Unformatted text preview: Tennessee v. Garner
Tennessee CRJU E491P, Police Liability
Spring 2011, Mr. Smith Historical Considerations
Historical The Supreme Court’s decision in Tennessee v. Garner was premised, in significant part, on the impact of a long established common law tradition known as the “fleeing felon” rule.
The "fleeing felon" rule, as it existed at the time of the Garner decision, allowed a law enforcement officer to use deadly force, usually inflicted through a firearm, to stop the flight of a fleeing suspect where the suspect, having committed a felony, refused to stop upon the officer's demand. The Common Law Fleeing Felon Rule
"[I]f persons that are pursued by these officers for felony or the just suspicion thereof ... shall not yield themselves to these officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is no felony.“
Hale, “Pleas of the Crown” (1736) Problems with the Rule
Problems At early common law, the killing of a resisting or fleeing felon resulted in no greater consequence than the punishment that was already authorized for the felony of which the individual was suspected. In other words, at common law almost all felonies were punishable by death. At the time of the Garner decision, however, many jurisdictions classified various nondangerous offenses as felonies, with the result that their respective punishments were not the capital punishment envisioned at common law. As an example, in South Carolina in 1985, the crime of "Peeping Tom" was classified as a felony punishable by up to three (3) years imprisonment, but the crime of Assault and Battery of a High and Aggravated Nature (ABHAN) was classified as a misdemeanor, although punishable by up to ten years' imprisonment. The common law rule prohibited the use of deadly force against a fleeing or resisting misdemeanant but today many crimes that were classified as misdemeanors at common law have become designated as felonies and, in many situations, many misdemeanors today involve conduct more physically dangerous than some crimes designated as felonies. (e.g. DUI vs. Forgery)
An additional complication of the common law rule was that it came into existence at a time when weapons were rudimentary and firearms were virtually unknown and could not anticipate advances in weapon technology. Handguns were not carried by police officers until the latter half of the nineteenth century. Accordingly, under the common law rule, deadly force was likely to be inflicted upon the fleeing or resisting felony suspect almost exclusively in a handtohand combat situation during which the personal safety of the arresting officer was very much at risk. The Facts
The Memphis Police Officers Hymon and Wright were dispatched to answer a nighttime “prowler” call. Upon arriving at the scene the officers observed a woman gesturing toward an adjacent house who told them that "someone" was breaking in next door.
Hymon went behind the house where he heard a door slam and saw someone run across the backyard. The suspect was Edward Garner, a 15 year old, who stopped momentarily at a 6’ high chain link fence at the edge of the yard. With the aid of his flashlight, Hymon observed Garner's face and hands, saw no sign of a weapon, and ordered him to “stop.”
Garner refused to obey Hymon’s command and began to climb over the fence. Convinced that Garner would escape, Hymon shot him in the back of the head and Garner died. The Authority for Deadly Force
The At the time he shot Garner, Hymon was acting under the authority of Tennessee Code Annotated section 407
108, and pursuant to Memphis Police Department policy on the use of deadly force.
The Tennessee statute stated that "[i]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.“
The Memphis P.D. policy was somewhat more restrictive than the statute, but still authorized the use of deadly force in cases of burglary. The Section 1983 Action
The Edward’s father brought a section 1983 action seeking damages against Officer Hymon, the Memphis Police Department, its Director, and the Mayor and City of Memphis.
He alleged that the shooting violated Edward’s rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the US Constitution.
The decision analyzed the killing of Edward Garner as a Fourth Amendment “seizure,” however, discounting the other constitutional claims raised in the complaint. Seizures and Deadly Force
Seizures Garner is significant for the Supreme Court’s recognition, prior to Graham v. Connor, that “apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.”
The Supreme Court, relying on its 1975 decision in United States v. BrignoniPonce, stated that “[w]henever an officer restrains the freedom of a person to walk away, he has seized that person.”
The court further noted that seizures are subject to a “balancing test” in order to determine whether they are reasonable under the Fourth Amendment. 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." Based on the facts of the case, the Supreme Court, applying a Fourth Amendment balancing test, concluded as follows: The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.
A police officer may not seize an unarmed, nondangerous suspect by shooting him dead; and The mere fact that a person is a suspected burglar does not, without regard to other circumstances, automatically justify the use of deadly force. The “Revised” Fleeing Felon Rule
The The Garner decision is credited with providing law enforcement a new “revised” fleeing felon rule.
After Garner, law enforcement officers are required to operate under a "two prong" analysis before using deadly force against fleeing suspects.
The prongs of the analysis are as follow: 1) Does the fleeing suspect against whom deadly force usage is considered pose a "significant threat" to members of the public if immediate apprehension is delayed; and, if so
2) Is there a lesser means of stopping the flight of the suspect, besides deadly force, which is reasonably available? The Impact of Garner
The Garner’s balancing test for deadly force applications and its “revised fleeing felon rule” have been used widely in contexts other than those involving firearms; primarily in police pursuits.
While the Garner court borrowed a prior definition of seizure stating that “[w]henever an officer restrains the freedom of a person to walk away,” other Supreme Court cases have taken a wider view of the concept of seizure, although still using the Garner balancing test and “revised fleeing felon rule” in the context of deadly force usage. The Seizure Concept in Other Cases
The In addition to the definition of “seizure” stated in Garner, three additional definitions for determining when officers have seized an individual exist in Supreme Court cases: 1. Whether “the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” (Terry v. Ohio)
2. Whether a “reasonable person would have believed that he was not free to leave” and the person in fact submitted to the assertion of authority. (California v. Hodari D.)
3. Whether there was “a governmental termination of freedom of movement through means intentionally applied.” (Brower v. County of Inyo) The “Temporal Proximity” Problem
The Although the Garner decision provided clear instruction that deadly force may not be used to seize an apparently nondangerous fleeing suspect, the opinion leaves unanswered a crucial question that relates directly to an officer’s evaluation of “dangerousness.”
The question is sometimes referred to as Garner’s “temporal proximity problem” and refers to how far in the past an officer can look to determine whether the suspect poses “present dangerousness.” Given that an officer’s use of force, either deadly or nonlethal, to effect a seizure must be evaluated under Graham v. Connor’s “objective reasonableness” standard, the necessity of using that force requires the consideration of two issues: (1) the reasonable availability of an alternative to the use of force, and (2) the temporal proximity of the threat posed by a suspect.
In Garner, the Supreme Court stated that “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...”
Thus, in a situation involving a suspect who has committed a crime involving a threat of serious physical harm and then fled, would the Garner “rule” permit the use of deadly force to stop his flight even where information might be available that he is not currently armed? ...
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- Spring '11
- deadly force, TENNESSEE V. GARNER, Edward Garner