The legal standard for the use of deadly force by law enforcement

[Colonel Hogan]

This thread is inspired by the recent “rash” of apparently unwarranted fatal shootings by police officers of victims of color and the popular notion that such shootings are the product of systemic racism within our nation’s law enforcement agencies. Further, there seems to be a belief that that same systemic racism infects grand juries and trial juries who fail to hold police officers criminally accountable for what would appear to be these infamous negligent (or worse) homicides.

As it turns out, there may be a far simpler explanation. In many instances, current legal standards throughout individual states allow it.

Three separate areas of law are germane to this issue: federal Constitutional law, state civil and administrative law, and state criminal law. Each of these bodies of law have widely different standards of liability, proof, and legal consequences for violators.

Let’s take Constitutional law first. The most notable existing Supreme Court case law precedent is that of Tennessee v. Garner (1985) and is the easiest to understand:

JUSTICE WHITE delivered the opinion of the Court.

This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is 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.

At about 10:45 p. m. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a "prowler inside call." Upon arriving at the scene, they saw a woman standing on her porch and gesturing toward the adjacent house. She told them she had heard glass breaking and that "they" or "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-feet-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" tall. While Garner was crouched at the base of the fence, Hymon called out "police, halt" and took a few steps toward him. Garner then 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.

In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to Police Department policy. The statute provides that:

"f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest."

https://supreme.justia.com/cases/federal/us/471/1/case.html

Let’s pause here for a moment. Most readers of this forum are probably too young to remember the common police officer admonishment “Halt, or I’ll shoot” popularized in many crime film dramas dating back to the time of George Raft and James Cagney (I don’t either. Jack Webb and Harry Morgan are about as far back as I go). The point is, the Tennessee statute was a fairly commonplace legal standard that allowed the use of any and all force by police officers for the mere purpose of affecting an arrest or preventing escape. And, again, the rejection of this standard by the Supreme Court did not occur until 1985 – 16 years after our “advanced species” had already landed on the moon.

In assessing the constitutionality of the Tennessee statute, the Court did so from the perspective of an "unreasonable" Fourth Amendment “seizure.” Rejoining the Court’s opinion:

A police officer may arrest a person if he has probable cause to believe that person committed a crime. E.g., United States v. Watson, 423 U. S. 411 (1976). Petitioners and appellant argue that, if this requirement is satisfied, the Fourth Amendment has nothing to say about how that seizure is made. This submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of the manner in which a search or seizure is conducted. To determine the constitutionality of a seizure, "[w]e must 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."

****************************

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where 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. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

It is not, however, unconstitutional on its face. 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. Thus, 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, and if, where feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.

And then this telling paragraph in conclusion:

We wish to make clear what our holding means in the context of this case. The complaint has been dismissed as to all the individual defendants. The State is a party only by virtue of 28 U.S.C. 2403(b), and is not subject to liability. The possible liability of the remaining defendants -- the Police Department and the city of Memphis -- hinges on Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), and is left for remand. We hold that the statute is invalid insofar as it purported to give Hymon the authority to act as he did. As for the policy of the Police Department, the absence of any discussion of this issue by the courts below, and the uncertain state of the record, preclude any consideration of its validity.

Excuse me? “The complaint has been dismissed as to all individual defendants?” Why, you might wonder if the killing was found to be unwarranted by the Court, wasn’t officer Hymon held to be criminally liable? Well, apart from him acting “lawfully” and in good faith under the applicable law at the time, there is a far more substantive reason. The Court’s invalidation of the Tennessee statute was only applicable to the deficiency of an “unreasonable” Fourth Amendment “seizure” endorsement BY that statute. It had no effect or application to the criminal or civil liability of officer Hymon whatsoever.

And here’s the kicker. Tennessee v. Garner has no application to criminal or civil liability under state law today, either. We’ll examine state law sanctions of police power in the next post.

 

[EternalFantasies]

I didn't read this whole post.

But, if I recall correctly, this matter was essentially revolving around the judgement of the officer.

With the low quality of officers nowadays, and with the legal consequences all public servants are always afraid of, an poor quality officer chooses what his little mind perceives as great danger... and boum.


