Supreme Court of the United States
Decided March 27, 1985
Justice O’Connor, Dissenting
Tennessee v. Garner, 471 U.S. 1 (1985), is a civil case in which the Supreme Court of the United States held that, under the Fourth Amendment, when a law enforcement officer is pursuing a fleeing suspect, the officer may not use deadly force to prevent escape unless "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." It was found that use of deadly force to prevent escape is an unreasonable seizure under the Fourth Amendment, in the absence of probable cause that the fleeing suspect posed a physical danger.:563-7
|Topic: Criminal Procedure*||Court vote: 6–3|
Click any Justice for detailJoining O'Connor opinion: Chief Justice BURGER Justice REHNQUIST
|Holding: “Law enforcement officers pursuing an unarmed suspect may use deadly force to prevent escape only if 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.”|
|Citation: 471 U.S. 1||Docket: 83–1035||Audio: Listen to this case's oral arguments at Oyez|
* As categorized by the Washington University Law Supreme Court Database
DISCLAIMER: Only United States Reports are legally valid sources for Supreme Court opinions. The text below is provided for ease of access only. If you need to cite the exact text of this opinion or if you would like to view the opinions of the other Justices in this case, please view the original United States Report at the Library of Congress or Justia. The Sandra Day O'Connor Institute does not in any way represent, warrant, or guarantee that the text below is accurate."
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.
The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the majority's balancing of the interests of the suspect and the public interest in effective law enforcement. Ante at 8. Notwithstanding the venerable common law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante at 14, 16-17, 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.
The facts below warrant brief review because they highlight the difficult, split-second decisions police officers must make in these circumstances. Memphis Police Officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was in progress at a private residence. When the officers arrived at the scene, the caller said that "they" were breaking into the house next door. App. in No. 81-5605 (CA6), p. 207. The officers found the residence had been forcibly entered through a window, and saw lights on inside the house. Officer Hymon testified that, when he saw the broken window, he realized "that something was wrong inside," id. at 656, but that he could not determine whether anyone -either a burglar or a member of the household -was within the residence. Id. at 209. As Officer Hymon walked behind the house, he heard a door slam. He saw Edward Eugene Garner run away from the house through the dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. Officer Hymon thought Garner was an adult, and was unsure whether Garner was armed because Hymon "had no idea what was in the hand [that he could not see] or what he might have had on his person." Id. at 658-659. In fact, Garner was 15 years old and unarmed. Hymon also did not know whether accomplices remained inside the house. Id. at 657. 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, Hymon fired his revolver and mortally wounded the suspected burglar.
Appellee-respondent, the deceased's father, filed a 42 U.S.C. 1983 action in federal court against Hymon, the city of Memphis, and other defendants, for asserted violations of Garner's constitutional rights. The District Court for the Western District of Tennessee held that Officer Hymon's actions were justified by a Tennessee statute that authorizes a police officer to "use all the necessary means to effect the arrest," if "after notice of the intention to arrest the defendant, he either flee or forcibly resist." Tenn.Code Ann. 40-7-108 (1982). As construed by the Tennessee courts, this statute allows the use of deadly force only if a police officer has probable cause to believe that a person has committed a felony, the officer warns the person that he intends to arrest him, and the officer reasonably believes that no means less than such force will prevent the escape. See, e.g., Johnson v. State, 173 Tenn. 134, 114 S.W.2d (1938). The District Court held that the Tennessee statute is constitutional, and that Hymon's actions, as authorized by that statute, did not violate Garner's constitutional rights. The Court of Appeals for the Sixth Circuit reversed on the grounds that the Tennessee statute "authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape" violates the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. 710 F.2d 240, 244 (1983).
The Court affirms on the ground that application of the Tennessee statute to authorize Officer Hymon's use of deadly force constituted an unreasonable seizure in violation of the Fourth Amendment. The precise issue before the Court deserves emphasis, because both the decision below and the majority obscure what must be decided in this case. The issue is not the constitutional validity of the Tennessee statute on its face or as applied to some hypothetical set of facts. Instead, the issue is whether the use of deadly force by Officer Hymon under the circumstances of this case violated Garner's constitutional rights. Thus, the majority's assertion that a police officer who has probable cause to seize a suspect "may not always do so by killing him," ante at 9, is unexceptionable, but also of little relevance to the question presented here. The same is true of the rhetorically stirring statement that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable." Ante at 11. 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.
