Tennessee v. Garner
471 U.S. 1 (1985)

Annotate this Case

U.S. Supreme Court

Tennessee v. Garner, 471 U.S. 1 (1985)

Tennessee v. Garner

No. 83-1035

Argued October 30, 1984

Decided March 27, 1985*

471 U.S. 1

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT

Syllabus

A Tennessee statute provides that, if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, "the officer may use all the necessary means to effect the arrest." Acting under the authority of this statute, a Memphis police officer shot and killed appellee-respondent Garner's son as, after being told to halt, the son fled over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being "reasonably sure" the suspect was unarmed and thinking that he was 17 or 18 years old, and of slight build. The father subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. § 1983 for asserted violations of his son's constitutional rights. The District Court held that the statute and the officer's actions were constitutional. The Court of Appeals reversed.

Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless 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. Pp. 497 U. S. 7-22.

Page 471 U. S. 2

(a) Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement. To determine whether such a seizure is reasonable, the extent of the intrusion on the suspect's rights under that Amendment must be balanced against the governmental interests in effective law enforcement. This balancing process demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. Pp. 471 U. S. 7-12.

(b) The Fourth Amendment, for purposes of this case, should not be construed in light of the common law rule allowing the use of whatever force is necessary to effect the arrest of a fleeing felon. Changes in the legal and technological context mean that that rule is distorted almost beyond recognition when literally applied. Whereas felonies were formerly capital crimes, few are now, or can be, and many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Also, the common law rule developed at a time when weapons were rudimentary. And, in light of the varied rules adopted in the States indicating a long-term movement away from the common law rule, particularly in the police departments themselves, that rule is a dubious indicium of the constitutionality of the Tennessee statute. There is no indication that holding a police practice such as that authorized by the statute unreasonable will severely hamper effective law enforcement. Pp. 471 U. S. 12-20.

(c) While burglary is a serious crime, the officer in this case could not reasonably have believed that the suspect -- young, slight, and unarmed -- posed any threat. Nor does the fact that an unarmed suspect has broken into a dwelling at night automatically mean he is dangerous. Pp. 471 U. S. 20-22.

710 F.2d 240, affirmed and remanded.

WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which BURGER, C.J., and REHNQUIST, J., joined, post p. 471 U. S. 22.

Page 471 U. S. 3

JUSTICE WHITE delivered the opinion of the Court.

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.

I

At about 10:45 p. m. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a "prowler inside call." Upon arriving at the scene, they saw a woman standing on her porch and gesturing toward the adjacent house. [Footnote 1] She told them she had heard glass breaking and that "they" or "someone" was breaking in next door. While Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house. He heard a door slam and saw someone run across the backyard. The fleeing suspect, who was appellee-respondent's decedent, Edward Garner, stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner's face and hands. He saw no sign of a weapon, and, though not certain, was "reasonably sure" and "figured" that Garner was unarmed. App. 41, 56; Record 219. He thought Garner was 17 or 18 years old and

Page 471 U. S. 4

about 5' 5" or 5' 7" tall. [Footnote 2] While Garner was crouched at the base of the fence, Hymon called out "police, halt" and took a few steps toward him. Garner then began to climb over the fence. Convinced that, if Garner made it over the fence, he would elude capture, [Footnote 3] Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his body. [Footnote 4]

In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to Police Department policy. The statute provides that

"[i]f, 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."

Tenn.Code Ann.

Page 471 U. S. 5

§ 40-7-108 (1982). [Footnote 5] The Department policy was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary. App. 140-144. The incident was reviewed by the Memphis Police Firearm's Review Board and presented to a grand jury. Neither took any action. Id. at 57.