I saw videos of a man stopped for a failed tail light, and when he stopped on the side of the road, and ran in the bushes, he was shot in the back!

I saw kids being shot for merely holding and playing with a water gun that is black and looks real...


I don't care what the bounds of the law are. It's wrong.

Many officers need to be replaced, and the 'badge obtaining' process needs to be evolved.

 

[Sean]

New York City police kill more civilians in a month than the entire British police forces have in a century.

 

[Que]

New York City police kill more civilians in a month than the entire British police forces have in a century.

And?


.

 

[Sean]

And?


.

And you might want to take a look at the way your fucked up system works.

 

[Que]

And you might want to take a look at the way your fucked up system works.

Why?




.

 

[Colonel Hogan]

With a few notable exceptions related to discrimination law and the operation of the federal government and security of its officers and employees, the Constitution and federal law has no jurisdiction over citizen-on-citizen violence throughout the United States. That is wholly the province of state law.

So while the use of excessive force by a police officer under the legal standard set by Garner could result in a federal prosecution of an individual police officer for the violation of the victim’s civil rights, prosecutions for assault, negligent or reckless homicide and murder are almost always adjudicated in state courts. Moreover, state civil law is generally permitted to hold officers to a higher standard of liability than many state criminal statutes. Thus, we have not infrequently seen examples of officers relieved from duty or held civilly liable for excessive use of force that did not rise to the level of criminality under state statutes.

In other words, despite the Constitutional standard set by Garner, there is nothing that says states MUST adopt that standard within their civil and criminal statutes. In fact, some have and some haven’t. No better article examines state law in respect to the Garner ruling than this one from the St. Louis University Law Journal published in January of 2016. Anyone truly interested in an objective treatment of the legal facts surrounding state laws with respect to the permissible use of force by state and local police officers should read this article in its entirety. The following excerpt, however, brings the issue into appropriately sharp focus:

Although we provide a survey of all state laws in the Appendix, here our focus is on those states that retain their common law rule (either in their common law or in statutes), and where the rule has not been substantially modified by state court decisions. Easiest to see are the states which have retained the basic common law rule in their statutes. They make no distinction between types of felonies, and do not add any qualification about the present dangerousness of the felon. Most states now have one or the other (or both) qualifications to their statutes. But eight states still have neither, even thirty years after the Garner decision. Alabama says officers may use deadly physical force to “make an arrest for a felony;” Mississippi’s statute allows that homicide is justifiable when committed to apprehend “any person for any felony committed;” Missouri also refers to “a felony;” the New Mexico statute governing homicide by police officers states that homicide is justifiable when “necessarily committed in arresting felons fleeing from justice” without qualifying which felons; Oregon still allows use of deadly force when the crime committed is a felony or attempted felony; Rhode Island also says officers can use deadly force when pursuing someone who merely has committed “a” felony; South Dakota has language virtually identical to New Mexico, although it phrases the rule in terms of when an officer is justified in committing “homicide;” and Washington permits deadly force to arrest a person who has committed (again) simply “a felony.”

By our count, that leaves eleven states post-Garner that have changed their statutory law to more closely resemble the Garner standard. Connecticut’s statute now states deadly force in making an arrest is justified only when the officer believes it is necessary to “defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force,” language which echoes Garner but arguably goes beyond it in the emphasis on the imminent use of deadly physical force, not just force that may result in a serious injury. The Kansas statute also mirrors Garner in requiring that the officer have “probable cause” to believe that the person has committed a felony “involving death or great bodily harm or is attempting to escape by use of a deadly weapon.” The other states that have departed from the common law rule post-Garner follow in this model, adjusting the common law standard in either of these two ways: by requiring an imminent threat or by requiring a belief that the felony committed was “dangerous” in some measure.

*****************************

To many, the persistence of states that have the common law rule is a source of puzzlement, if not outrage. In the aftermath of the Darren Wilson grand jury to not prosecute Wilson for shooting Michael Brown, it was revealed that the Wilson prosecutors themselves were unclear as to the correct standard to use. The Missouri law is the common law standard and it is the one that was initially given to the grand jurors to use as their basis for assessing Wilson’s liability. But later in the proceeding, in fact almost immediately before the jurors were to deliberate, the prosecutors said that the jurors needed to discard the handout they were given that had the Missouri statute on it. When one of the jurors pressed why they were being given a new law, the prosecutors largely shushed them, but appealed to Garner. It was because the Supreme Court had overruled the Missouri rule, they said.