For purposes of Fourth Amendment analysis, I agree with the Court that Officer Hymon "seized" Gamer by shooting him. Whether that seizure was reasonable, and therefore permitted by the Fourth Amendment, requires a careful balancing of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual. United States v. Place, 462 U. S. 696, 703 (1983). 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." Terry v. Ohio, 392 U. S. 1, 20 (1968). The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. Moreover, I am far more reluctant than is the Court to conclude that the Fourth Amendment proscribes a police practice that was accepted at the time of the adoption of the Bill of Rights and has continued to receive the support of many state legislatures. Although the Court has recognized that the requirements of the Fourth Amendment must respond to the reality of social and technological change, fidelity to the notion of constitutional -as opposed to purely judicial -limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when the Fourth Amendment was adopted are now constitutionally impermissible. See, e.g., United States v. Watson, 423 U. S. 411, 416 -421 (1976); Carroll v. United States, 267 U. S. 132, 149 -153 (1925). Cf. United States v. Villamonte-Marquez, 462 U. S. 579, 585 (1983) (noting "impressive historical pedigree" of statute challenged under Fourth Amendment).
The public interest involved in the use of deadly force as a last resort to apprehend a fleeing burglary suspect relates primarily to the serious 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." Solem v. Helm, 463 U. S. 277, 315 -316 (1983) (BURGER, C.J., dissenting). According to recent Department of Justice 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. Ibid. 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." Ante at 21. Moreover, even if a particular burglary, when viewed in retrospect, does not involve physical harm to others, the "harsh potentialities for violence" inherent in the forced entry into a home preclude characterization of the crime as "innocuous, inconsequential, minor, or nonviolent.'" Solem v. Helm, supra, at 316 (BURGER, C.J., dissenting). See also Restatement of Torts 131, Comment g (1934) (burglary is among felonies that normally cause or threaten death or serious bodily harm); R. Perkins & R. Boyce, Criminal Law 1110 (3d ed.1982) (burglary is dangerous felony that creates unreasonable risk of great personal harm).
Because burglary is a serious and dangerous felony, the public interest in the prevention and detection of the crime is of compelling importance. Where a police officer has probable cause to arrest a suspected burglar, the use of deadly force as a last resort might well be the only means of apprehending the suspect. With respect to a particular burglary, subsequent investigation simply cannot represent a substitute for immediate apprehension of the criminal suspect at the scene. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Challenge of Crime in a Free Society 97 (1967). Indeed, the Captain of the Memphis Police Department testified that, in his city, if apprehension is not immediate, it is likely that the suspect will not be caught. App. in No. 81-5605 (CA6), p. 334. Although some law enforcement agencies may choose to assume the risk that a criminal will remain at large, the Tennessee statute reflects a legislative determination that the use of deadly force in prescribed circumstances will serve generally to protect the public. Such statutes assist the police in apprehending suspected perpetrators of serious crimes and provide notice that a lawful police order to stop and submit to arrest may not be ignored with impunity. See, e.g., Wiley v. Memphis Police Department, 548 F.2d 1247, 1252-1253 (CA6), cert. denied, 434 U.S. 822 (1977); Jones v. Marshall, 528 F.2d 132, 142 (CA2 1975).
The Court unconvincingly dismisses the general deterrence effects by stating that "the presently available evidence does not support [the] thesis" that the threat of force discourages escape, and that "there is a substantial basis for doubting that the use of such force is an essential attribute to the arrest power in all felony cases." Ante at 10, 11. There is no question that the effectiveness of police use of deadly force is arguable, and that many States or individual police departments have decided not to authorize it in circumstances similar to those presented here. But it should go without saying that the effectiveness or popularity of a particular police practice does not determine its constitutionality. Cf. Spaziano v. Florida, 468 U. S. 447, 464 (1984) ("The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws"). Moreover, the fact that police conduct pursuant to a state statute is challenged on constitutional grounds does not impose a burden on the State to produce social science statistics or to dispel any possible doubts about the necessity of the conduct. This observation, I believe, has particular force where the challenged practice both predates enactment of the Bill of Rights and continues to be accepted by a substantial number of the States.