Garner's father then brought this action in the Federal District Court for the Western District of Tennessee, seeking damages under 42 U.S.C. § 1983 for asserted violations of Garner's constitutional rights. The complaint alleged that the shooting violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. It named as defendants Officer Hymon, the Police Department, its Director, and the Mayor and city of Memphis. After a 3-day bench trial, the District Court entered judgment for all defendants. It dismissed the claims against the Mayor and the Director for lack of evidence. It then concluded that Hymon's actions were authorized by the Tennessee statute, which in turn was constitutional. Hymon had employed the only reasonable and practicable means of preventing Garner's escape. Garner had "recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon." App. to Pet. for Cert. A10.

The Court of Appeals for the Sixth Circuit affirmed with regard to Hymon, finding that he had acted in good faith reliance on the Tennessee statute, and was therefore within the scope of his qualified immunity. 600 F.2d 52 (1979). It remanded for reconsideration of the possible liability of the city, however, in light of Monell v. New York City Dept. of Social Services,436 U. S. 658 (1978), which had come down after the District Court's decision. The District Court was

Page 471 U. S. 6

directed to consider whether a city enjoyed a qualified immunity, whether the use of deadly force and hollow point bullets in these circumstances was constitutional, and whether any unconstitutional municipal conduct flowed from a "policy or custom" as required for liability under Monell. 600 F.2d at 54-55.

The District Court concluded that Monell did not affect its decision. While acknowledging some doubt as to the possible immunity of the city, it found that the statute, and Hymon's actions, were constitutional. Given this conclusion, it declined to consider the "policy or custom" question. App. to Pet. for Cert. A37-A39.

The Court of Appeals reversed and remanded. 710 F.2d 240 (1983). It reasoned that the killing of a fleeing suspect is a "seizure" under the Fourth Amendment, [Footnote 6] and is therefore constitutional only if "reasonable." The Tennessee statute failed as applied to this case, because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes -- "the facts, as found, did not justify the use of deadly force under the Fourth Amendment." Id. at 246. Officers cannot resort to deadly force unless they

"have probable cause . . . to believe that the suspect [has committed a felony and] poses a threat to the safety of the officers or a danger to the community if left at large."

Ibid. [Footnote 7]

Page 471 U. S. 7

The State of Tennessee, which had intervened to defend the statute, see 28 U.S.C. § 2403(b), appealed to this Court. The city filed a petition for certiorari. We noted probable jurisdiction in the appeal, and granted the petition. 465 U.S. 1098 (1984).

II

Whenever an officer restrains the freedom of a person to walk away, he has seized that person. United States v. Brignoni-Ponce,422 U. S. 873, 422 U. S. 878 (1975). While it is not always clear just when minimal police interference becomes a seizure, see United States v. Mendenhall,446 U. S. 544 (1980), there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.

A

A police officer may arrest a person if he has probable cause to believe that person committed a crime. E.g., United States v. Watson,423 U. S. 411 (1976). Petitioners and appellant argue that, if this requirement is satisfied, the Fourth Amendment has nothing to say about how that seizure is made. This submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of

Page 471 U. S. 8

the manner in which a search or seizure is conducted. To determine the constitutionality of a seizure,

"[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion."

United States v. Place,462 U. S. 696, 462 U. S. 703 (1983); see Delaware v. Prouse,440 U. S. 648, 440 U. S. 654 (1979); United States v. Martinez-Fuerte,428 U. S. 543, 428 U. S. 555 (1976). We have described "the balancing of competing interests" as "the key principle of the Fourth Amendment." Michigan v. Summers,452 U. S. 692, 452 U. S. 700, n. 12 (1981). See also Camara v. Municipal Court,387 U. S. 523, 387 U. S. 536-537 (1967). Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out. United States v. Ortiz,422 U. S. 891, 422 U. S. 895 (1975); Terry v. Ohio,392 U. S. 1, 392 U. S. 28-29 (1968).