This is incorrect. It is possible that the prosecutors, in an abundance of caution, chose to use the incorrect standard, because it was more stringent: it would be less of a help to Wilson, although it would not be the standard at Wilson’s trial (should there have been one). There is also a tension in the Missouri jury instructions, which do refer to Garner, and take Garner as the established standard. But the statute would again trump the instructions.

Why didn’t Garner make Missouri’s statute unconstitutional, just like Brown made state laws regarding separate but equal schools unconstitutional? Garner involved the application of a standard within a federal civil rights statute, not a in a state criminal prosecution. State law treatises have recognized this point. As the Michigan treatise writes about the People v. Couch case (discussed above): “Garner means that the use of deadly force by the police without regard to dangerousness violates the Fourth Amendment, but, of course, the U.S. Supreme Court cannot change the state substantive criminal law, and this action would therefore not be a state law crime.” The Missouri treatise on criminal law says something similar. The standards for criminal liability in a state criminal prosecution do not have to mimic the standards for a Constitutional tort.

http://www.slu.edu/colleges/law/journal/police-use-of-deadly-force-state-statues-30-years-after-garner/#_ftn10

Several members of this forum have characterized police violence against suspects, especially black and Hispanic suspects, as being “systemic” in nature with its roots originating in racism and inadequate training along with a failure to hold professional malfeasance accountable to departmental environments steeped in “cronyism” if not outright corruption. But to whatever degree those characterizations may be accurate, it seems even more incumbent to address whatever systemic inadequacies exist in state criminal and civil laws in particular.

In so doing, that will take a careful examination of exactly what standard we expect from local policing, including thoughtful answers to the following questions:

If the same standard of “self-defense” is to be applied to the use of deadly force by police officers as would be applied to ordinary citizens, how does that standard possibly impact the protection of the general public faced with an imminent threat that is not directed at the police officer himself? In other words, what if the criminal’s gun is pointed at YOU rather than the responding officer? What if a suspect, presenting no immediate threat to the officer, is nonetheless fleeing the scene of a crime and is armed within a populated area?

What is an officer’s REASONABLE fear for his safety in light of a suspect’s refusal to comply with an officer’s demands to display his hands, drop a weapon or other object, assume a particular posture either standing, kneeling or lying prone, for the purpose of affecting an arrest or merely conducting a safe and secure on-site interrogation? Neither you nor I would be justified in shooting someone simply because he had his hands in his pockets. Are you sure that is a criminal standard you wish to hold to police officers either responding to a crime scene or when a routine traffic stop has “gone bad?”

To hold that police officers are above or justifiably immune from state criminal sanctions related to assault and murder is itself an abomination of law.

To recognize that that those same criminal sanctions, when justly applied to police officers, are going to involve significantly different legal standards than when applied to you and me reflect no such dysfunction.

And if you’re going to solve systemic problems of LAW with respect to law enforcement procedures in the use of lethal force, you’d better be far more properly equipped to parse the legal details regarding the permutations inherent in law enforcement procedure and real-life circumstances than the average person is thusly imbued.

 

[BBthrives]

calling them VICTIMS

is prejudicial

makes your Oh Pee, inoperativehttps://i2.wp.com/bedfordcountysheriff.org/wp-content/uploads/2015/01/fraud_alert.png?resize=300%2C300

 

[BBthrives]

NY is safer then London

http://www.telegraph.co.uk/news/2017/10/20/london-now-dangerous-new-york-crime-stats-suggest/

 

[BBthrives]

Ole "HOGAN" must think we have buncha time to read thru his threads

 

[Colonel Hogan]

I didn't read this whole post.


I don't care what the bounds of the law are.

This is really all you needed to say. And I'm not the least bit surprised.

If moral outrage is the only basis for your standard of "law," then it hardly qualifies as a standard.