Against the strong public interests justifying the conduct at issue here must be weighed the individual interests implicated in the use of deadly force by police officers. The majority declares that "[t]he suspect's fundamental interest in his own life need not be elaborated upon." Ante at 9. 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. For purposes of this case, we must recall that the police officer, in the course of investigating a nighttime burglary, had reasonable cause to arrest the suspect and ordered him to halt. 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, I do not think this interest encompasses a right to flee unimpeded from the scene of a burglary. Cf. Payton v. New York, 445 U. S. 573, 617, n. 14 (1980) (WHITE, J., dissenting) ("[T]he policeman's hands should not be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement personnel"). 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.
A proper balancing of the interests involved suggests that use of deadly force as a last resort to apprehend a criminal suspect fleeing from the scene of a nighttime burglary is not unreasonable within the meaning of the Fourth Amendment. Admittedly, the events giving rise to this case are, in retrospect, deeply regrettable. No one can view the death of an unarmed and apparently nonviolent 15-year-old without sorrow, much less disapproval. Nonetheless, the reasonableness of Officer Hymon's conduct for purposes of the Fourth Amendment cannot be evaluated by what later appears to have been a preferable course of police action. The officer pursued a suspect in the darkened backyard of a house that from all indications had just been burglarized. The police officer was not certain whether the suspect was alone or unarmed; nor did he know what had transpired inside the house. He ordered the suspect to halt, and when the suspect refused to obey and attempted to flee into the night, the officer fired his weapon to prevent escape. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate nature of this particular case; instead, the question is whether it is constitutionally impermissible for police officers, as a last resort, to shoot a burglary suspect fleeing the scene of the crime.
Because I reject the Fourth Amendment reasoning of the majority and the Court of Appeals, I briefly note that no other constitutional provision supports the decision below. In addition to his Fourth Amendment claim, appellee-respondent also alleged violations of due process, the Sixth Amendment right to trial by jury, and the Eighth Amendment proscription of cruel and unusual punishment. These arguments were rejected by the District Court and, except for the due process claim, not addressed by the Court of Appeals. With respect to due process, the Court of Appeals reasoned that statutes affecting the fundamental interest in life must be "narrowly drawn to express only the legitimate state interests at stake." 710 F.2d at 245. The Court of Appeals concluded that a statute allowing police use of deadly force is narrowly drawn, and therefore constitutional only if the use of such force is limited to situations in which the suspect poses an immediate threat to others. Id. at 246-247. Whatever the validity of Tennessee's statute in other contexts, I cannot agree that its application in this case resulted in a deprivation "without due process of law." Cf. Baker v. McCollan, 443 U. S. 137, 144 -145 (1979). Nor do I believe that a criminal suspect who is shot while trying to avoid apprehension has a cognizable claim of a deprivation of his Sixth Amendment right to trial by jury. See Cunningham v. Ellington, 323 F.Supp. 1072, 1075-1076 (WD Tenn.1971) (three-judge court). Finally, because there is no indication that the use of deadly force was intended to punish, rather than to capture, the suspect, there is no valid claim under the Eighth Amendment. See Bell v. Wolfish, 441 U. S. 520, 538 -539 (1979). Accordingly, I conclude that the District Court properly entered judgment against appellee-respondent, and I would reverse the decision of the Court of Appeals.
Even if I agreed that the Fourth Amendment was violated under the circumstances of this case, I would be unable to join the Court's opinion. The Court holds that deadly force may be used only 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.
Ante at 11.
The Court ignores the more general implications of its reasoning. Relying on the Fourth Amendment, the majority asserts that it is constitutionally unreasonable to use deadly force against fleeing criminal suspects who do not appear to pose a threat of serious physical harm to others. Ibid. By declining to limit its holding to the use of firearms, the Court unnecessarily implies that the Fourth Amendment constrains the use of any police practice that is potentially lethal, no matter how remote the risk. Cf. Los Angeles v. Lyons, 461 U. S. 95 (1983).
Although it is unclear from the language of the opinion, I assume that the majority intends the word "use" to include only those circumstances in which the suspect is actually apprehended. Absent apprehension of the suspect, there is no "seizure" for Fourth Amendment purposes. I doubt that the Court intends to allow criminal suspects who successfully escape to return later with 1983 claims against officers who used, albeit unsuccessfully, deadly force in their futile attempt to capture the fleeing suspect. The Court's opinion, despite its broad language, actually decides only that the shooting of a fleeing burglary suspect who was in fact neither armed nor dangerous can support a 1983 action.