Applying these principles to particular facts, the Court has held that governmental interests did not support a lengthy detention of luggage, United States v. Place, supra, an airport seizure not "carefully tailored to its underlying justification," Florida v. Royer,460 U. S. 491, 460 U. S. 500 (1983) (plurality opinion), surgery under general anesthesia to obtain evidence, Winston v. Lee,471 U. S. 753 (1985), or detention for fingerprinting without probable cause, Davis v. Mississippi,394 U. S. 721 (1969); Hayes v. Florida,471 U. S. 811 (1985). On the other hand, under the same approach it has upheld the taking of fingernail scrapings from a suspect, Cupp v. Murphy,412 U. S. 291 (1973), an unannounced entry into a home to prevent the destruction of evidence, Ker v. California,374 U. S. 23 (1963), administrative housing inspections without probable cause to believe that a code violation will be found, Camara v. Municipal Court, supra, and a blood test of a drunken-driving suspect, Schmerber v. California,384 U. S. 757 (1966). In each of these cases, the question was whether

Page 471 U. S. 9

the totality of the circumstances justified a particular sort of search or seizure.

B

The same balancing process applied in the cases cited above demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. 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. [Footnote 8] It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. Effectiveness in making arrests requires the resort to deadly

Page 471 U. S. 10

force, or at least the meaningful threat thereof. "Being able to arrest such individuals is a condition precedent to the state's entire system of law enforcement." Brief for Petitioners 14.

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, at 440 U. S. 659. 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, [Footnote 9] the presently available evidence does not support this thesis. [Footnote 10] The fact is that a majority of police departments

Page 471 U. S. 11

in this country have forbidden the use of deadly force against nonviolent suspects. See infra at 471 U. S. 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.

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

Page 471 U. S. 12

feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.

III

A

It is insisted that the Fourth Amendment must be construed in light of the common law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant. As stated in Hale's posthumously published Pleas of the Crown:

"[I]f persons that are pursued by these officers for felony or the just suspicion thereof . . . shall not yield themselves to these officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is no felony."

2 M. Hale, Historia Placitorum Coronae 85 (1736). See also 4 W. Blackstone, Commentaries *289. Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon. E.g., Holloway v. Moser, 193 N.C. 185, 136 S.E. 375 (1927); State v. Smith, 127 Iowa 534, 535, 103 N.W. 944, 945 (1905); Reneau v. State, 70 Tenn. 720 (1879); Brooks v. Commonwealth, 61 Pa. 352 (1869); Roberts v. State, 14 Mo. 138 (1851); see generally R. Perkins & R. Boyce, Criminal Law 1098-1102 (3d ed.1982); Day, Shooting the Fleeing Felon: State of the Law, 14 Crim.L.Bull. 285, 286-287 (1978); Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798, 807-816 (1924). But see Storey v. State, 71 Ala. 329 (1882); State v. Bryant, 65 N.C. 327, 328 (1871); Caldwell v. State, 41 Tex. 86 (1874).

Page 471 U. S. 13

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, 423 U. S. 418-419 (1976); Gersten v. Pugh,420 U. S. 103, 420 U. S. 111, 420 U. S. 114 (1975); Carroll v. United States,267 U. S. 132, 267 U. S. 149-153 (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, 445 U. S. 591, n. 33 (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

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. [Footnote 11]

"Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or

Page 471 U. S. 14

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, at 187, 136 S.E. at 376 (1927).

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 (1982); Coker v. Georgia,433 U. S. 584 (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, at 267 U. S. 158, 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. [Footnote 12]

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

Page 471 U. S. 15

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). [Footnote 13]

One other aspect of the common law rule bears emphasis. It forbids the use of deadly force to apprehend a misdemeanant, condemning such action as disproportionately severe. See Holloway v. Moser, 193 N.C., at 187, 136 S.E. at 376; State v. Smith, 127 Iowa at 535, 103 N.W. at 945. See generally Annot., 83 A.L.R. 3d 238 (1978).

In short, though the common law pedigree of Tennessee's rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied.

