The Constitution does not permit police to fire at unarmed, nonviolent, fleeing suspects unless there is a significant threat of death or serious physical injury to the officer or the public.
The police account of Saturday's events is that Michael Brown fought for a gun in a police cruiser before being shot dead a short distance from the car. Given that account, one question in Brown’s shooting death at the hands of Ferguson police is whether Brown would be considered a non-dangerous suspect.
The U.S. Supreme Court imposed a constitutional limit on the police use of deadly force to apprehend unarmed fleeing felons in a 1985 case from Memphis where an African-American 8th grader was shot fleeing a home burglary. That decision, Tennessee v. Garner, rested on the shoulders of a St. Louis case from the 1970s.
The St. Louis case was the 1972 shooting of Michael Mattis, the 18-year-old son of a prominent St. Louis County doctor, Dr. Robert Mattis. The teen was killed by an Olivette police officer as Mattis and a teenage accomplice fled a burglary at a golf driving range.
The American Civil Liberties Union of Eastern Missouri challenged the shooting as a violation of Mattis’ civil and constitutional rights.
In 1976, the ACLU won a favorable ruling in the 8th U.S. Circuit Court of Appeals in St. Louis, which found that police departments had moved away from using deadly force to apprehend a suspected felon who was not considered dangerous. The appeals court opinion was a long, scholarly inventory of evolving police practice, showing that law enforcement agencies themselves were moving way from the practice.
The U.S. Supreme threw out the 8th Circuit decision on procedural grounds. But a few years later when the court revisited the issue in the landmark 1985 Garner decision, it rested its decision partly on the 8th Circuit's opinion in Mattis. It cited Mattis to make the point that many police departments were no longer relying on deadly force to stop fleeing felons. For that reason, states no longer could claim that deadly force was standard police practice required for effective law enforcement.
Defining the justification of deadly force
Edward Garner was a 15-year-old shot by a Memphis police officer who saw Garner trying to scale a fence while escaping from a burglary. The officer could see that Garner probably wasn’t armed. Police found he had taken a purse with $10 from the home.
Tennessee, like most other states, had laws justifying the use of deadly force to stop the escape of a fleeing criminal suspect. But the U.S. Supreme Court ruled that those laws violated the Fourth Amendment’s ban on unreasonable searches and seizures.
Police use of deadly force was legally considered seizure under the Fourth Amendment and therefore had to be reasonable in light of all circumstances, the court ruled. It is unreasonable for police to use deadly force against a fleeing suspect 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 is not better that all felony suspects die than that they escape,” wrote Justice Byron White for the majority. “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. …A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead.”
But the court added that police could use deadly force if the suspect had threatened the life of a police officer.
“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,” said Justice White.
Implications for the Brown case
According to police accounts on Sunday, Brown fought with a Ferguson officer over the officer's gun in a police car, and at least one shot was fired within the car. Brown then was shot a distance from the police cruiser after the officer fired multiple shots. Police said the distance from the car door to the shooting was about 35 feet.
Roger Goldman, an emeritus law professor at Saint Louis University Law School, said that he has “always assumed based on Garner that if the fleeing suspect wasn’t armed and wasn’t dangerous police couldn’t shoot him.”
But he added that White’s reference to a dangerous fleeing felon injected some “ambiguity.” He added, “if an officer was harassing a suspect and was pointing a gun a suspect and the suspect pushed back at the gun, would that make the suspect dangerous?” Goldman asked.
Goldman noted that the Supreme Court has made clear that police can fire at suspects fleeing in a speeding car.
In a decision this spring involving a fleeing auto, the court made clear that it considers the “totality of the circumstances” in each case and uses the “perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.
(William H. Freivogel is director of the School of Journalism at Southern Illinois University and has reported on legal issues throughout his career, including reporting on the Supreme Court at the time of the Garner decision.)