The Court's silence on critical factors in the decision to use deadly force simply invites second-guessing of difficult police decisions that must be made quickly in the most trying of circumstances. Cf. Payton v. New York, 445 U.S. at 619 (WHITE, J., dissenting). Police are given no guidance for determining which objects, among an array of potentially lethal weapons ranging from guns to knives to baseball bats to rope, will justify the use of deadly force. The Court also declines to outline the additional factors necessary to provide "probable cause" for believing that a suspect "poses a significant threat of death or serious physical injury," ante at 3, when the officer has probable cause to arrest and the suspect refuses to obey an order to halt. But even if it were appropriate in this case to limit the use of deadly force to that ambiguous class of suspects, I believe the class should include nighttime residential burglars who resist arrest by attempting to flee the scene of the crime. We can expect an escalating volume of litigation as the lower courts struggle to determine if a police officer's split-second decision to shoot was justified by the danger posed by a particular object and other facts related to the crime. Thus, the majority opinion portends a burgeoning area of Fourth Amendment doctrine concerning the circumstances in which police officers can reasonably employ deadly force.
The Court's opinion sweeps broadly to adopt an entirely new standard for the constitutionality of the use of deadly force to apprehend fleeing felons. Thus, the Court "lightly brushe[s] aside," Payton v. New York, supra, at 600, a longstanding police practice that predates the Fourth Amendment and continues to receive the approval of nearly half of the state legislatures. I cannot accept the majority's creation of a constitutional right to flight for burglary suspects seeking to avoid capture at the scene of the crime. Whatever the constitutional limits on police use of deadly force in order to apprehend a fleeing felon, I do not believe they are exceeded in a case in which a police officer has probable cause to arrest a suspect at the scene of a residential burglary, orders the suspect to halt, and then fires his weapon as a last resort to prevent the suspect's escape into the night. I respectfully dissent.
[ Footnote 1 ]
The owner of the house testified that no lights were on in the house, but that a back door light was on. Record 160. Officer Hymon, though uncertain, stated in his deposition that there were lights on in the house. Id. at 209.
[ Footnote 2 ]
In fact, Garner, an eighth-grader, was 15. He was 5' 4" tall and weighed somewhere around 100 or 110 pounds. App. to Pet. for Cert. A5.
[ Footnote 3 ]
When asked at trial why he fired, Hymon stated:
Well, first of all it was apparent to me from the little bit that I knew about the area at the time that he was going to get away because, number 1, I couldn't get to him. My partner then couldn't find where he was because, you know, he was late coming around. He didn't know where I was talking about. I couldn't get to him because of the fence here, I couldn't have jumped this fence and come up, consequently jumped this fence and caught him before he got away because he was already up on the fence, just one leap and he was already over the fence, and so there is no way that I could have caught him.
He also stated that the area beyond the fence was dark, that he could not have gotten over the fence easily because he was carrying a lot of equipment and wearing heavy boots, and that Garner, being younger and more energetic, could have outrun him. Id. at 53-54.
[ Footnote 4 ]
Garner had rummaged through one room in the house, in which, in the words of the owner, "[a]ll the stuff was out on the floors, all the drawers was pulled out, and stuff was scattered all over." Id. at 34. The owner testified that his valuables were untouched, but that, in addition to the purse and the 10 dollars, one of his wife's rings was missing. The ring was not recovered. Id. at 34-35.
[ Footnote 5 ]
Although the statute does not say so explicitly, Tennessee law forbids the use of deadly force in the arrest of a misdemeanant. See Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938).
[ Footnote 6 ]
"The right of the people to be secure in their persons... against unreasonable searches and seizures, shall not be violated...." U.S.Const., Amdt. 4.
[ Footnote 7 ]
The Court of Appeals concluded that the rule set out in the Model Penal Code "accurately states Fourth Amendment limitations on the use of deadly force against fleeing felons." 710 F.2d at 247. The relevant portion of the Model Penal Code provides:
The use of deadly force is not justifiable... unless (i) the arrest is for a felony; and (ii) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a peace officer; and (iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and (iv) the actor believes that (1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.
