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A makeshift memorial is pictured near where black teenager Michael Brown was shot to death by police over the weekend in Ferguson, Missouri August 12, 2014. Police said Brown, 18, was shot in a struggle with a gun in a police car but have not said why Brown was in the car. At least one shot was fired during the struggle and then the officer fired more shots before leaving the car, police said. But a witness to the shooting interviewed on local media has said that Brown had been putting his hands up to surrender when he was killed. The FBI has opened a civil rights investigation into the racially charged case and St. Louis County also is investigating. REUTERS/Mario Anzuoni (UNITED STATES - Tags: CRIME LAW) - RTR426RH
A makeshift memorial is pictured near where black teenager Michael Brown
was shot to death by police over the weekend in Ferguson, Missouri.
The pistols are not used in self-defence—but to stop the men who are running away. They are considered substitutes for swift feet and long arms. Now we doubt the propriety of employing them for such a purpose. A Policeman has no right to shoot a man for running away from him. —Editorial in The New York Times, Nov. 15, 1858.

We don't yet know precisely what happened in the slaying of Michael Brown in Ferguson, Missouri, over the weekend. We do know that the unarmed Brown, an 18-year-old black man expecting to start classes at Vatterott College this week, was shot dead by a still-unnamed police officer. Police claim that Brown—known to teachers not as a troublemaker but as a "gentle giant"—got into a struggle with the officer and tried to grab his service pistol, something friends said was out of character for the teenager. St. Louis County Police Chief Jon Belmar said the officer shot at Brown and missed while he was in the police cruiser and then shot him several times as he ran away. Although accounts vary widely, witnesses have said Brown was more than 30 feet from the patrol car when he was gunned down.

Jennifer S. Mann reported:

“The federal courts are very clear that there are times and places where officers are allowed to shoot people in the back when they are running away, even if they are unarmed,” said David Klinger, a criminal justice professor at the University of Missouri-St. Louis and expert on police shootings.

Klinger, a former police officer, pointed to the 1985 U.S Supreme Court case Tennessee vs. Garner.

Justice Byron White wrote for the 6-3 majority in the Garner ruling, stating:
“This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is necessary to prevent the escape and 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.

The intrusiveness of a seizure by means of deadly force is unmatched. The suspect’s fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement [… ] 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.

There is more on this below the fold.

Since then, scholars have argued over whether the Garner ruling gives someone the constitutional right to run from police and whether the ruling gives the police the right to use deadly force only to protect life.

The shooting that sparked the case occurred nine years before the Supreme Court took it up. In October 1974, two officers of the Memphis Police Department responded to a burglary call. When they arrived on the scene, Officer Elton Hymon saw someone later identified as Edward Garner running across the lawn. Hymon followed him to a six-foot-high chain-link fence. He said later that he did not at the time believe Garner was armed. But when he tried to climb over, Hymon told him to stop and, when he didn't, shot him in the back of the head. An ambulance was called and took Garner to the hospital where he was pronounced dead.

He was 15 years old. Police found $10 and a purse on his body.

Hymon was not charged. The MPD said the shooting fell under the department's policy, which followed a Tennessee law stating "if, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest."

Attorneys for Garner's father filed a civil rights suit in 1975, alleging that Hymon had violated the Fourth, Eighth, and Fourteenth amendments in the shooting. A federal district court disagreed.

But the Sixth Circuit Court of Appeals overturned that decision on grounds of violations of the Fourth and Fourteenth amendments, ruling that the statute was a constitutional "seizure" only when the use of deadly force was reasonable. The court said it wasn't reasonable in this instance because of the relatively minor nature of the felony. In 1985, the Supreme Court agreed with the appeal court's reversal.

Here's more of White for the majority:

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.

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.

At the time of the decision, at least half the states followed the common-law rule that officers of the law could use deadly force against fleeing suspects. But that rule came into being at a time when felonies punishable by death—pickpocketing, for instance—were quite numerous. Thus, the Supreme Court noted, a "fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected."

That approach, the majority ruled, should not apply in modern times and states should eliminate such statutes. Twenty years later, however, only four states had done so.

Originally posted to Meteor Blades on Tue Aug 12, 2014 at 01:14 PM PDT.

Also republished by Barriers and Bridges and Daily Kos.

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