Notes

When confronting a claim of qualified immunity, a court asks two questions. First, the court considers whether the officer in fact violated a constitutional right. Second, the court asks whether the contours of the right were "sufficiently clear that a reasonable official would [have understood] that what he is doing violates that right." This Court has rejected the idea that "an official action is protected by qualified immunity unless the very action in question has previously been held unlawful." Instead, the crux of the qualified immunity test is whether officers have "fair notice" that they are acting unconstitutionally. Respondents here allege that Mullenix violated the Fourth Amendment's prohibition on unreasonable seizures by using deadly force to apprehend Leija.

This Court's precedents clearly establish that the Fourth Amendment is violated unless the " 'governmental interests' " in effectuating a particular kind of seizure outweigh the " 'nature and quality of the intrusion on the individual's Fourth Amendment interests. Here, then, the clearly established legal question--the question a reasonable officer would have asked--is whether, under all the circumstances as known to Mullenix, there was a governmental interest in shooting at the car rather than waiting for it to run over spike strips.

The majority does not point to any such interest here. It claims that Mullenix's goal was not merely to stop the car, but to stop the car "in a manner that avoided the risks" of relying on spike strips. Ante, at 9. But there is no evidence in the record that shooting at Leija's engine block would stop the car in such a manner.

The majority first suggests that Mullenix did not wait for the results of the spikes, as his superior advised, because of his concern for the officers manning the strips. But Leija was going to come upon those officers whether or not Mullenix's shooting tactic was successful: Mullenix took his shot when Leija was between 25 and 30 yards away from the spike strip, traveling at 85 miles per hour. Even if his shots hit Leija's engine block, the car would not have stopped instantly. Mullenix would have bought the officers he was trying to protect--officers who had been trained to take defensive positions--less than three-quarters of a second over waiting for the spike strips. And whatever threat Leija posed after his car was stopped existed whether the car was stopped by a shot to the engine block or by the spike strips.

Nor was there any evidence that shooting at the car was more reliable than the spike strips. The majority notes that spike strips are fallible.