Cline on the Constitution-The Rules on the Use of Deadly Force by Police Officers.

A fearful nation is in retreat.  We are deep in the appeasement phase.  History shows it is inevitably a mistake.  Closing one’s eyes to looting, vandalism, tearing up traditions and tearing down sacred monuments doesn’t work.  It doesn’t appease the Tyrant nor the mob.  It emboldens, it encourages, it invites further aggression.  A bully does not suddenly realize the irrationality, the unreasonableness of his actions.  A bully enjoys the fear he creates and presses his victims harder against the wall.  A bully pretends sympathy when it suits his purpose, but secretly laughs as his victim squirms in humiliation.

The current acquiescence of America’s elite is futile. From those atop the country’s institutions in academia, business, politics, bureaucracies, media, book publishing, museums, philanthropies, sports, they assent to one outrage after another, blind to the fact that meeting demands are never enough. Princeton cancels Woodrow Wilson; the historically ignorant topple statues of Ulysses Grant, the author of the Star-Spangled Banner, and the great explorer Christopher Columbus; vandals deface the Lincoln memorial and statues of George Washington: anarchists throw ropes over Andrew Jackson, pseudo intellectuals target Thomas Jefferson for cancellation

Is it inevitable that a day will come when there is the realization that the pandering doesn’t work and the attacks may have to be repelled by force?  And, if so, on whom we will call?  The Police are being disarmed.  Senators and Congressmen arrayed in their fine suits sit over cups of tea and debate what holds the Policeman on the street may use in subduing a violent criminal.  In Los Angeles, already a dangerous city, government leaders propose banning police from using even non-lethal weapons like projectiles, batons and tear gas.

And so, assuming the Police answer the call, as they always have, what level of force can be used?  What are the Constitutional boundaries to the use of force?  And because, the more tools you take away, the more desperate circumstances you create for the officer under attack, the ultimate question.  When can deadly force be used?  And is it a Constitutional question?

As I came up through the ranks as a prosecutor, I worked daily with police officers.  First mostly with street officers, on Dui, domestic violence calls, assault and battery, barroom fights, then later mostly with detectives as I moved on to homicides and major sex crimes.  Even though the movies mostly portray detectives as the heroic type, with the patrolman as window dressing, in real life it was usually the man or woman in uniform on the street who is most important to the criminal justice system.  It’s the patrolman or woman who are on the streets on the night shift.  At two or three a.m., they are the first ones dispatched to the scene of a burglary, a rape, a murder. How they handle the scene and the people they encounter is critical. It takes courage and smarts. 

I am still thankful to the first patrolman on the scene of two homicide cases I took to trial, one a shotgun slaying of a young woman by an ex-boyfriend, and the second a planned murder of a man by his spurned wife. In each case, the first officer on the scene calmly and professionally took charge of the witnesses and preserved and documented the evidence I needed in securing the convictions two years later.  Never underestimate the professionalism and dedication of the Cop on the beat. 

As I set about learning my craft, I did a lot of ride-alongs with officers because I wanted to understand what they faced on the streets. 

Was it dangerous out there?  It was.  Of course, I stayed safely in the patrol car or far away from the potential violence, but I watched and the officers never had that option. 

This point bears emphasis.  Unless you have been in a fight, a real hand to hand fight with an hyped up and bulked up adult male or female intent on hurting you and resisting your every effort to subdue him or her, unless you have had to experience the sheer physical difficulty, you are not entitled to make judgements on what force is necessary or what tools should be used.  Law Enforcement has experts who do have the experience and do intensive and continual training on how to do the job with minimal risk to the officer or the person he encounters, but like any battle plan, when your own life and the lives of your partners and innocent bystanders is at risk, you use any means necessary if you want to go home that night.

The leading case on the Constitutional scope of the use of deadly force by a police officer is Tennessee v Garner decided in 1985. 

The framework of the case itself provides insight into how the rules on the use of deadly force developed and their efficacy.  We can look back over the 35 years since Garner was decided and, perhaps, evaluate the wisdom of the decision. The majority decision was written by Justice White, but an interesting dissent was penned by Justice Sandra Day O’Connor and joined in by Chief Justice Burger and the future Chief Justice, Willian Rehnquist. 

That dissenting opinion made some predictions that it is interesting to consider. 

In Tennessee v Garner, A Memphis police officer killed a young man attempting to escape after committing a nighttime burglary of a residence. 

