Police Use of Deadly Force Under a Fourth Amendment Perspective: An End to Florida's Fleeing Felon Statute? by Stetson Law Review

    POLICE USE OF DEADLY FORCE UNDER A FOURTH

AMENDMENT PERSPECTIVE: AN END TO FLORIDA'S FLEEING FELON STATUTE?

Garner v. Memphis Police Department,

710 F.2d 240 (6th Cir. 1983)

® 1984 Stetson Law Review



On October 3, 1974, two Memphis police officers were
Isummoned to an unoccupied residence. A fifteen-year-old boy had

2broken a window and burglarized the house. The officers observed 

the youth run into the backyard and crouch down near a six-foot 

cyclone fence. One of the officers shone his flashlight on the 

boy, identified himself as a police officer, and ordered the boy
3to halt. When the boy tried to climb over the fence, the 

policeman fired his .38 caliber revolver at the boy.^ Even though 

he knew that the escaping felon was young and apparently unarmed,
5the officer had been instructed that under Tennessee law he was 

permitted to kill any fleeing felon if the criminal would 

otherwise escape.^ The boy died as a result of the gunshot

wound.

In the United States District Court for the Western

District of Tennessee, Cleamtee Garner bought a wrongful death
Qaction under 42 U.S.C. § 1983 against the officer, his 

supervisors and the City of Memphis, for damages relating to the
9death of his son. The district court dismissed the case against

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the officer and his supervisors, holding that they were acting in

1 0good faith reliance on Tennessee's fleeing felon law. The 

district court also dismissed the case against the city, holding 

that cities are immune from suit because they are not persons

subject to suit under 42 U.S.C. § 1983. 11

The case was appealed to the Sixth Circuit Court of Appeals

which affirmed the district court ruling concerning individual

defendants, but reversed the dismissal and remanded the case

against the city with instructions to determine the

constitutionality of the fleeing felon statute and to reexamine

the immunity issue in light of recent case law 12

The district court, on remand, again dismissed the case 

against the city. The district court held that the constitutional 

issues concerning the Tennessee fleeing felon statute were "a

matter of policy for the legislature rather than the judiciary. ,J3

The district court held that a city is not immune from liability,

14based on an agent's good faith, but left open the question 

whethr the city itself may claim immunity based on a good faith

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reliance on the state laws. 15

Mr. Garner again appealed to the Sixth Circuit Court of

Appeals. HELD: The use of deadly force by a law enforcement

officer on an unarmed, nonviolent fleeing felon violates the

fourth amendment’s protection against unreasonable seizures of the

person. Deadly force is only permissible when the officer has 

17probable cause to believe that the fleeing felon is either armed

or dangerous to the safety of others if not captured, or that the

18fleeing felon has committed a violent crime. The court also 

held that there is no good faith immunity for a city in a suit 

brought under 42 U.S.C. § 1983. The Sixth Circuit Court of 

Appeals concluded that it is better to spread the cost of 

liability among the general public rather than place it on the

individual 19

The Sixth Circuit Court of Appeals in Garner is the first

circuit court to squarely hold that the use of deadly force by a 

law enforcement officer on an unarmed, nonviolent fleeing felon is 

a violation of the fourth amendment and to subsequently declare a

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opinion is most significant in that the court abandoned the

21archaic common law rule and substituted a more modern, humane 

rule regulating the use of deadly force in the hope of preventing 

needless loss of life.

This note will address the considerable impact the Garner 

decision will have on the numerous statutes now permitting such 

use of deadly force. Many of these statutes may be overturned 

under the Garner reasoning. The impact in Florida will be 

analyzed because of a pending case factually similar to Garner. 

This note will also consider issues not properly addressed by the 

Garner court including the effect on any deterence the common law 

rule may have created, the impact on the officer's safety with the 

Garner approach, and the impact on police tactics and procedures. 

Finally, in light of the inadequacies of the Garner decision, a 

new standard for the use of deadly force will be suggested.

