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Supreme Court justices grill plaintiff’s lawyer in suit over police chase that ended in 2 deaths

This image from a video released by the U.S. Supreme Court from a dashboard camera video shows police officers at the scene where a car driven by Donald Rickard on July 17, 2004, crashed. (Associated Press)

The nine justices of the Supreme Court appeared more like an ad hoc jury Tuesday as they considered the case of a wild high-speed chase that ended with police officers shooting and killing the two occupants of a car.

This was not good news for Memphis lawyer Gary K. Smith, who has filed a civil suit against six officers of the police force in West Memphis, Ark., on behalf of the daughter of the dead driver.

Justices usually spend far more time on the legal issues raised by a case. But one justice after another mentioned watching video of the incident taken from cameras mounted in the officers’ cruisers. And that evidence certainly did not make them more amenable to Smith’s argument that the officers had acted unreasonably and in defiance of clearly established law on the use of lethal force after a car chase.

“I’m sorry.  I did see the film,” Justice Sonia Sotomayor told Smith after he contended that the police chase of Donald Rickard had ended before police began shooting.

Justice Samuel A. Alito Jr. described the scene after the chase led from Arkansas across the Mississippi River and ended with Rickard’s car spinning out of control after being bumped by one of the police cars.

Rickard is “eventually surrounded by officers with guns pointed at the driver demanding that he get out, that he put up his hands, stop driving. They are pounding on the windows of the car,” Alito said to Smith. “And the driver begins to drive away. What . . . do reasonable officers do? Maybe what they do is continue the chase indefinitely.”

The justices’ involvement in the details of the case was reminiscent of the last time they viewed video of a high-speed chase. The court even posted that video on the its Web site to illuminate their 2007 opinion. The justices ruled that it was reasonable for an officer to ram the fleeing car to end the chase, even though it left the driver paralyzed.

That decision, Scott v. Harris, came after the Memphis incident occurred.

The Memphis incident began with officers stopping Rickard in West Memphis in July 2004 for a broken headlight. His girlfriend, Kelly Allen, was also in the car; it was determined later that drugs were there as well.

After an officer asked Rickard whether he had been drinking, he took off on Interstate 40 toward the Arkansas-Tennessee border. A wild five-minute chase ensued, at speeds up to 100 mph. Rickard hit a police car and spun around in a parking lot. He collided with the cruiser of Officer Vance Plumhoff, who seconds later fired three shots into the passenger side of Rickard’s vehicle.

Rickard tried to drive away, and 12 more shots were fired, from two other officers. The car crashed into a building. Rickard died of gunshot wounds, Allen of the combination of a shot to the head and the crash.

Smith filed the suit on behalf of Rickard’s daughter.

Law enforcement officials generally have immunity from being sued for their official actions. But the immunity dissolves if it is shown they have violated a statutory or constitutional right and that it was “clearly established” at the time that their actions were violations.

A federal district judge ruled the officers should not receive immunity, and a panel of the U.S. Court of Appeals for the 6th Circuit agreed. The Supreme Court’s job was to decide whether the lower courts had gotten the analysis right.

Michael Mosley, a North Little Rock lawyer representing the officers, said the use of force was proper because the police were in such a dangerous position. But even if that was in question, he said, the appeals court did not do the necessary work to find that the use of lethal force in such a situation was clearly prohibited.

What about the fact that there was a passenger in the car, asked Justice Anthony M. Kennedy.

Mosley responded: “The passenger did not make Mr. Rickard less dangerous.”

The Justice Department supported the officers. Their actions might have been in error, Assistant Solicitor General John F. Bash told the court, but were not clearly at odds with the law at the time.

There is not a single appeals court case “that would have given officers clear notice that the undisputed conduct here would not authorize the use of deadly force,” Bash said.

Smith tried to make the case that the officers had not only used excessive force but had put the public in danger by firing so many shots.

Although he did not mention it, the case did not appear so clear-cut at the time. Three officers were charged in Allen’s death, although the charges were dropped after the officers completed two years of a form of probation, according to newspaper reports.

But Smith faced a hail of hostile questions from the justices.

Kennedy disputed Smith’s contention that Rickard was not trying to start the chase again after bullets were fired. “What do you mean? He is going to the police station?” Kennedy asked sarcastically.

“Well, we don’t know,” Smith replied. “He wasn’t given the opportunity.”

After a lengthy back-and-forth about alternatives the police could have taken, an impatient Justice Antonin Scalia, who was Smith’s toughest questioner, told him none of that mattered.

“We’ve been discussing this as though that’s the question: What should the policeman do?” Scalia said.

“But that’s not the question. The question is, was there clearly established law that made it apparent that this was improper police conduct? That’s the question.”

The case is Plumhoff v. Rickard.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.

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