C

In evaluating the reasonableness of police procedures under the Fourth Amendment, we have also looked to prevailing

Page 471 U. S. 16

rules in individual jurisdictions. See, e.g., United States v. Watson, 423 U.S. at 423 U. S. 421-422. The rules in the States are varied. See generally Comment, 18 Ga.L.Rev. 137, 140-144 (1983). Some 19 States have codified the common law rule, [Footnote 14] though in two of these the courts have significantly limited the statute. [Footnote 15] Four States, though without a relevant statute, apparently retain the common law rule. [Footnote 16] Two States have adopted the Model Penal Code's

Page 471 U. S. 17

provision verbatim. [Footnote 17] Eighteen others allow, in slightly varying language, the use of deadly force only if the suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is likely to endanger life or inflict serious physical injury if not arrested. [Footnote 18] Louisiana and Vermont, though without statutes or case law on point, do forbid the use of deadly force to prevent any but violent felonies. [Footnote 19] The remaining States either have no relevant statute or case law or have positions that are unclear. [Footnote 20]

Page 471 U. S. 18

It cannot be said that there is a constant or overwhelming trend away from the common law rule. In recent years, some States have reviewed their laws and expressly rejected abandonment of the common law rule. [Footnote 21] Nonetheless, the long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States.

This trend is more evident and impressive when viewed in light of the policies adopted by the police departments themselves. Overwhelmingly, these are more restrictive than the common law rule. C. Milton, J. Halleck, J. Lardner, & G. Abrecht, Police Use of Deadly Force 45-46 (1977). The Federal Bureau of Investigation and the New York City Police Department, for example, both forbid the use of firearms except when necessary to prevent death or grievous bodily harm. Id. at 40-41; App. 83. For accreditation by the Commission on Accreditation for Law Enforcement Agencies, a department must restrict the use of deadly force to situations where

"the officer reasonably believes that the action is in defense of human life . . . or in defense of any person in immediate danger of serious physical injury."

Commission on Accreditation for Law Enforcement Agencies, Inc., Standards for Law Enforcement Agencies 1-2 (1983) (italics deleted). A 1974 study reported that the police department regulations in a majority of the large cities of the United States allowed the firing of a weapon only when a

Page 471 U. S. 19

felon presented a threat of death or serious bodily harm. Boston Police Department, Planning & Research Division, The Use of Deadly Force by Boston Police Personnel (1974), cited in Mattis v. Schnarr, 547 F.2d 1007, 1016, n.19 (CA8 1976), vacated as moot sub nom. Ashcroft v. Mattis,431 U. S. 171 (1977). Overall, only 7.5% of departmental and municipal policies explicitly permit the use of deadly force against any felon; 86.8% explicitly do not. K. Matulia, A Balance of Forces: A Report of the International Association of Chiefs of Police 161 (1982) (table). See also Record 1108-1368 (written policies of 44 departments). See generally W. Geller & K. Karales, Split-Second Decisions 33-42 (1981); Brief for Police Foundation et al. as Amici Curiae. In light of the rules adopted by those who must actually administer them, the older and fading common law view is a dubious indicium of the constitutionality of the Tennessee statute now before us.

D

Actual departmental policies are important for an additional reason. We would hesitate to declare a police practice of long standing "unreasonable" if doing so would severely hamper effective law enforcement. But the indications are to the contrary. There has been no suggestion that crime has worsened in any way in jurisdictions that have adopted, by legislation or departmental policy, rules similar to that announced today. Amici note that,

"[a]fter extensive research and consideration, [they] have concluded that laws permitting police officers to use deadly force to apprehend unarmed, non-violent fleeing felony suspects actually do not protect citizens or law enforcement officers, do not deter crime or alleviate problems caused by crime, and do not improve the crime-fighting ability of law enforcement agencies."

Id. at 11. The submission is that the obvious state interests in apprehension are not sufficiently served to warrant the use of lethal weapons against all fleeing felons. See supra at 471 U. S. 10-11, and n. 10.