THE COURT'S "LOGICAL" ANALYSIS

In a unanimous decision, the Sixth Circuit Court of Appeals

20state fleeing felon statute unconstitutional. The Garner

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22employing a unique fourth amendment analysis. In the opinion

written by Judge Merritt, the Garner court indicated its

preference for a fourth amendment analysis rather than an

examination under more general constitutional provisions because

of the fourth amendment's specificity towards methods of arrests
22and seizure of the person. The court first narrowed the issue

presented by the case to "whether a state law authorizing the

killing of an unarmed, nonviolent fleeing felon by police in order

to prevent escape, constitutes an unreasonable seizure of the 

24person." The court then found that the killing of an individual 

is "plainly a 'seizure' of the 'person'" and narrowed the issue 

even further to "whether this method of capturing suspects is

declared the Tennessee fleeing felon statute unconstitutional

'reasonable' under the Fourth Amendment. ,,25

Previously, Tennessee courts have left the questions of

"reasonableness" and "necessity" to the trier of fact. In 

adopting the common law approach, which permitted the use of 

deadly force against any fleeing felon, the Tennessee courts had

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interpreted the Tennessee fleeing felon statute to mean that if 

the officer would probably have not been able to capture the 

fleeing felon without shooting, then the jury should find his

action reasonable 26

The Garner court set forth a detailed discussion of the

common law rule, its origin, and logic. The court found that the

common law rule permitted the killing of a fleeing felon

27regardless of the nature of the felony, but carefully noted that

this rule existed at a time when all of the few crimes classified

2 8as felonies were capital crimes. Inherent in the common law

definition of "felony" was that the felon "was automatically

dangerous and posed an immediate threat to the physical safety of 

29others." The court emphasized the common law attitude toward

felons that if any resistance to capture was offered, the felon

30would be killed. The fleeing felon was considered a dangerous 

31"outlaw." The common law prohibited the use of a deadly force 

"against a fleeing felon where the alleged crime was not a capital

offense. The common law logic was that "the killing of a

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fleeing felon [whose crime constituted a capital offense] merely

accelerated the time of punishment.,,33

After analyzing the common law rule and its reasoning, the 

court invalidated any attempt to consistently apply the common law 

rule in modern times. The scope of the "felony classification" 

for a criminal offense has expanded tremendously and now includes 

nonviolent offenses not conceived of at common law, such as tax
Oilevasion and embezzlement.-^ Felonies today also include violent,

but non-capital offenses. Any reasoned attempt to apply the

common law rule today, the Garner court said, was to put the form

35of the common law rule over "its substance and purpose." The 

common law reasoning based on the fact that all felonies were 

capital crimes has no logical application today because the 

definition of "felony" has changed.

The court cited only two appellate opinions that discussed 

in a fourth amendment context the use of deadly force against a 

fleeing suspect. Neither court, however, squarely held that the 

use of deadly force against a fleeing felon is a fourth amendment

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violation, and thus both courts had failed to invalidate a state 

statute allowing such force.
■37In Jenkins v. Averett, a youth was cornered by a police

Q Q
officer. The Fourth Circuit Court of Appeals permitted a 

federal constitutional claim under 42 U.S.C. § 1983. The court 

held that the fourth amendment protects an "individual’s physical
•3Qintegrity" against the "reckless use of force." The 

constitutionality of the state statute, however, was not examined

by the Jenkins court 40

41In Bivens v. Six Unknown Federal Narcotics Agents. the

Supreme Court discussed the constitutional ramifications of an

allegedly warrantless search and arrest without probable cause.

Chief Justice Burger, in his dissenting opinion, intimated that

the type of deadly force used in Garner may violate the fourth 

42amendment. Although this case did not deal with a fleeing 

felon, the Chief Justice, in his analysis of the search and 

seizure component of the fourth amendment, briefly discussed 

police use of deadly force and indicated that such force must be

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balanced against the degree of the offense. 43

The Garner court points out that similar doubts concerning

the validity of the common law rule were raised even in 188?.^^

45In the case of United States v. Clark, the court stated that a 

person arrested for a petit crime, even though a felony, might not 

give an officer justification to kill him because ’’the punishment 

is altogether disproportionate to the magnitude of the 

offenses.