American Law Institute, Model Penal Code 3.07(2)(b) (Proposed Official Draft 1962).
The court also found that "[a]n analysis of the facts of this case under the Due Process Clause" required the same result, because the statute was not narrowly drawn to further a compelling state interest. 710 F.2d at 246-247. The court considered the generalized interest in effective law enforcement sufficiently compelling only when the the suspect is dangerous. Finally, the court held, relying on Owen v. City of Independence, 445 U. S. 622 (1980), that the city was not immune.
[ Footnote 8 ]
The dissent emphasizes that subsequent investigation cannot replace immediate apprehension. We recognize that this is so, see n 13, infra; indeed, that is the reason why there is any dispute. If subsequent arrest were assured, no one would argue that use of deadly force was justified. Thus, we proceed on the assumption that subsequent arrest is not likely. Nonetheless, it should be remembered that failure to apprehend at the scene does not necessarily mean that the suspect will never be caught.
In lamenting the inadequacy of later investigation, the dissent relies on the report of the President's Commission on Law Enforcement and Administration of Justice. It is worth noting that, notwithstanding its awareness of this problem, the Commission itself proposed a policy for use of deadly force arguably even more stringent than the formulation we adopt today. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police 189 (1967). The Commission proposed that deadly force be used only to apprehend
perpetrators who, in the course of their crime, threatened the use of deadly force, or if the officer believes there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if his apprehension is delayed.
In addition, the officer would have "to know, as a virtual certainty, that the suspect committed an offense for which the use of deadly force is permissible." Ibid.
[ Footnote 9 ]
We note that the usual manner of deterring illegal conduct -through punishment -has been largely ignored in connection with flight from arrest. Arkansas, for example, specifically excepts flight from arrest from the offense of "obstruction of governmental operations." The commentary notes that this
reflects the basic policy judgment that, absent the use of force or violence, a mere attempt to avoid apprehension by a law enforcement officer does not give rise to an independent offense.
Ark.Stat.Ann. 41-2802(3)(a) (1977) and commentary. In the few States that do outlaw flight from an arresting officer, the crime is only a misdemeanor. See, e.g., Ind.Code 35-44-3-3 (1982). Even forceful resistance, though generally a separate offense, is classified as a misdemeanor. E.g., Ill.Rev.Stat., ch. 38, 1131-1 (1984); Mont.Code Ann. 45-7-301 (1984); N.H.Rev.Stat.Ann. 642:2 (Supp.1983); Ore.Rev.Stat. 162.315 (1983).
This lenient approach does avoid the anomaly of automatically transforming every fleeing misdemeanant into a fleeing felon -subject, under the common law rule, to apprehension by deadly force -solely by virtue of his flight. However, it is in real tension with the harsh consequences of flight in cases where deadly force is employed. For example, Tennessee does not outlaw fleeing from arrest. The Memphis City Code does, 22-34.1 (Supp. 17, 1971), subjecting the offender to a maximum fine of $50, 1-8 (1967). Thus, Garner's attempted escape subjected him to (a) a $50 fine, and (b) being shot.
[ Footnote 10 ]
See Sherman, Reducing Police Gun Use, in Control in the Police Organization 98, 120-123 (M. Punch ed.1983); Fyfe, Observations on Police Deadly Force, 27 Crime & Delinquency 376, 378-381 (1981); W. Geller & K. Karales, Split-Second Decisions 67 (1981); App. 84 (affidavit of William Bracey, Chief of Patrol, New York City Police Department). See generally Brief for Police Foundation et al. as Amici Curiae.
[ Footnote 11 ]
The roots of the concept of a "felony" lie not in capital punishment but in forfeiture. 2 F. Pollock & F. Maitland, The History of English Law 465 (2d ed.1909) (hereinafter Pollock & Maitland). Not all felonies were always punishable by death. See id. at 466-467, n. 3. Nonetheless, the link was profound. Blackstone was able to write:
The idea of felony is indeed so generally connected with that of capital punishment that we find it hard to separate them; and to this usage the interpretations of the law do now conform. And therefore if a statute makes any new offence felony, the law implies that is shall be punished with death, viz. by hanging, as well as with forfeiture....
4 W. Blackstone, Commentaries *98. See also R. Perkins & R. Boyce, Criminal Law 14-15 (3d ed.1982); 2 Pollock & Maitland 511.
