The general law of self-defense authorizes law enforcement officers to use deadly force against a suspect only to defend either themselves or others against the imminent use of deadly force, defined as force likely to cause death or serious physical injury. To be lawful, an officer’s belief of the need to use deadly force must be objectively reasonable in light of the facts and circumstances confronting the officer. An officer’s good intentions alone will not make an objectively unreasonable use of force constitutional.
What about using force to apprehend a fleeing suspect? The Supreme Court addressed this issue in 1985 in Tennessee v. Garner. The issue in Garner was whether it was a reasonable seizure for police to shoot and kill Garner, an unarmed, nonviolent teenager simply fleeing from the scene of a burglary, a suspect who did not pose an immediate threat to anyone in the vicinity, including the police. The court held that Garner’s deadly seizure under these nonthreatening circumstances was not objectively reasonable, and the court reinstituted the civil lawsuit brought by his father for allegedly violating his son’s civil rights.
In the court’s opinion, Justice Byron White not only explained the court’s cogent reasoning in coming to its conclusion, but then discussed the circumstances under which the use by an officer of deadly force against a fleeing suspect would presumptively be reasonable. Justice White said, “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.” The simple act of resisting arrest, or of flight to avoid arrest, does not, without more, justify the use of deadly force.
The Garner rule for apprehending a fleeing suspect sets a minimum constitutional standard. Many states and the federal government have tests that are more stringent, such as forbidding the use of firearms except when necessary to prevent death or grievous bodily harm.
In cases involving Fourth Amendment-based allegations of police misconduct, the Supreme Court has admonished judges to evaluate objectively the reasonableness of an officer-in-the-field’s response “from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The court has also ordered judges to make “allowance for the fact that police officers are often forced to make split-second judgments – in circumstances that are tense, uncertain, and rapidly evolving.” The test is not whether “in the peace of a judge’s chambers” it seems that what officers did in the field was unnecessary. “Judges should be cautious about second-guessing a police officer’s assessment, made on the scene, of the danger presented by a particular situation.” These rules recognize the extreme dangers of the profession and allow officers to do their jobs without undue fear of subsequent personal liability, even if they make a mistake – as long as the mistake is objectively reasonable.
Why, you might ask, do so many of these cases never get past the prosecutor’s office? Why do they not all go to a trial jury? The reason is the unique ethical responsibility of a prosecutor not to file charges unless the prosecutor believes that a crime has been committed, that there is competent evidence to prove the charges, and that the evidence is of such a convincing nature to convict the suspect beyond a reasonable doubt. This special ethical responsibility exists because a prosecutor represents the government, and the government has no business prosecuting the innocent. A prosecutor is duty-bound never to make an argument in court that is not supported by the facts and the law. In this respect, a prosecutor at the charging stage is not just an adversary; a prosecutor is also a minister of justice charged with impartially ensuring that the system pursues justice, not just convictions.
Understanding the actual facts of each case is essential to an accurate application of these rules. Each case is different, and it is a serious mistake to rush to judgment one way or the other based upon the melange of inaccurate and misleading information thrown at us while the dust is still settling. As is the case in most circumstances, the conclusions to which one jumps too early leave the jumper on shaky ground.
Stephen S. Trott, of Boise, is a senior circuit judge on the 9th Circuit Court of Appeals. On Sunday, Trott answered the question: What is a grand jury?