After examining these cases and the faulty logic of modern

application of the common law rule, the Garner court concluded its

fourth amendment analysis by finding that any statute that permits

the use of deadly force on a nonviolent, unarmed fleeing felon

violates the fourth amendment because it constitutes an

47unreasonable seizure of the peson. The Tennessee fleeing felon

statute, the court ruled, is unconstitutional because it does not

sufficiently limit the use of deadly force by a law enforcement

officer and makes no distinctions based on the magnitude or
48gravity of the offense. The court, using Model Penal Code

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§ 3.072)(b), set forth the permissible standard for the use of 

deadly force: the officer must have probable cause to believe

that the fleeing felon is either armed or dangerous to the safety 

of others if not captured, or the police officer must have 

probable cause to believe that the fleeing felon has committed a

49

violent crime 50

Even under a substantive due process analysis of the fourth 

51amendment, the Garner court concluded that the same result is

52achieved as under the fourth amendment. The court found that

the state interest is not sufficiently compelling to justify the

use of deadly force when the fleeing felon is unarmed and 

53nonviolent. Furthermore, "laws which infringe on fundamental

rights must be narrowly drawn to express only the legitimate state
54interests at stake." The Tennessee fleeing felon law, the court

said, was not so narrowly drawn. 55

The Garner court then turned to the issue of good faith as

a defense. The court determined that there is not good faith 

immunity for a municipality relying on a state statute, even

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egthough the statute may be constitutional on its face. The court

interpreted a recent Supreme Court case as abolishing altogether a

city's right to claim good faith immunity under 42 U.S.C. § 1983.

57In Owen v. City of Independence, the Supreme Court held that

"there is no common law analogue which would suggest that

municipalities have immunity for good faith reliance on state law

under § 1983." The Court further held that it is better to

spread the cost of liability "among the general public" instead of

finding liable the individual who must use discretion in his 

59position. The Garner court found no reason to deviate from the

doctrine expressed in Owen 60

THE COURT'S PURPOSE IN A FOURTH AMENDMENT ANALYSIS

Courts have been extremely reluctant to declare

unconstitutional state statutes allowing the use of deadly force

by a police officer against an unarmed, nonviolent fleeing felon

The courts have tenaciously held to the common law rule embodied

in state statutes, because they believed that such matters were

61best left to the legislature. But these courts have failed to

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sufficiently explain why a matter of constitutionality (albeit 

involving policy issues) should be left to legislative action.

Issues of constitutionality lie squarely within the realm of the

 ̂ 62 courts.

The Garner court, however, took a bold step forward, and

used a specific fourth amendment evaluation of the

constitutionality of a fleeing felon statute. Using this

analysis, the court declared the statute unconstitutional, and

established a standard for the use of deadly f o r c e . T h e  fourth

amendment analysis employed in Garner is being adopted by other

64courts. The recent case of Taylor v. Collins involved the fatal

65shooting of a fleeing felon by police. The officer fired at a

fifteen-year-old youth after he had fled the scene of a burglary.

6 6The Taylor court heralded Garner  ̂ as the "golden trumpet calling
ft 7out the end of traditional fleeing felon statutes." Clearly the 

Garner decision is of tremendous significance, but to fully

understand and appreciate the court’s decision and its

ramifications, closer scrutiny of the reason for such judicial

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activism now (at least in the sense of promulgating new standards) 

and the reason behind the court's choice for a fourth amendment 

analysis, is required.

The end of the Tennessee fleeing felon statute was clearly

foreshadowed years before Garner on different constitutional
68grounds. As District Judge Newblatt pointed out in Taylor, the

courts in Mattis v. Schnarr^̂  and Jones v. Marshall, b o t h  of

which involved police use of deadly force on fleeing felons,

detailed extensive analytical discussions justifying rulings that

struck down fleeing felong statutes on bases other than the fourth 
71amendment. Judge Newblatt's research revealed that "the

historical foundation of American state fleeing felon statutes is

72a foundation built on loose sand." It appears that the time was 

sufficiently ripe in the mind of the Garner court for the type of 

decision rendered. The factual situation presented an 

unparalleled opportunity for a judicially active court to strike 

down a fleeing felon statute as unconstitutional and then to set 

forth the appropriate standard for the use of deadly force.