Page 471 U. S. 20

Nor do we agree with petitioners and appellant that the rule we have adopted requires the police to make impossible, split-second evaluations of unknowable facts. See Brief for Petitioners 25; Brief for Appellant 11. We do not deny the practical difficulties of attempting to assess the suspect's dangerousness. However, similarly difficult judgments must be made by the police in equally uncertain circumstances. See, e.g., Terry v. Ohio, 392 U.S. at 392 U. S. 20, 392 U. S. 27. Nor is there any indication that, in States that allow the use of deadly force only against dangerous suspects, see nn. 1517-19supra, the standard has been difficult to apply or has led to a rash of litigation involving inappropriate second-guessing of police officers' split-second decisions. Moreover, the highly technical felony/misdemeanor distinction is equally, if not more, difficult to apply in the field. An officer is in no position to know, for example, the precise value of property stolen, or whether the crime was a first or second offense. Finally, as noted above, this claim must be viewed with suspicion in light of the similar self-imposed limitations of so many police departments.

IV

The District Court concluded that Hymon was justified in shooting Garner because state law allows, and the Federal Constitution does not forbid, the use of deadly force to prevent the escape of a fleeing felony suspect if no alternative means of apprehension is available. See App. to Pet. for Cert. A9-A11, A38. This conclusion made a determination of Garner's apparent dangerousness unnecessary. The court did find, however, that Garner appeared to be unarmed, though Hymon could not be certain that was the case. Id. at A4, A23. See also App. 41, 56; Record 219. Restated in Fourth Amendment terms, this means Hymon had no articulable basis to think Garner was armed.

In reversing, the Court of Appeals accepted the District Court's factual conclusions and held that "the facts, as found, did not justify the use of deadly force." 710 F.2d at 246.

Page 471 U. S. 21

We agree. Officer Hymon could not reasonably have believed that Garner -- young, slight, and unarmed -- posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. The District Court stated in passing that "[t]he facts of this case did not indicate to Officer Hymon that Garner was nondangerous.'" App. to Pet. for Cert. A34. This conclusion is not explained, and seems to be based solely on the fact that Garner had broken into a house at night. However, the fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others.

The dissent argues that the shooting was justified by the fact that Officer Hymon had probable cause to believe that Garner had committed a nighttime burglary. Post at 471 U. S. 29, 471 U. S. 32. While we agree that burglary is a serious crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force. The FBI classifies burglary as a "property," rather than a "violent," crime. See Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 1 (1984). [Footnote 22] Although the armed burglar would present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous. This case demonstrates as much. See also Solem v. Helm,463 U. S. 277, 463 U. S. 296-297, and nn. 22-23 (1983). In fact, the available statistics demonstrate that burglaries only rarely involve physical violence. During the 10-year period from 1973-1982, only 3.8% of all burglaries involved violent crime. Bureau of Justice Statistics, House

Page 471 U. S. 22

hold Burglary 4 (1985). [Footnote 23] See also T. Reppetto, Residential Crime 17, 105 (1974); Conklin & Bittner, Burglary in a Suburb, 11 Criminology 208, 214 (1973).

V

We wish to make clear what our holding means in the context of this case. The complaint has been dismissed as to all the individual defendants. The State is a party only by virtue of 28 U.S.C. § 2403(b), and is not subject to liability. The possible liability of the remaining defendants -- the Police Department and the city of Memphis -- hinges on Monell v. New York City Dept. of Social Services,436 U. S. 658 (1978), and is left for remand. We hold that the statute is invalid insofar as it purported to give Hymon the authority to act as he did. As for the policy of the Police Department, the absence of any discussion of this issue by the courts below, and the uncertain state of the record, preclude any consideration of its validity.

The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

* Together with No. 83-1070, Memphs Police Department et al. v. Garner et al., on certiorari to the same court.