[ Footnote 12 ]
White-collar crime, for example, poses a less significant physical threat than, say, drunken driving. See Welsh v. Wisconsin, 466 U. S. 740 (1984); id. at 755 (BLACKMUN, J., concurring). See Model Penal Code Comment at 57.
[ Footnote 13 ]
It has been argued that sophisticated techniques of apprehension and increased communication between the police in different jurisdictions have made it more likely that an escapee will be caught than was once the case, and that this change has also reduced the "reasonableness" of the use of deadly force to prevent escape. E.g., Sherman, Execution Without Trial: Police Homicide and the Constitution, 33 Vand.L.Rev. 71, 76 (1980). We are unaware of any data that would permit sensible evaluation of this claim. Current arrest rates are sufficiently low, however, that we have some doubt whether, in past centuries, the failure to arrest at the scene meant that the police had missed their only chance in a way that is not presently the case. In 1983, 21% of the offenses in the Federal Bureau of Investigation crime index were cleared by arrest. Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 159 (1984). The clearance rate for burglary was 15%. Ibid.
[ Footnote 14 ]
Ala.Code 13A-3-27 (1982); Ark.Stat.Ann. 41-510 (1977); Cal.Penal Code Ann. 196 (West 1970); Conn.Gen.Stat. 53a-22 (1972); Fla.Stat. 776.05 (1983); Idaho Code 19-610 (1979); Ind.Code 35-41-3-3 (1982); Kan.Stat.Ann. 21-3215 (1981); Miss.Code Ann. 97-3-15(d) (Supp.1984); Mo.Rev.Stat. 563.046 (1979); Nev.Rev.Stat. 200.140 (1983); N.M.Stat.Ann. 30-2-6 (1984); Okla.Stat., Tit. 21, 732 (1981); R.I.Gen.Laws 12-7-9 (1981); S.D.Codified Laws 22-16-32, 22-16-33 (1979); Tenn.Code Ann. 40-7-108 (1982); Wash.Rev.Code 9A.16.040(3) (1977). Oregon limits use of deadly force to violent felons, but also allows its use against any felon if "necessary." Ore.Rev.Stat. 161.239 (1983). Wisconsin's statute is ambiguous, but should probably be added to this list. Wis.Stat. 939.45(4) (1981-1982) (officer may use force necessary for "a reasonable accomplishment of a lawful arrest"). But see Clark v. Ziedonis, 368 F.Supp. 544 (ED Wis.1973), aff'd on other grounds, 513 F.2d 79 (CA7 1975).
[ Footnote 15 ]
In California, the police may use deadly force to arrest only if the crime for which the arrest is sought was "a forcible and atrocious one which threatens death or serious bodily harm," or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed. Kortum v. Alkire, 69 Cal.App.3d 325, 333, 138 Cal.Rptr. 26, 30-31 (1977). See also People v. Ceballos, 12 Cal.3d 470, 476-484, 526 P.2d 241, 245-250 (1974); Long Beach Police Officers Assn. v. Long Beach, 61 Cal.App.3d 364, 373-374, 132 Cal.Rptr. 348, 353-354 (1976). In Indiana, deadly force may be used only to prevent injury, the imminent danger of injury or force, or the threat of force. It is not permitted simply to prevent escape. Rose v. State, 431 N.E.2d 521 (Ind.App.1982).
[ Footnote 16 ]
These are Michigan, Ohio, Virginia, and West Virginia. Werner v. Hartfelder, 113 Mich.App. 747, 318 N.W.2d 825 (1982); State v. Foster, 60 Ohio Misc. 46, 59-66, 396 N.E.2d 246, 255-258 (Com.Pl.1979) (citing cases); Berr v. Hamman, 203 Va. 596, 125 S.E.2d 851 (1962); Thompson v. Norfolk & W. R. Co., 116 W.Va. 705, 711-712, 182 S.E. 880, 883-884 (1935)
[ Footnote 17 ]
Haw.Rev.Stat. 703-307 (1976); Neb.Rev.Stat. 28-1412 (1979). Massachusetts probably belongs in this category. Though it once rejected distinctions between felonies, Uraneck v. Lima, 359 Mass. 749, 750, 269 N.E.2d 670, 671 (1971), it has since adopted the Model Penal Code limitations with regard to private citizens, Commonwealth v. Klein, 372 Mass. 823, 363 N.E.2d 1313 (1977), and seems to have extended that decision to police officers, Julian v. Randazzo, 380 Mass. 391, 403 N.E.2d 931 (1980).