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The court choose a fourth amendment analysis, because of

its specificity concerning methods of arrest and seizure of the 

73person. Although this statement appears logical, and is

superficially attractive, closer scrutiny reveals its shallowness.

The fourteenth amendment’s protection "that no state shall deprive

any person of life, liberty, or property without due process of

7 Ulaw" is clearly applicable and comparably specific. The Garner

court may have used the fourth amendment to lessen the shock on

the judicial system by leaving as much case law as possible

undisturbed. The court strained to point out that its fourth

amendment holding is not inconsistent with prior h o l d i n g s . T h e

Garner court pointed out that in each of these cases the analysis

was under the eighth and fourteenth amendments "as a matter of
7 Fisubstantive due process." The court further stated "[I]n none

of these cases was a Fourth Amendment question raised, discussed,

77mentioned, or decided." The court thus avoided "rocking the 

boat" by utilizing an alternative method of analysis, thereby 

superficially leaving the previous case decision intact.

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Regardless of the constitutional theory employed, the

Garner court failed to adequately address the following issues:

the impact on police procedures and tactics; the deterrence effect

of the common law rule; and concern for the officer’s safety.

Furthermore, the Garner court, in .view of these important

considerations, should have developed a somewhat different legal

standard than that enunciated as to the appropriate use of deadly

force. There are five basic tiers of knowledge relating to

police-citizen contact: the very highest being actual knowledge,

followed by "beyond a reasonable doubt," "probable cause,"

"reasonable suspicion," and the lowest being "mere suspicion" or 
T 8"hunch." The tiers can be imagined as forming a continuim. The 

different standard should have been reasonable suspicion instead 

of probable cause as to whether the fleeing felon had committed a 

violent crime, was armed, or presented a danger to the community 

if not apprehended.

IMPACT ON POLICE PROCEDURES

Police procedures are everchanging and could be modified to

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reflect a more restrictive standard for the use of deadly force. 

Additional training would be necessary to explain the judicially 

determined guidelines so that the officer would have a thorough 

and complete understanding of the new procedure and of his duties 

and responsibilities under that new standard. Judicial intrusion
VQinto police tactics and procedures is nothing new, and 

encouraging departments to review their policies and to demand 

conformity to legal guidelines is a public benefit. Nevertheless, 

due consideration should be given to the mechanics of changing 

procedures and the time which will be required to do so.

DETERRENCE EFFECT FROM THE COMMON LAW RULE

The courts seem either to entirely overlook any possible

deterrent effect of the common law rule or to dismiss it as

8 0insignificant. However, a cogent argument can be set forth in 

support of the common law deterrence effect. As Professor Waite 

of the Advisory Committee pointed out while tentative drafts of 

the Model Penal Code were being developed "[o]nly through truly

effective power of arrest can law be satisfactorily enforced „81

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Waite reasoned that once a suspected offender successfuly avoids

arrest by fleeing from the officer, he may never be apprehended,

8 2"especially if he is a minor offender." Waite contended that no 

person being arrested should be given the privilege of flight; 

otherwise, the very effectiveness of law enforcement would
Qqbe hampered. As to the dangers of killing an innocent man

resisting what he believes to be an attack upon him by an

unidentified assailant, Waite dismissed this scenario as
84"virtually impossible." Waite concluded that elimination of the

common law rule and adoption of the Model Penal Code approach is

85essentially an offer to the criminal to flee. Waite stated that 

he is "entirely unwiling to give that benediction to the modern 

criminal."

The Advisory Committee believed the advantages of the
Q Yproposed rule offset the objections raised by Waite. The

Advisory Committee belittled the consideration of what will

prevent the nonviolent fleeing felon from escaping if his guilt is 

unquestionable and his chances of later capture slim.

