Police Shootings: A Primer for the Lead Detective (Part 2)
by Sgt. Tony Monheim, Miami-Dade Police Department (Ret.)
A thorough understanding of the laws that govern police shooting events is critical for the lead investigator. The lawful use of deadly force is grossly misunderstood by pundits, politicians, and the public. The depth of this misinterpretation of the laws regarding deadly force can actually be breathtaking. Comments made at press conferences and on cable news programs following a police shooting incident often have little basis in legal facts.
Definition of Deadly Force
What is deadly force? There are a myriad of definitions out there that have attempted to succinctly answer this very question. Many are verbose and confusing while others are contradictory and insufficient. The definition below is a compilation of several worthy efforts:
Deadly force--- That level of force which would lead a reasonable person to conclude that it’s use poses a high risk of death or critical injury, regardless of whether or not death or critical injury (or any harm at all) is the actual end result.
The more pressing question though is, “When can deadly force be used?” Fortunately, there are a variety of court decisions, both civil and criminal, that have resolved this issue and made it understandable.
Other than police officers, those in the military are the only recognized group in our society who are given the blanket authority to commit institutional homicide. But soldiers who do use deadly force do so only in a declared time of war, and usually on foreign soil. The exception would be National Guardsmen who are activated in a time of crisis such as civil disturbances; however, these situations are extremely rare.
It is the law enforcement officer, and only the law enforcement officer, who on a day-to-day basis, is given total and complete discretion in the use of deadly force. The cop on the beat, without the aid of counsel or the ability to circumspectly research volumes of legal opinions, must continuously make split-second decisions about when to use deadly force. Usually, these conclusions are made in highly-chaotic, noisy and distracting environments where the intentions of the person they are confronting are unclear. Plus, unlike the average citizen, police officers do not have the luxury of being able to retreat from a hazardous situation.
Today’s centurions are burdened with this enormous responsibility both on and off-duty. In addition, the consequences for any miscues or misjudgments are immense. It is an existence that undoubtedly takes a silent toll on the psyche.
The Supreme Court has identified two specific circumstances that police officers may encounter that would give rise to the permissible use of deadly force: 1) the arrest of a subject who is resisting or trying to escape and 2) an imminent threat of harm from a subject.
The authority for a police officer to make an arrest, and if necessary, to use force to affect the arrest, is derived from the Fourth Amendment to the Constitution of the United States. The Fourth Amendment is normally associated with the protection of citizens against unreasonable searches. Any reference in the text of the amendment as it relates to arrest powers is somewhat ambiguous and requires reading between the lines. Here is what the amendment says:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized”.
Where does it say anything about using deadly force to make an arrest, you may ask? It is the “seizure of the person” clause in the amendment that bestows this power. The courts have historically interpreted the term seizure to apply to an arrest with or without a warrant.
The founding fathers, in their infinite wisdom, knew that some citizens would refuse to obey the laws they had instituted. They were also quite aware that to enforce the laws and maintain the peace it would require the use of force. That is why the Constitution empowers law enforcement officers with the right to use force, even deadly force, if it is unavoidable.
Police officers are, and always have been, Constitutional officers whose sworn duty it is to preserve order. So the use of force, even deadly force, is not inherently wrong or incorrect if applied properly. It is only a Constitutional violation if the force is deemed “unreasonable."
Tennessee v. Garner
The seminal Court decision dealing with deadly force during an arrest and to prevent escape is Tennessee v. Garner (1985):
On the evening of October 3, 1974, Memphis, Tennessee police officer, Elton Hymon was searching for a prowler. A citizen had called the police about suspicious activity at the house of one of her neighbors. As officer Hymon reached the house in question he saw the burglar, he later described as a “young man,” run out the back door of the residence and flee toward a chain link fence in the back yard. Officer Hymon yelled, “Police, halt.”
The subject (who was later identified as a 5’4”, 100 pound eight-grader named Edward Garner) stopped momentarily. The officer said that as the subject faced him, he shined his flashlight and noticed that there were no weapons in his hands, but added that he was not absolutely certain that the youth was unarmed. Garner then bolted toward the six foot chain link fence and began to climb over it. As the 15-year-old was just about to clear the top of the fence, Officer Hymon fired one shot that stuck Garner in the back of the head. The teenager died on the operating table. Ten dollars and a purse from inside the house were found on his body. Edward Garner’s father filed a civil suit in Federal District Court seeking damages for violations of his son’s constitutional rights.
For his part, Officer Hymon felt that he acted correctly and within the existing laws. In a television interview following the incident he said, “It’s a split-second decision that has to be made, and I was quite comfortable with it. I was familiar with our policy as far as shoot and don’t shoot, and I just exercised that after every other means had been exhausted.”
At that time, about half of the states had enacted what were known as “fleeing felon laws” which allowed for the use of deadly force, with respect to property crimes, “if after notice of the intention to arrest, the defendant either flees or forcibly resists.”
The Court’s Decision
In Garner, the Court noted that these statutes relied on hundreds of years of common law as precedent. However, common law was adopted in an era when virtually all felonies were punishable by death. Therefore, the killing of a fleeing suspect resulted in no greater penalty than he would have received had he been convicted. Also, weapons were primitive in the earlier days of common law. A deadly confrontation could only result from close quarter, hand-to-hand combat. The Court rightly pointed out that law enforcement officers did not start carrying handguns until the 1850’s. They reasoned that, “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 of the common law rule has an altogether different meaning [today], and harsher consequences, than in previous centuries.”
