harm, either
to the officer or to others.

While the Court recognized there is no bright line rule to define when deadly force is permissible under
the Fourth Amendment to terminate the chase, it does recognize that, under Supreme Court precedent, deadly
force is permissible when a suspects flight presents an immediate threat of serious physical harm, either to the
officer or to others.

Excerpts from the opinion follow:

Texas DPS Trooper Gabriel Rodriguez was on patrol nearby and took the lead in the pursuit. Around mile
marker 77, Leija entered I27 and continued north, with Rodriguez directly behind him. During the
approximately 18 minutes that the pursuit lasted, Rodriguez followed Leija and captured the pursuit on his video
recorder. The video supports the plaintiffs assertions that although the pursuit proceeded north on 127 at speeds
between 80 and 110 miles per hour, traffic on the dry roadway was light; Leija remained on the paved portion of
the road with his headlights on, did not run any vehicles off the road, did not collide with any vehicles, and did
not cause any collisions; there were no pedestrians or stopped vehicles along the road; and all of the pursuit
occurred in rural areas, without businesses or residences near the interstate, which was divided by a wide center
median.

As the pursuit headed north on I27, other law enforcement units joined. Officer Troy Ducheneaux of
the Canyon Police Department deployed tire spikes underneath the overpass at Cemetery Road and I27. DPS

A Peace Officer’s Guide to Texas Law 66 2015 Edition