[Footnote 1]

The owner of the house testified that no lights were on in the house, but that a back door light was on. Record 160. Officer Hymon, though uncertain, stated in his deposition that there were lights on in the house. Id. at 209.

[Footnote 2]

In fact, Garner, an eighth-grader, was 15. He was 5' 4" tall and weighed somewhere around 100 or 110 pounds. App. to Pet. for Cert. A5.

[Footnote 3]

When asked at trial why he fired, Hymon stated:

"Well, first of all it was apparent to me from the little bit that I knew about the area at the time that he was going to get away because, number 1, I couldn't get to him. My partner then couldn't find where he was because, you know, he was late coming around. He didn't know where I was talking about. I couldn't get to him because of the fence here, I couldn't have jumped this fence and come up, consequently jumped this fence and caught him before he got away because he was already up on the fence, just one leap and he was already over the fence, and so there is no way that I could have caught him."

App. 52.

He also stated that the area beyond the fence was dark, that he could not have gotten over the fence easily because he was carrying a lot of equipment and wearing heavy boots, and that Garner, being younger and more energetic, could have outrun him. Id. at 53-54.

[Footnote 4]

Garner had rummaged through one room in the house, in which, in the words of the owner, "[a]ll the stuff was out on the floors, all the drawers was pulled out, and stuff was scattered all over." Id. at 34. The owner testified that his valuables were untouched, but that, in addition to the purse and the 10 dollars, one of his wife's rings was missing. The ring was not recovered. Id. at 34-35.

[Footnote 5]

Although the statute does not say so explicitly, Tennessee law forbids the use of deadly force in the arrest of a misdemeanant. See Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938).

[Footnote 6]

"The right of the people to be secure in their persons . . . against unreasonable searches and seizures, shall not be violated. . . ." U.S.Const., Amdt. 4.

[Footnote 7]

The Court of Appeals concluded that the rule set out in the Model Penal Code "accurately states Fourth Amendment limitations on the use of deadly force against fleeing felons." 710 F.2d at 247. The relevant portion of the Model Penal Code provides:

"The use of deadly force is not justifiable . . . unless (i) the arrest is for a felony; and (ii) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a peace officer; and (iii) the actor believes that the force employed creates no substantial risk of injury to innocent persons; and (iv) the actor believes that (1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed."

American Law Institute, Model Penal Code § 3.07(2)(b) (Proposed Official Draft 1962).

The court also found that "[a]n analysis of the facts of this case under the Due Process Clause" required the same result, because the statute was not narrowly drawn to further a compelling state interest. 710 F.2d at 246-247. The court considered the generalized interest in effective law enforcement sufficiently compelling only when the the suspect is dangerous. Finally, the court held, relying on Owen v. City of Independence,445 U. S. 622 (1980), that the city was not immune.

[Footnote 8]

The dissent emphasizes that subsequent investigation cannot replace immediate apprehension. We recognize that this is so, seen 13, infra; indeed, that is the reason why there is any dispute. If subsequent arrest were assured, no one would argue that use of deadly force was justified. Thus, we proceed on the assumption that subsequent arrest is not likely. Nonetheless, it should be remembered that failure to apprehend at the scene does not necessarily mean that the suspect will never be caught.

In lamenting the inadequacy of later investigation, the dissent relies on the report of the President's Commission on Law Enforcement and Administration of Justice. It is worth noting that, notwithstanding its awareness of this problem, the Commission itself proposed a policy for use of deadly force arguably even more stringent than the formulation we adopt today. See President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Police 189 (1967). The Commission proposed that deadly force be used only to apprehend

"perpetrators who, in the course of their crime, threatened the use of deadly force, or if the officer believes there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if his apprehension is delayed."

In addition, the officer would have "to know, as a virtual certainty, that the suspect committed an offense for which the use of deadly force is permissible." Ibid.