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Unfortunately, there are no empirical studies that analyze 

the deterrent effect of the common law rule, but common sense 

dictates that universal abolition of the common law rule would 

increase the number of felons who attempt escape often before they 

are identified. If the escapee knows that he might get shot, as 

he does now, he may be less apt to run.
88As pointed out in Hilton v. State, the drafters of the

Model Penal Code "strongly expressed controversy as to how the

balance should be struck between the necessities of effective law

enforcement and our society's dedication to the sanctity of human 
89life." Obviously, some offenders will never consider whether 

they will be shot if they escape. But even if the deterrence 

effect is minimal, it should not be quickly dismissed when the

crime problem in today's soceity is so pervasive

OFFICER'S SAFETY

A police officer faces one of the most difficult decision

in his life when he is faced with the decision whether to use

90deadly force on a fleeing felon. The decision needs to be made

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virtually in a split second. In that split second, how thoroughly 

can the officer properly assessed the true gravity of the offense, 

the age and attitude of the offender, whether the subject is 

armed, and most importantly, what ramifications await the officer 

and the public if the officer shoots or fails to shoot? In 

requiring that the officer have probable cause that the suspect 

has committed a violent crime or probable cause that he is armed 

or dangerous, the Garner court may have placed a substantially 

increased risk on the police officer and on the public in general.

The standard of probable cause is a relatively high standard. 91

one which requires more thought and deliberation than even the 

most experienced and adept police officer can achieve within a 

split second. The delay in the officer's response demanded by the 

higher standard may be enough for the offender to gain the 

advantage and to kill or injure the officer, or it may be enough 

that the offender successfully escapes and poses a risk to the 

public. The probable cause requirement also seriously limits the 

court's flexibility in determining the appropriateness of deadly

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force in a given situation. The court should be given leeway in 

analyzing the reasonableness of the officer’s actions without

being locked into an inflexible standard of greater certainty,

IMPACT IN FLORIDA--THE OPPORTUNITY FOR CHANGE

Florida is currently one of twenty-three states that have

fleeing felon statutes similar or identical to the Tennessee

92fleeing felon statute. Although many departments place greter 

restrictions on the use of deadly force than these statutes, a 

significant number of law enforcement agencies in Florida still
noretain the common law approach. The effect of the Garner 

decision on Florida's fleeing felong statute may soon be 

determined by the district court when the case of Sulblett v. 

Jacksonville Sheriff’s Department is heard and decided later this
94year. A Jacksonville police officer shot and killed an

eighteen-year-old for what appeared to be his involvement in a

95burglary of an unoccupied business. The young man apparently 

ran out of gas on the highway and was attempting to siphon gas 

from a truck in the parking lot of the business when he set off an

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alarm. Police officers arrived and saw the youth hiding under the

truck. An officer shouted "Stop, Police," and then fired his .38

96caliber revolver, striking the youth in the side. The youth, 

after being shot, stated that "I was only trying to get some

gas ,.97

respirator

He died ten months later, spending much of that time on a 
98

In Sublett, which presents essentially the same issue as

Garner. the court will have the opportunity to declare the Florida

99fleeing felon statute unconstitutional. The court can adopt the 

reasoning found in Garner (at least in part), and declare the 

Florida fleeing felon statute unconstitutional as a violation of

the fourth amendment.

If the district court fails to properly act on this issue 

now, it will join the long list of other courts that have failed 

to take the initiative to tackle such a controversial and 

long-debated issue. Deferring the issue to the legislature is

nothing more than shirking judicial responsibility. But if the 

district court does accept the challenge and decides to adopt at

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least part of the Garner analysis, the archaic common law rule's 

fate may finally be determined.

FLORIDA'S FLEEING FELON STATUTE SHOULD BE DECLARED UNCONSTITUTIONAL. 

AND A NEW STANDARD SHOULD BE ENUNCIATED

The Florida fleeing felon law should be declared

101unconstitutional, but a standard of reasonable suspicion that 

the fleeing felon is armed, has committed a violent crime, or 

presents a danger to the community if not apprehended, should be 

used in place of the probable cause requirement set for in Garner. 

