Culture Wars/Current Controversies

Protests ERUPT after Atlanta police shooting, here’s what we know

It’s certainly possible to argue that this was a “suicide by cop” situation but, as Jim Bell has pointed out in the forum, this is still an illegal shooting under constitutional jurisprudence. A civilian wouldn’t get away with this. Krystal’s commentary in this is good.

Krystal and Saagar discuss the fatal shooting of Rayshard Brooks at a Wendy’s parking lot in Atlanta.

1 reply »

  1. The Tennessee v. Garner decision by the Supreme Court, 1985, explained, https://www.law.cornell.edu/supremecourt/text/471/1
    [partial quote follows]:

    “Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, 440 U.S., at 659, 99 S.Ct., at 1399. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts,9 the presently available evidence does not support this thesis.10 The fact is that a majority of police departments in this country have forbidden the use of deadly force against nonviolent suspects. See infra, at 18-19. If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. See Schumann v. McGinn, 307 Minn. 446, 472, 240 N.W.2d 525, 540 (1976) (Rogosheske, J., dissenting in part). Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect’s interest in his own life.

    14
    “The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. 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. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

    15
    “It is not, however, unconstitutional on its face. Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, 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. As applied in such circumstances, the Tennessee statute would pass constitutional muster.

    [snip, then partial quote continues:]

    The State and city argue that because this was the prevailing rule at the time of the adoption of the Fourth Amendment and for some time thereafter, and is still in force in some States, use of deadly force against a fleeing felon must be “reasonable.” It is true that this Court has often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity. See, e.g., United States v. Watson, 423 U.S. 411, 418-419, 96 S.Ct. 820, 825-826, 46 L.Ed.2d 598 (1976); Gerstein v. Pugh, 420 U.S. 103, 111, 114, 95 S.Ct. 854, 861, 863, 43 L.Ed.2d 54 (1975); Carroll v. United States, 267 U.S. 132, 149-153, 45 S.Ct. 280, 283-285, 69 L.Ed. 543 (1925). On the other hand, it “has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment’s passage.” Payton v. New York, 445 U.S. 573, 591, n. 33, 100 S.Ct. 1371, 1382, n. 33, 63 L.Ed.2d 639 (1980). Because of sweeping change in the legal and technological context, reliance on the common-law rule in this case would be a mistaken literalism that ignores the purposes of a historical inquiry.

    B

    20
    “It has been pointed out many times that the common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death.11 “Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected.” American Law Institute, Model Penal Code § 3.07, Comment 3, p. 56 (Tentative Draft No. 8, 1958) (hereinafter Model Penal Code Comment). Courts have also justified the common-law rule by emphasizing the relative dangerousness of felons. See, e.g., Schumann v. McGinn, 307 Minn., at 458, 240 N.W.2d, at 533; Holloway v. Moser, supra, 193 N.C., at 187, 136 S.E., at 376 (1927).

    21
    “Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be. See, e.g., Enmund v. Florida, 458 U.S. 782, 102 S.Ct. 3368, 73 L.Ed.2d 1140 (1982); Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). And while in earlier times “the gulf between the felonies and the minor offences was broad and deep,” 2 Pollock & Maitland 467, n. 3; Carroll v. United States, supra, 267 U.S., at 158, 45 S.Ct., at 287, today the distinction is minor and often arbitrary. Many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Wilgus, 22 Mich.L.Rev., at 572-573. These changes have undermined the concept, which was questionable to begin with, that use of deadly force against a fleeing felon is merely a speedier execution of someone who has already forfeited his life. They have also made the assumption that a “felon” is more dangerous than a misdemeanant untenable. Indeed, numerous misdemeanors involve conduct more dangerous than many felonies.12

    22
    “There is an additional reason why the common-law rule cannot be directly translated to the present day. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. L. Kennett & J. Anderson, The Gun in America 150-151 (1975). Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common-law rule has an altogether different meaning—and harsher consequences—now than in past centuries. See Wechsler & Michael, A Rationale for the Law of Homicide: I, 37 Colum.L.Rev. 701, 741 (1937).13”

    [end of partial quote from Tennesse v. Garner (1985)]

Leave a Reply