[Footnote 9]

We note that the usual manner of deterring illegal conduct -- through punishment -- has been largely ignored in connection with flight from arrest. Arkansas, for example, specifically excepts flight from arrest from the offense of "obstruction of governmental operations." The commentary notes that this

"reflects the basic policy judgment that, absent the use of force or violence, a mere attempt to avoid apprehension by a law enforcement officer does not give rise to an independent offense."

Ark.Stat.Ann. § 41-2802(3)(a) (1977) and commentary. In the few States that do outlaw flight from an arresting officer, the crime is only a misdemeanor. See, e.g., Ind.Code § 35-44-3-3 (1982). Even forceful resistance, though generally a separate offense, is classified as a misdemeanor. E.g., Ill.Rev.Stat., ch. 38, 1131-1 (1984); Mont.Code Ann. § 45-7-301 (1984); N.H.Rev.Stat.Ann. § 642:2 (Supp.1983); Ore.Rev.Stat. § 162.315 (1983).

This lenient approach does avoid the anomaly of automatically transforming every fleeing misdemeanant into a fleeing felon -- subject, under the common law rule, to apprehension by deadly force -- solely by virtue of his flight. However, it is in real tension with the harsh consequences of flight in cases where deadly force is employed. For example, Tennessee does not outlaw fleeing from arrest. The Memphis City Code does, § 22-34.1 (Supp. 17, 1971), subjecting the offender to a maximum fine of $50, § 1-8 (1967). Thus, Garner's attempted escape subjected him to (a) a $50 fine, and (b) being shot.

[Footnote 10]

See Sherman, Reducing Police Gun Use, in Control in the Police Organization 98, 120-123 (M. Punch ed.1983); Fyfe, Observations on Police Deadly Force, 27 Crime & Delinquency 376, 378-381 (1981); W. Geller & K. Karales, Split-Second Decisions 67 (1981); App. 84 (affidavit of William Bracey, Chief of Patrol, New York City Police Department). See generally Brief for Police Foundation et al. as Amici Curiae.

[Footnote 11]

The roots of the concept of a "felony" lie not in capital punishment but in forfeiture. 2 F. Pollock & F. Maitland, The History of English Law 465 (2d ed.1909) (hereinafter Pollock & Maitland). Not all felonies were always punishable by death. See id. at 466-467, n. 3. Nonetheless, the link was profound. Blackstone was able to write:

"The idea of felony is indeed so generally connected with that of capital punishment that we find it hard to separate them; and to this usage the interpretations of the law do now conform. And therefore if a statute makes any new offence felony, the law implies that is shall be punished with death, viz. by hanging, as well as with forfeiture. . . ."

4 W. Blackstone, Commentaries *98. See also R. Perkins & R. Boyce, Criminal Law 14-15 (3d ed.1982); 2 Pollock & Maitland 511.

[Footnote 12]

White-collar crime, for example, poses a less significant physical threat than, say, drunken driving. See Welsh v. Wisconsin,466 U. S. 740 (1984); id. at 466 U. S. 755 (BLACKMUN, J., concurring). See Model Penal Code Comment at 57.

[Footnote 13]

It has been argued that sophisticated techniques of apprehension and increased communication between the police in different jurisdictions have made it more likely that an escapee will be caught than was once the case, and that this change has also reduced the "reasonableness" of the use of deadly force to prevent escape. E.g., Sherman, Execution Without Trial: Police Homicide and the Constitution, 33 Vand.L.Rev. 71, 76 (1980). We are unaware of any data that would permit sensible evaluation of this claim. Current arrest rates are sufficiently low, however, that we have some doubt whether, in past centuries, the failure to arrest at the scene meant that the police had missed their only chance in a way that is not presently the case. In 1983, 21% of the offenses in the Federal Bureau of Investigation crime index were cleared by arrest. Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 159 (1984). The clearance rate for burglary was 15%. Ibid.