[ Footnote 18 ]
Alaska Stat.Ann. 11.81.370(a) (1983); Ariz.Rev.Stat.Ann. 13-410 (1978); Colo.Rev.Stat. 18-1-707 (1978); Del.Code Ann., Tit. 11, 467 (1979) (felony involving physical force and a substantial risk that the suspect will cause death or serious bodily injury or will never be recaptured); Ga.Code 16-3-21(a) (1984); Ill.Rev.Stat., ch. 38, 7-5 (1984); Iowa Code 804.8 (1983) (suspect has used or threatened deadly force in commission of a felony, or would use deadly force if not caught); Ky.Rev.Stat. 503.090 (1984) (suspect committed felony involving use or threat of physical force likely to cause death or serious injury, and is likely to endanger life unless apprehended without delay); Me.Rev.Stat.Ann., Tit. 17-A, 107 (1983) (commentary notes that deadly force may be used only "where the person to be arrested poses a threat to human life"); Minn.Stat. 609.066 (1984); N.H.Rev.Stat.Ann. 627:5(II) (Supp.1983); N.J.Stat.Ann. 2C-3-7 (West 1982); N.Y. Penal Law 35.30 (McKinney Supp.1984-1985); N.C.Gen.Stat. 15A-401 (1983); N.D.Cent.Code 12.1-05-07.2.d (1976); 18 Pa.Cons.Stat. 508 (1982); Tex.Penal Code Ann. 9.51(c) (1974); Utah Code Ann. 76-2-404 (1978).
[ Footnote 19 ]
See La.Rev.Stat.Ann. 14:20(2) (West 1974); Vt.Stat.Ann., Tit. 13, 2305 (1974 and Supp.1984). A Federal District Court has interpreted the Louisiana statute to limit the use of deadly force against fleeing suspects to situations where "life itself is endangered or great bodily harm is threatened." Sauls v. Hutto, 304 F.Supp. 124, 132 (ED La.1969).
[ Footnote 20 ]
These are Maryland, Montana, South Carolina, and Wyoming. A Maryland appellate court has indicated, however, that deadly force may not be used against a felon who "was in the process of fleeing and, at the time, presented no immediate danger to... anyone...." Giant Food, Inc. v. Scherry, 51 Md.App. 586, 589, 596, 444 A.2d 483, 486, 489 (1982).
[ Footnote 21 ]
In adopting its current statute in 1979, for example, Alabama expressly chose the common law rule over more restrictive provisions. Ala.Code 13A-3-27, Commentary, pp. 67-63 (1982). Missouri likewise considered but rejected a proposal akin to the Model Penal Code rule. See Mattis v. Schnarr, 547 F.2d 1007, 1022 (CA8 1976) (Gibson, C.J., dissenting), vacated as moot sub nom. Ashcroft v. Mattis, 431 U. S. 171 (1977). Idaho, whose current statute codifies the common law rule, adopted the Model Penal Code in 1971, but abandoned it in 1972.
[ Footnote 22 ]
In a recent report, the Department of Corrections of the District of Columbia also noted that "there is nothing inherently dangerous or violent about the offense," which is a crime against property. D.C. Department of Corrections, Prisoner Screening Project 2 (1985).
[ Footnote 23 ]
The dissent points out that three-fifths of all rapes in the home, three-fifths of all home robberies, and about a third of home assaults are committed by burglars. Post at 26-27. These figures mean only that, if one knows that a suspect committed a rape in the home, there is a good chance that the suspect is also a burglar. That has nothing to do with the question here, which is whether the fact that someone has committed a burglary indicates that he has committed, or might commit, a violent crime.
The dissent also points out that this 3.8% adds up to 2.8 million violent crimes over a 10-year period, as if to imply that today's holding will let loose 2.8 million violent burglars. The relevant universe is, of course, far smaller. At issue is only that tiny fraction of cases where violence has taken place and an officer who has no other means of apprehending the suspect is unaware of its occurrence.
Header photo: United States Supreme Court. Credit: Patrick McKay / Flickr - CC.