The Garner court could have required actual knowledge, but such an 

inflexible standard would virtually eliminate the use of deadly 

force in almost every situation. As previously indicated, 

however, the standard of probable cause is too restrictive in that 

the officer faces an increased danger, and the courts are denied 

flexibility in reviewing the appropriateness of the use of deadly 

force in borderline situations. By using a standard of reasonable 

suspicion, the officer would be placed in a safer position, there 

would still be some deterrent effect possible, and the courts

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would be afforded greater latitude in reviewing the cases.

The reasonable suspicion standard comports with the fourth

amendment analysis applied by the Sixth Circuit Court of Appeals

102in Garner. As noted in Terry v. Ohio, although stops and

frisks come under the fourth amendment, they are justified without

10Sa warrant because of the governmental interest involved. The

notion that policy considerations allow a more flexible standard,

such as reasonable suspicion, is not original. For example,

searches and seizures at borders are permissible without a

104warrant. In the case of United States v. Himmelwright, which 

dealt with a strip search of an individual at the border, the 

policy considerations were pronounced because courts believe that

a lesser standard of individual protection is necessary to

safeguard our nation. The Himmelwright case held that

"’reasonableness' in the fourth amendment sense always depends on 

a balance which must be struck between, on the one hand, the level 

of official intrusion into individual privacy and, on the other

hand, the public interest to be served by such an intrusion." 105

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Obviously, terminating a human life is the ultimate intrusion upon 

an individual’s rights. But when weighing the tremendous public 

purpose to be served against the slightly greater intrusion upon 

the individual’s rights with a lesser standard of reasonable 

suspicion instead of probable, however, public interest should 

prevail.

The need for safer law enforcement alone demands this

lesser standard. The officer would be more secure knowing that 

the standard for his act of shooting would be one of reasonable 

suspicion. With the increased flexibility of this legal standard, 

the courts could more closely examine the officer’s experience, 

training, aptitude and attitude. The court tract the officer’s 

mental process and determined the objective reasonableness of the 

officer’s inferences based on what the officer knew at the time of 

the shooting.

There are numerous borderline situations that illustrate 

the need for the lesser standard to protect the officer and the 

public in general. An officer who spends too much time

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contemplating whether what he has observed constitutes probable

cause may never live long enough to resolve the problem 106

As to the deterrence effect, if the offender has knowledge 

that his acts may be construed to give rise to a reasonable 

suspicion of dangerousness or violence, he may be deterred from 

escaping or at the very least may confine his acts to those that 

would not even present a reasonable inference that he is dangerous 

or violent. Furthermore, the offender may hesitate just long 

enough before escaping to think through the potential 

ramifications and give the officer the opportunity to capture him.

By utilizing the standard of reasonable suspicion, instead

of probable cause, the entire spectrum of advantages shifts

slightly away from the offender and toward the officer and the

public interest. Until technology reaches a level where police

officers can safely utilize nonlethal weaponry, the officer should

107be afforded some protections. The lesser standard of

reasonable suspicion will afford those protections without 

significantly intruding on the rights of the accused.

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GARNER. A MODERN DAY EXCALIBUR

The Garner case is the modern day excalibur to cut down 

fleeing felon statutes based on common law across the nation. 

However, several important issues need to be properly addressed 

before the appropriate standard for the use of deadly force can be 

set forth. In view of the important considerations of police 

safety, deterrence, and the need for flexibility in judicial 

review, the appropriate standard for the use of deadly force 

should be reasonable suspicion, not probable cause as set forth in 

Garner. The lesser standard of reasonable suspicion will afford 

the officer and the public maximum protection and preserve the 

public interest, while amounting to only a minimal intrusion upon 

the individual's interest.

The recommended standard is the logical progression from 

the common law rule until technology achieves such a state that a 

stricter standard such as probable cause or actual knowledge can 

be safely employed. Someday, technology should reach a point 

where all deadly force by law enforcement officers will be

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abolished as unnecessary and excessive. Until that time, the 

Garner court’s fourth amendment analysis must provide the tool for 

other courts to abandon the common law rule and replace it with an 

appropriate legal standard governing the use of deadly force by 

police. This standard should be ’’reasonable suspicion” to 

maximize all potential benefits.

Johnnie H. Trevena*

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