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Departments : Point of Law

Under the Microscope After an OIS

Here's what to expect after you're involved in a shooting.

January 07, 2016  |  by Devallis Rutledge - Also by this author

Photo: iStockphoto.com
Photo: iStockphoto.com

In Graham v. Connor in 1989, the U.S. Supreme Court said this about after-the-fact evaluations of an officer's use of force: "The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation."

Despite this directive, judges and investigative officials often spend years micro-analyzing an officer's split-second decision, from the calm and safety of their courtrooms and offices. If, God forbid, you have to shoot someone on the job, here are some possible consequences you may find yourself enduring for the next several years, even though you may have been completely justified in your use of deadly force.

Retention of counsel. Depending on the circumstances and jurisdiction, you may qualify for an attorney from your police association or from your employing municipality to advise and represent you, or it may be necessary to retain private counsel yourself. It's often advantageous to consult an attorney as quickly as possible after a shooting, and it's important to look for someone with experience representing officers in administrative, civil, and criminal matters, if available.

Departmental review. Typically, your supervisors, internal affairs division, and chief will review your shooting to see that it was lawful and within policy. In larger departments, there may also be review by a police commission or inspector-general. In many agencies, officers are placed on leave, pending the outcome of these reviews.

Prosecutorial review. Your local prosecutor will generally examine the circumstances of the shooting to decide whether to charge you criminally. Similar evaluations may also be made by the grand jury and the United States Attorney.

Civil suit. These days, a surviving shooting victim or the family of a deceased victim will retain counsel for a civil suit, almost as a matter of course. Any administrative disciplinary proceedings or civil lawsuit will usually be filed (to toll the statute of limitation) and then "trail" behind criminal charges, if any are filed. If prosecution is declined, pending admin and civil steps will then proceed.

Removal. When you're sued in state court under the federal civil rights statute for excessive force (a Fourth Amendment claim), your attorney may decide it's advantageous to "remove" the case to federal court, where you often have several tactical advantages.

Civil discovery. Both sides to a civil suit begin by conducting "discovery." For you, this will mean answering interrogatories and requests for admissions and submitting to depositions. Your attorney will advise and assist you with these steps.

Motion for summary judgment. Once discovery is complete, your attorney may decide to file a motion for summary judgment, arguing that based on the discovery from both sides, there is no triable issue of fact for a jury, and the suit should be dismissed. A common ground for summary judgment is that you should be entitled to "qualified immunity." This is simply an assertion that your use of force was not unconstitutional, or if it was, the law was not clearly established that in the circumstances you confronted, deadly force would violate the Fourth Amendment.

Appeal of adverse rulings. The ruling of a federal district court denying your motion for summary judgment on grounds of qualified immunity can be appealed to the federal court of appeals for your circuit. An appeal stays other proceedings in the case. A three-judge panel of appellate judges decides your appeal on the basis of the lower-court record and the briefs and arguments of the parties. If you lose, you may seek "en banc" review by a larger panel of judges in your circuit. If you still do not prevail, you may petition the U.S. Supreme Court to "grant certiorari" to review your case. Both en banc review and certiorari are discretionary with the courts and are not granted in most cases.

Trial and appeal. Unless your case is dismissed on summary judgment or at other stages or is settled by agreement between the parties, you will proceed to trial in federal district court. If you lose at trial, your attorney can sometimes identify errors made by the trial judge that provide grounds for appeal. Success on appeal will return the case to district court for retrial.

As you can see, many layers of supervisors, lawyers, and judges may spend many years dissecting your split-second decision to use deadly force before they reach final decisions on administrative punishment, civil liability, or criminal prosecution. All this time, you'll be living with the pressures and uncertainties of their second-guessing hanging over your head. These worries can distract you in your daily work, burden your private life, and lead to the loss of your career, attachment of your assets, or even prison.

The second opinion issued by the U.S. Supreme Court in its current term illustrates the typical fallout from a challenged shooting.

Mullenix v. Luna

When Texas officers tried to serve an arrest warrant on Israel Leija, Jr., he sped away, leading officers from several jurisdictions on an 18-minute, 110 mph pursuit. Along the way, Leija twice called dispatch and claimed to be armed, threatening to shoot officers if they didn't back off. There was also information that Leija might be intoxicated.

As spike strips were laid across the highway in Leija's path by another officer, Trooper Mullenix of the Department of Public Safety took a position on a freeway overpass, intending to try to shoot into the engine of Leija's vehicle. Four of six fired rounds struck and killed Leija, whose car then hit the spike strips and rolled two and one-half times. What happened next?

  • The shooting was investigated by the Texas Rangers, who cleared the trooper.
  • The DPS Firearms Discharge Review Board reviewed the shooting, and found no violations.
  • The grand jury investigated and declined to indict.
  • The DPS Inspector General's review found the shooting unjustified.
  • Beatrice Luna, as representative of Leija's estate, filed suit in state court.
  • The case was removed to federal court.
  • The trooper's motion for summary judgment was denied.
  • On appeal, a Fifth Circuit panel voted 2-1 to affirm the district court.
  • On rehearing, the panel again ruled against the trooper.
  • The U.S. Supreme Court reversed the Fifth Circuit and held that Trooper Mullenix was entitled to qualified immunity from suit. Said the court, "When Mullenix fired, he reasonably understood Leija to be a fugitive fleeing arrest, at speeds over 100 miles per hour, who was armed and possibly intoxicated, who had threatened to kill any officer he saw, and who was racing towards another officer's position."

This back-and-forth process lasted more than five years.

Moral: While fear of the potential consequences should never cause you to hesitate to use deadly force when reasonably necessary to protect yourself or others, you should be prepared to continue to defend your decision for years to come.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as special counsel to the Los Angeles County district attorney. He is the author of 12 books, including "Investigative Constitutional Law."


Comments (1)

Displaying 1 - 1 of 1

Mike @ 1/22/2016 9:53 AM

God bless the marksmanship of the Trooper, hitting the criminal four out of six times!!!!! Enough said!!
The criminal was without excuse for his actions, and threatening to kill Police!

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