- The Washington Times - Monday, December 13, 2004


The Supreme Court refused yesterday to clarify when police can use deadly force to stop fleeing criminal suspects, but said a lower court got it wrong in allowing a lawsuit against an officer in Washington state who shot a burglary suspect.

Law enforcement groups and 16 states had encouraged the court to use the officer’s appeal to clarify protection for officers from lawsuits when they injure or kill fleeing felons.

Instead, the court issued an unsigned opinion that found only that the 9th U.S. Circuit Court of Appeals in San Francisco erred in ruling that the officer, Rochelle Brosseau, clearly violated the suspect’s constitutional rights.

Officer Brosseau shot Kenneth Haugen in 1999 as he fled in his Jeep to avoid being arrested on drug charges and for questioning in a burglary in Puyallup, Wash. Mr. Haugen pleaded guilty to fleeing police, but then filed suit claiming a civil rights violation. He suffered a punctured lung in the shooting but recovered.

The 9th Circuit, which is frequently overturned by the Supreme Court, said Officer Brosseau should face a jury.

The Supreme Court’s 8-1 opinion said that “Brosseau’s actions fell in the hazy border between excessive and acceptable force,” but were not clear enough to open her up to a lawsuit.

Three justices — Antonin Scalia, Ruth Bader Ginsburg and Stephen G. Breyer — said the court should have used the case to make clear how courts should handle such lawsuits.

Justice John Paul Stevens wrote in a dissent that the officer was out of bounds in shooting a suspect who had not threatened anyone, and that it should be left to a jury to decide if she should have to pay damages.

Meanwhile, Chief Justice William H. Rehnquist has bowed out of voting in some of the cases he missed in the fall while receiving treatment for thyroid cancer, a court spokeswoman said yesterday.

Chief Justice Rehnquist, who has been absent from the bench for nearly two months, will not vote in cases that were heard in November, unless the remaining eight justices are deadlocked. He plans to participate in the cases argued in December, court spokesman Kathy Arberg said.

Chief Justice Rehnquist, 80, has been working from his home in suburban Virginia while undergoing treatment. Although he has not heard any arguments since October, he is briefed on the cases and the expectation was he would vote on them.

The court has divulged only the barest details of his condition, though it is known that he is undergoing the kind of treatment often used for the most serious type of thyroid cancer.

In other court action yesterday:

• Voted 7-2 to put restrictions on companies that want to voluntarily clean up their polluted land and sue former owners to share the costs. The decision goes against Aviall Services Inc., which in 1981 bought land in Texas.

• Ruled 8-0 that Florida death-row inmate Joe Elton Nixon should not get a new trial, even though his attorney conceded the man’s guilt at trial without his explicit consent.

• Rejected an appeal from Texas death-row inmate Troy Kunkle, whose execution had been stayed twice.

• Ruled 8-0 that police have authority to arrest suspects on charges that later fall apart, so long as officers had a second valid reason for the detention.

• In a 6-3 decision, sidestepped a question on whether states can refuse to pay for appeals by indigent defendants who plead guilty to crimes.

• Let stand a lower ruling that the government can deport former Nazi concentration camp guard Michael Negele, 82, who settled in St. Louis 50 years ago.

• Let stand a ruling that said Penguin Putnam’s book of Dorothy Parker poems did not violate copyright laws.

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