Police brutality and use of force issues continue to be an important social issue. Below is an article outlining the history and important case law relating to police use of force.
One of the biggest issues in law enforcement is police use of force. This issue is especially important in situations involving dangerous individuals attempting to evade capture. The question is: what is more important, the rights and the safety of the accused or the potential risk to the public presented by a fleeing felon. Many would agree that it is important to find a balance where police are allowed to use the force necessary to apprehend criminal offenders while still protecting the constitutional rights of the accused. Some argue that the protection of individual rights should be given a higher priority above the apprehension of criminals, while others suggest that stopping a potentially dangerous felon from escaping into the general public is so important that any means necessary to stop the individual should be employed. This debate was at the center of the Tennessee VS. Garner case.
The legal issue at the center of the case was whether a Tennessee statute stating that an officer could use lethal force to stop a fleeing suspect was unconstitutional insofar as it authorized use of deadly force against apparently unarmed, non dangerous individuals.[i] The facts of the case are as follows. At about 10:45 p. m. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a call about a prowler inside a residence.
Upon arriving at the scene the officers saw a woman standing on her porch and gesturing toward the adjacent house. She told them she had heard glass breaking and that someone was breaking in next door. While Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house. He heard a door slam and saw someone run across the backyard. The fleeing suspect, who was appellee-respondent's decedent, Edward Garner, stopped at a 6-foot-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner's face and hands. He saw no sign of a weapon, and, though not certain, was "reasonably sure" and "figured" that Garner was unarmed. App. 41, 56; Record 219.
He thought Garner was 17 or 18 years old and about 5' 5" or 5' 7". While Garner was crouched at the base of the fence, Hymon identified himself as a police officer and called for the suspect to halt as he took a few steps toward him, Garner began to climb over the fence. Convinced that if Garner made it over the fence he would elude capture, Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his body.[ii]
Officer Hymon was acting under the state statute that said that when an officer has made clear his intent to arrest the individual and the suspect flees, the officer may use any means necessary to capture the individual.[iii] In the case of Garner, the incident was reviewed by the firearms review board and presented to a grand jury. After neither took any action, Garner's father took the issue to the federal district court alleging that the shooting violated Garners fourth, fifth, sixth, eighth, and fourteenth amendment rights under the US Constitution.[iv] The District court found that the actions of officer Hymon in accordance with the state statute were constitutional.
The court of appeals then reversed and remanded. The court's reasoning was that the Tennessee statute failed to distinguish between different levels of seriousness in felonies, and thus did not adequately limit the use of deadly force. The Sixth Circuit Court of Appeals found that Hymon was within the scope of qualified immunity because he was acting under good faith in accordance with the state statute; however, the court questioned whether a city was entitled to such qualified immunity. The appeals court reasoned that the killing of a fleeing suspect is a seizure under the fourth amendment and must be reasonable. The Garner case was found to represent an unjustified use of deadly force because to justify such an action, there must be probable cause to believe that the suspect poses a serious threat if he escapes capture. The court stated that "Officers cannot resort to deadly force unless they "have probable cause to believe that the suspect has committed a felony and poses a threat to the safety of the officers or a danger to the community if left at large."[v]
The State of Tennessee, which defending the state statute, appealed to the United States Supreme Court. The city filed a petition for certiorari. The Supreme Court noted probable jurisdiction in the appeal and granted the petition. The question before the Supreme Court was whether the shooting of Garner was a violation of the Fourth amendment and whether the Tennessee statute is constitutional. Prior case law has set precedent that a police officer may arrest a person if he has probable cause to believe that that person committed a crime.[vi]. Petitioners and appellant argue that as long as this requirement is satisfied, it is irrelevant whether deadly force was used to obtain the arrest because common law held that deadly force could be used to stop a fleeing felon the Fourth Amendment has nothing to say about how a seizure is made-only that there must be probable cause to seize the individual.