The officer was dispatched to the scene and found the residence had been forcibly entered through a window and saw lights on inside the house. The officer saw a broken window and realized “that something was wrong inside,”. He could not determine whether anyone – either a burglar or a member of the household – was within the residence.  The Officer walked behind the house, and he heard a door slam. He saw Garner run away from the house through the dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. The officer identified himself as a police officer and ordered Garner to halt. Garner paused briefly and then sprang to the top of the fence. Believing that Garner would escape if he climbed over the fence, the officer fired his revolver and mortally wounded the suspected burglar.

Ten dollars and a purse taken from the residence was found on his person. 

The young man’s father sued in Federal Court under section 1983 of the Civil Rights Act discussed in my last post. The purpose of his lawsuit was to seek monetary compensation. 

The defense asserted by the officer was based upon a Tennessee statute which provided that if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, “the officer may use all the necessary means to effect the arrest.” 

Basic to understanding how this case ends up being cognizable in the Federal court system instead of being relegated to State Courts is the word “seizure” in the Fourth Amendment.  The Fourth Amendment protects citizens against “Unreasonable Search and Seizure.” Whenever an officer restrains a person from walking away, the Supreme Court has held that constitutes a seizure.  Arresting a man is, therefore, a seizure of his person.  You could say, getting killed is about as seized as one can get.  

If the use of force in effecting an arrest (seizure) is unreasonable then the person’s Fourth Amendment rights have been violated under color of authority and section 1983 of the Civil Rights act (discussed in my last post) gets one into federal court.

Once the Garner case reached the Supreme Court, it found the Tennessee statute unconstitutional insofar as it authorized the use of deadly force against an apparently unarmed, “nondangerous” fleeing suspect.  Such force, the Court held, may not be used unless necessary to prevent the escape AND the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. 

The Court went to pains to point out the burglar was young, slight, and unarmed and the fact that he broke into an occupied dwelling at night did not “automatically mean he is dangerous.”

It was not enough, the Court held, that the felon was fleeing, the officer must also have believed that he posed a significant threat to the officer or other people.  And the belief must be reasonable viewed in the abstract. If there is no danger the officer cannot bring the escaping felon down with deadly force.   

Consistent with last week’s post the Court found that because the Officer relied in good faith on the Tennessee Statue, he had qualified immunity.  But, as usual, that didn’t let the city off the hook for a monetary recovery.

The Court was presented with arguments that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. 

These arguments were rejected.  The Court said, “Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects.” 

The Court went on to qualify the rule depending on the circumstances, “Where 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. 

The Court among other considerations did acknowledge the Common-Law rule in effect at the time the Four Amendment was adopted which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon. However, it rejected its application after evaluating modern trends in law enforcement techniques.

In the dissent by Justice O”Connor, she took issue with the Court’s rejection of the Common Law rule and the substitution of the Court’s judgement for that of the Tennessee legislature.

She said, “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.”

The Justice argued, the Majority opinion obscured what must be decided in the case. 

“The question we must address is whether the Constitution allows the use of such force to apprehend a suspect who resists arrest by attempting to flee the scene of a nighttime burglary of a residence.”

And the Court emphasized that “In striking this balance here, it is crucial to acknowledge that police use of deadly force to apprehend a fleeing criminal suspect falls within the “rubric of police conduct . . . necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat.” The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. 

And Justice O’Connor rejected the Majoirty’s attempt to minimize the nature of the crime.  “Household burglaries not only represent the illegal entry into a person’s home, but also “pos[e] real risk of serious harm to others.” Victims of a forcible intrusion into their home by a nighttime prowler will find little consolation in the majority’s confident assertion that “burglaries only rarely involve physical violence.” 

And what of the fact that a young man lost is life? 

Justice O’Connor refuses to minimize the fact that a criminal makes choices with consequences.  

“The majority declares that “[t]he suspect’s fundamental interest in his own life need not be elaborated upon.” This blithe assertion hardly provides an adequate substitute for the majority’s failure to acknowledge the distinctive manner in which the suspect’s interest in his life is even exposed to risk. The officer’s use of force resulted because the suspected burglar refused to heed this command and the officer reasonably believed that there was no means short of firing his weapon to apprehend the suspect. Without questioning the importance of a person’s interest in his life, The legitimate interests of the suspect in these circumstances are adequately accommodated by the Tennessee statute: to avoid the use of deadly force and the consequent risk to his life, the suspect need merely obey the valid order to halt.”

Indeed.

For more writings by Phil Cline, visit philcline.com