In a 6-3 decision, the Supreme Court struck down the existing fleeing felon laws that allowed for the use of deadly force in regard to property crimes such as burglary. Writing for the majority, Justice Byron “Whizzer” White declared:
“The use of 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 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, non-dangerous suspect by shooting him dead.”
The Court did, however, recognize the constitutional authority to use deadly force to prevent escape, “where 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 Supreme Court then proposed a two-pronged test, presumably to assist officers in their future decision-making. They said that: 1) the dangerousness of the offender and 2) the necessity to use deadly force must both be considered.
With respect to “dangerousness,” the Court offered that “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 bodily harm, deadly force may be used, if necessary, to prevent escape.” They also added that, “whenever feasible, a suspect should be given a verbal warning and an opportunity to surrender before deadly force is used.”
In July of 2007, the Supreme Court clarified the “dangerousness of the offender” clause in Garner even further. For nearly a quarter of a century the lower courts have interpreted Garner to imply that deadly force could only be used if the danger was imminent. The Scott v. Harris decision made it clear that Garner did not establish any automatic preconditions for the lawful use of deadly force. In an 8-1 decision, they said that in no way did Garner attempt to specify the only possible circumstances in which deadly force could be used. In the Harris opinion, the court said:
“Garner did not establish a magical on/off switch that triggers rigid preconditions whenever an officer’s actions constitute deadly force…what matters is whether those actions were reasonable.”
As to the necessity to use deadly force, the silence on this matter from the Supreme Court has been deafening. The palpable absence of guidance here has opened the door to various legal questions and challenges. Many of the lower courts have placed the burden squarely on the shoulders of the officer and his/her judgment. Central to this issue is the appraisal of the situation by the officer. Challenges to the on-scene assessments made by officers commonly fall into two areas: 1) were less intrusive (deadly) alternatives available? and 2) has the necessity to use deadly force been created by the officer’s prior actions?
While it is true that most courts have rejected arguments that deadly force by officers was not necessary because they may have had other options available that were less intrusive, or that the necessity to use deadly force was created by the officers themselves (Plakas v. Drinski doctrine), a few Federal Appeals Courts have been less than sympathetic.
The overwhelming majority of the Circuit Courts, however, agree that conduct prior to the moment deadly force is applied, is irrelevant. This principle is set forth in the case Plakas v. Drinski, one of the most often cited deadly force cases in the Federal Court system.
Plakas v. Drinski
On a chilly February evening in 1991, two Newton County, Indiana deputies encountered a drunken Konstantino Plakas. Plakas’ vehicle was found in a deep ditch and filled with water on the north side of State Road 10. Plakas was quickly located walking along the highway. He readily admitted being the driver of the vehicle found in the ditch and stated that he was uninjured, only cold. He was eventually arrested for DUI. While being transported to the Sheriff’s Department for a breathalyzer test, he escaped.
Plakas made his way to the residence of his fiancé, Rachel Ailes, who lived just off of State Road 10. As Deputies entered the Ailes residence they observed Plakas slipping his handcuffs down the back of his legs, over his shoes and to the front of his body. With the handcuffs now in front, Plakas’ demeanor totally changed. He began screaming and swearing at the deputies. He eventually armed himself with a three foot long fireplace poker holding it like a baseball bat.
Deputy Jerry Drinski and a State Trooper confronted Plakas (weapons drawn) in the front yard. The deputies shouted, “Stop police,” over and over. Plakas, still handcuffed in front and armed with the fireplace poker, continued to run into a wooded area.
The officers repeatedly attempted to convince Plakas to surrender, however, he responded, “Go ahead and shoot….my life isn’t worth living.” He pointed the poker at Deputy Drinski telling him, “Either you’re going to die here or I’m going to die here.” Plakas then charged at Deputy Drinski with the poker raised over his head. Drinski attempted to retreat but backed into a tree. Unable to withdraw any further the deputy fired one shot into Plakas’ chest when he was two arms lengths away. Plakas was transported to the hospital where he died.
Plakas’ mother filed a Federal lawsuit alleging that, “Drinski and Newton County violated her son’s rights under the Fourth and Fourteenth Amendments. The plaintiff’s attorneys argued to the Court that, “Drinski was under legal obligation to either let Plakas escape, or to effect the arrest by less provocative means.” They suggested the Deputies should have used a less lethal method to take Plakas into custody such as disabling him with chemical spray or using a police canine to disarm him.
The Seventh Circuit Court of Appeals resoundingly rejected these claims stating in part:
“There is no precedent in this Circuit (or any other) which says that the Constitution requires law enforcement officers to use all feasible alternatives to avoid a situation where deadly force can justifiably be used...there is no constitutional duty to use non-deadly alternatives first.”
It should be emphasized that Tennessee v. Garner did not nullify fleeing felon laws; in fact, it upheld the constitutionality of shooting fleeing felons in certain scenarios. It did, however, prohibit the use of deadly force in property crime situations where there is no imminent threat to the officer or others.
Finally, most states today still have some form of statute that allows for the use of deadly force to stop a fleeing felon in accordance with the Garner case. Many of these statutes include wording taken verbatim from the 1985 decision.