It's no more of a standard than that by which the Islamic jihadists behead infidels and our forefathers justified slavery.

Thanks for not (actually and substantively) participating.

 

[BBthrives]

Ole "HOGAN" must think we have buncha time to read thru his threads

http://www.teamworkandleadership.com/wp-content/uploads/2012/08/wasting-time-at-work-1.jpg

 

[Colonel Hogan]

Ole "HOGAN" must think we have buncha time to read thru his threads

I'm quite certain you have the time, if based on nothing more than the sheer quantity of the mindless drivel you post.

I'm far less certain of your ability.

Oh, "welp."

 

[jaF0]

This thread is inspired by the recent “rash” of apparently unwarranted fatal shootings by police officers of victims of color and the popular notion that such shootings are the product of systemic racism within our nation’s law enforcement agencies. Further, ...

STOP (BANG, BANG, BANG) or I'll shoot!!!!

 

[BBthrives]

I'm quite certain you have the time, if based on nothing more than the sheer quantity of the mindless drivel you post.

I'm far less certain of your ability.

Oh, "welp."

http://s2.quickmeme.com/img/99/9920965f95920e47dd8705fa22a4ea283e89dea9a4ed180bdf0a4825d48f20d9.jpg

 

[jaF0]

This is really all you needed to say. And I'm not the least bit surprised.

Do you remember the episode where Friday was in a laundromat and fired on a gunman? He spent a full day (as I recall) trying to locate the slug because department policy required EACH and EVERY round to be accounted for. If that were to apply in real life today, how much time would officers be out there looking for the 20 or 30 rounds they fired at a fleeing subject as often happens?

 

[BBthrives]

To which "HOGAN" will respond

IF he had a sense of humor

http://img.sparknotes.com/content/sparklife/sparktalk/2013/auntie050613twitter_LargeWide.png

 

[jaF0]

To which "HOGAN" will respond

... STFU BB ....

 

[BBthrives]

To which "HOGAN" will respond

IF he had a sense of humor

http://img.sparknotes.com/content/sparklife/sparktalk/2013/auntie050613twitter_LargeWide.png

but he doesnt'

so he frantically AXES.....https://www.argyll-bute.gov.uk/sites/default/files/what_should_i_say.png

 

[Que]

Do you remember the episode where Friday was in a laundromat and fired on a gunman? He spent a full day (as I recall) trying to locate the slug because department policy required EACH and EVERY round to be accounted for. If that were to apply in real life today, how much time would officers be out there looking for the 20 or 30 rounds they fired at a fleeing subject as often happens?

Barney Fife kept his round (singular) in his shirt pocket so as not to lose it.

 

[Colonel Hogan]

STOP (BANG, BANG, BANG) or I'll shoot!!!!

That was pretty funny.

I wish BB actually had wit.

 

[BBthrives]

^^^^Jack http://i.imgur.com/V68qE9l.jpg

 

[jaF0]

That was pretty funny.

I wish BB actually had wit.

Or as Sly once said 'STOP or my Mom will shoot!'

 

[RobDownSouth]

I've always been of the opinion that an officer who discharges his weapon for any reason should be put on a minimum of one month's unpaid leave.

My rationale: If he or she feels as if his/her life was in mortal danger, he or she should be willing to go without pay for a month since his/her firearm saved his/her life.

 

[EternalFantasies]

This is really all you needed to say. And I'm not the least bit surprised.

If moral outrage is the only basis for your standard of "law," then it hardly qualifies as a standard.

It's no more of a standard than that by which the Islamic jihadists behead infidels and our forefathers justified slavery.

Thanks for not (actually and substantively) participating.

My post contained more than that.


The gist of what it came down to in these court cases - and to save me from having to read ALL your threads in their totality - is that it boils down to what the officer judged as threatening to his life and/or others.


And since this is where the law stands, no I do not care about it.

The other items in my post describe how poor quality officers are nowadays abundant (due to hiring procedures and training etc - you outta read more ) and are simply abusing this to shoot too many undeserving people.

I've participated quite well, if you take the time to understand what you read, and to try not to be an actual nor a substantive ASS.