To determine the constitutionality of a seizure the Supreme Court sought to balance "the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion."[vii] The court described "the balancing of competing interests" as "the key principle of the Fourth Amendment." As such the Supreme Court found that reasonableness depends on not only when a seizure is made, but also how it is carried out. The court states that this balancing process applied in the Garner case indicates that notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The reasoning is that the intrusiveness of a seizure by means of deadly force is unmatched in its severity and the suspect's fundamental interest in his own life must be considered.[viii]
The use of deadly force also is an issue for the individual, and for society, in terms of judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement.[ix] In other words, the interests of preserving due process are in a conflict with the need to efficiently stop and prevent crime. An example supporting the latter is the argument that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. It is suggested that effectiveness in making arrests requires the potential to resort to deadly force, or at least the meaningful threat thereof.[x] The high court was not convinced that the use of deadly force is a sufficiently productive means of accomplishing the goals of law enforcement to justify the killing of nonviolent suspects.
The court's majority went further by saying that "The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts, the presently available evidence does not support this thesis." [xi] They also point out that a majority of police departments in the United States have forbidden the use of deadly force against nonviolent suspects. The reasoning here was that If those charged with the enforcement of the criminal law have themselves abandoned the policy of using of deadly force in arresting non dangerous felons, there is a legitimate question of whether the use of such force is essential to the arrest power in all felony cases. The court was not persuaded to believe that shooting non dangerous fleeing suspects is so vital as to outweigh the suspect's interest in his own life.[xii]
The opinion handed down by the high court said that if the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.[xiii] However, the opinion continues: if the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.[xiv] Therefore, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape. [xv]
Justice O'Connor along with the chief justice and justice Rehnquist dissented. O'Connor writes: "the majority concludes that Tennessee's statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court's reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent."[xvi]
The issues were whether or not the seizure was reasonable and the balancing of public interests with due process allowed for the shooting of a fleeing felon. The dissenting opinion agreed with the Court's assertion that Officer Hymon "seized" Garner by shooting him. Whether that seizure was reasonable and therefore permitted by the Fourth Amendment was the central question. O'Connor cites Solem v. Helm which stated that Household burglaries not only represent the illegal entry into a person's home, but also "pos[e] real risk of serious harm to others."[xvii] The dissenting opinion in Garner argues that a burglary constitutes a serious crime with the threat of physical violence using the following statistics: "[t]hree-fifths of all rapes in the home, three-fifths of all home robberies, and about a third of home aggravated and simple assaults are committed by burglars." Bureau of Justice Statistics Bulletin, Household Burglary 1 (January 1985). During the period 1973-1982, 2.8 million such violent crimes were committed in the course of burglaries.[xviii]
The statistics presented in the dissent paint a good picture of how serious such crimes as burglary are. The majority, however, makes the point that the possibility of a threat is not sufficient cause to seize a person-especially through use of deadly force. The officer must reasonably believe that the person poses a serious threat. What it really comes down to is an issue of officer discretion-policy should not dictate that an officer must effect an arrest using any means necessary-conversely, law enforcement should not be prevented from using necessary force to stop the escape of an individual who is a threat to society. Some argue that what Garner did was effectively take away the discretion of the officer by limiting the use of deadly force to federally mandated standards. The other side says that limiting the use of deadly force is necessary to ensure that police don't abuse their power. The fact is that no state statute or federal law can eliminate injustice; there will always be guilty people who get away and innocent people who are "seized." These issues must be considered on a case-by-case basis so it is difficult to see a clear impact of the Garner case, but the decision will no doubt be debated for years to come.
[i] Sam Biers; lawschool.com; www.4lawschool.com/criminal/garner.htm
[ii]Tennessee V. Garner, 471 U.S 1 (1985)
[iii] Tenn. Code Ann. § 40-7-108 (1982)
[iv]Tennessee V. Garner, 471 U.S 1 (1985)
[v] Id.
[vi] United States v. Watson, 423 U.S. 411 (1976)
[vii]Tennessee V. Garner, 471 U.S 1 (1985)
[viii] Id
[ix] Id
[x]Id
[xi] Id
[xii] Id
[xiii] Id
[xiv] Id
[xv] Id
[xvi] Id
[xvii]Solem v. Helm, 463 U.S. 277, 315 -316 (1983) (BURGER, C. J., dissenting).
[xviii]Tennessee V. Garner, 471 U.S 1 (1985)
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