[Footnote 14]

Ala.Code § 13A-3-27 (1982); Ark.Stat.Ann. § 41-510 (1977); Cal.Penal Code Ann. § 196 (West 1970); Conn.Gen.Stat. § 53a-22 (1972); Fla.Stat. § 776.05 (1983); Idaho Code § 19-610 (1979); Ind.Code § 35-41-3-3 (1982); Kan.Stat.Ann. § 21-3215 (1981); Miss.Code Ann. § 97-3-15(d) (Supp.1984); Mo.Rev.Stat. § 563.046 (1979); Nev.Rev.Stat. § 200.140 (1983); N.M.Stat.Ann. § 30-2-6 (1984); Okla.Stat., Tit. 21, § 732 (1981); R.I.Gen.Laws § 12-7-9 (1981); S.D.Codified Laws §§ 22-16-32, 22-16-33 (1979); Tenn.Code Ann. § 40-7-108 (1982); Wash.Rev.Code § 9A.16.040(3) (1977). Oregon limits use of deadly force to violent felons, but also allows its use against any felon if "necessary." Ore.Rev.Stat. § 161.239 (1983). Wisconsin's statute is ambiguous, but should probably be added to this list. Wis.Stat. § 939.45(4) (1981-1982) (officer may use force necessary for "a reasonable accomplishment of a lawful arrest"). But see Clark v. Ziedonis, 368 F.Supp. 544 (ED Wis.1973), aff'd on other grounds, 513 F.2d 79 (CA7 1975).

[Footnote 15]

In California, the police may use deadly force to arrest only if the crime for which the arrest is sought was "a forcible and atrocious one which threatens death or serious bodily harm," or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed. Kortum v. Alkire, 69 Cal.App.3d 325, 333, 138 Cal.Rptr. 26, 30-31 (1977). See also People v. Ceballos, 12 Cal.3d 470, 476-484, 526 P.2d 241, 245-250 (1974); Long Beach Police Officers Assn. v. Long Beach, 61 Cal.App.3d 364, 373-374, 132 Cal.Rptr. 348, 353-354 (1976). In Indiana, deadly force may be used only to prevent injury, the imminent danger of injury or force, or the threat of force. It is not permitted simply to prevent escape. Rose v. State, 431 N.E.2d 521 (Ind.App.1982).

[Footnote 16]

These are Michigan, Ohio, Virginia, and West Virginia. Werner v. Hartfelder, 113 Mich.App. 747, 318 N.W.2d 825 (1982); State v. Foster, 60 Ohio Misc. 46, 59-66, 396 N.E.2d 246, 255-258 (Com.Pl.1979) (citing cases); Berr v. Hamman, 203 Va. 596, 125 S.E.2d 851 (1962); Thompson v. Norfolk & W. R. Co., 116 W.Va. 705, 711-712, 182 S.E. 880, 883-884 (1935)

[Footnote 17]

Haw.Rev.Stat. § 703-307 (1976); Neb.Rev.Stat. § 28-1412 (1979). Massachusetts probably belongs in this category. Though it once rejected distinctions between felonies, Uraneck v. Lima, 359 Mass. 749, 750, 269 N.E.2d 670, 671 (1971), it has since adopted the Model Penal Code limitations with regard to private citizens, Commonwealth v. Klein, 372 Mass. 823, 363 N.E.2d 1313 (1977), and seems to have extended that decision to police officers, Julian v. Randazzo, 380 Mass. 391, 403 N.E.2d 931 (1980).

[Footnote 18]

Alaska Stat.Ann. § 11.81.370(a) (1983); Ariz.Rev.Stat.Ann. § 13-410 (1978); Colo.Rev.Stat. § 18-1-707 (1978); Del.Code Ann., Tit. 11, § 467 (1979) (felony involving physical force and a substantial risk that the suspect will cause death or serious bodily injury or will never be recaptured); Ga.Code § 16-3-21(a) (1984); Ill.Rev.Stat., ch. 38,

Official Supreme Court caselaw is only found in the print version of the United States Reports. Justia caselaw is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.