date may 1, aos. 63-1035, u3-1070 - archives

MemoranGum

Subiect MTermhis Police Departmenat v. Garner, Date May 1, 19U4Aos. 63-1035, U3-1070

The Solicitor GeneralFrom Samuel A. Alito

TIME

The brief for petitioners-appellants (the Memphis PoliceDepartment and the State of Tennessee) is due (with a 30-dayextension) ondue on July 5

, 1984. The brief for respondent-appellee is

RECOMMENDATIONS

The Criminal Division recommends against amicuspartici'pation. The Office of Legal Policy recommends that arnicusparticipation be seriously considered.

While I believe that the decision below is wrong, Irecommend against amicus participation.

Reproduced from the Holdings of theNational Archives and Records AdministrationRecord Group 60, Department of JusticeFiles of the Deputy Assistant Attorney General,Charles Cooper, 1981-1985Accession #060-89-216, Box 19Folder: Memphis Police v. Garner, 1984

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DISCUSSION

I. This case arises out of tie shooting of a 15 year oldboy who broke into a house at night and stole some ten dollarsworth of money and jewelry. Police arrived at the scenie,identified themselves and commanrded the burglar to halt. When hefailed to do so, an officer, who could see that his target was ayouth who did not appear to be armed, fired a 38-caliber hollowpoint round, killing the suspect. I'he officer's action wasprotected by the Tennessee fleeins felon statute, wvihich inaccordance withi the common law rul-, permits the use of deadlyforce to prevent the escape of a fe-ony suspect. The decedent'sfather sued the city of Memphis and the officers individuallyunder 42 U.S.C. 1983, seeking damaL-es for the deprivation of hisson's constitutional rights. The Xstrict court dismissed thecase against the officers on the ground of qualified immunity andheld that the Tennessee statute was not unconstitutional on itsface or as applied.

The court of appeals reversed the judgment in favor of thecity. Garner v. Memphis Police Dept., 710 F.2d 240 (6th Cir.1983). The court held that the shooting constituted anunreasonable seizure under the Fourth Amendment (id. at243-248). The court noted (id. at 243-244) that the common lawrule developed at a time when there were few felonies and allwere capital offenses. Thus, the court observed (id. at 244):"The killing of a fleeing felon merely accelerated the time ofpunishment." Today, the court stated (ibid.), with theproliferation of non-capital felonies, adherenice to the commonlaw rule permits a police response that is "out of proportion tothe danger to the community." Under the Fourth Amendment thecourt held (id. at 246), the following rule applies:


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Before taking the drastic measure ofusing deadly force as a last resort against afleeing suspect, officers should have probablecause to believe not simply that the suspecthas committed some felony. They should haveprobable cause also to believe that thesuspect poses a threat to the safety of theofficers or a danger to the community if leftat large. The officers may be justified inusing deadly force if the suspect hascommitted a violent crime or if they haveprobable cause to believe that he is armed orthat he will endager the physical safety ofothers if not captured.

The court recognized (id. at 247) that this is precisely the samerule contained in Model Penal Code § 3.07(2)(b) (ProposedOfficial Draft 1962). The court also held (710 F.2d at 246-247)that the same rule was required by substantive due process.

Finally, the court held (id. at 248-249) that, despite thecity's reliance on the state statute, the city was not entitledto immunity under Owen v. City of Independence, 445 U.S. 622(1980). Supreme Court review of this question has riot beensought.

II. In my judgment, the court of appeals' decision is wrongand should be reversed.

A. Fourth Amendment. 1. Was there a seizure? In thefirst place, I am not sure that the shooting of a fleeing felonysuspect should be analyzed as a "seizure." To be sure, a seizurefor Fourth Amendment purposes is usually defined as restraintupon a person's freedom of mnovement by means of physical force orshow of authority (see, e.g., United States v. Mendenhall, 446U.S. 544, 553 (1980)), and killing is undoubtedly "the mnostdecisive way to make sure that the suspect does not 'walk away'"(710 F.2d at 243). But what the court found objectionable herewas not the fact that the suspect was prevented from fleeing; itis undisputed that a seizure by non-deadly means would have beenjustified. The court objected to the officer's conduct onlyinsofar as he went furthier and killed the suspect.


If after taking a suspect into custody, an officer murderedhim on the way to the station houz- . , would that killing be anunreasonable seizure on the ground hliat it permanently interferedwith the suspect's freedom of movem-ent? What if an officer wentberserk and shot people on the street?

The court of appeals' construcvion would produce a novelresult. It would mean that there are some "seizures" that arealways improper no matter how much probable cause the officerpossesses.

In short, I question whether vhe Fourth Amendment'sprohibition of unreasonable seizures goes beyond establishing thestandard for taking suspects into ,Istody or imnposing lesserrestraints upon their freedom of m_'- ement. The proposition thatthe Fourth Amendment defines the circumstances in which homicideis justifiable--and that is what is involved here--strikes me asdubious.

This construction finds historical support in the fact thatthe common law rule was universally accepted at the time of theadoption of the Fourth Amendment. And contrary to the court ofappeals' suggestion, it is untrue that there were then only a fewfelonies, all of which were punishable by death. This is wellillustrated by the penal statute enacted by the First Congress,which created felonies in addition to those recognized at commonlaw and made most felonies punishable by a term of imprisonmentrather than by death. See Act of April 30, 1790, ch. IX, 1 Stat.112.

Having expressed my doubts about whether the shooting of afleeing felony supsect should be analyzed as a "seizure," I mustacknowledge that the contrary argumnent bas considerable force.The shooting of a fleeing felony suspect, unlike the otherexamples of police homicide noted above, is done for the purposeof taking the, suspect into custody and thus resembles otherseizures. Andssinice there are unldoubtedly searchles that would beunreasonable despite the presence of overwhelming probable cause-e.g., a life-thareatening operation to remnove a bullet or other

Reproduced from the Holdings of theNational Archives and Records AdministrationRecord Group 60, Department of JusticeFiles of the Deputy Assistant Attorney General,Charles Cooper, 1981-1985Accession #060-89-216, Box 19 XFolder: Memphis Police v. Gamer, 1984

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evidencel/--the Court may conclude that the same is true forseizures.

2. Was the shooting unreasonable? Assuming arguendo thatthe shooting was a seizure, the question is whether it wasreasonable. (It should be noted that the issue is not whetherevery use of deadly force authorized by the Tennessee statutewould be reasonable; there is no overbreadth analysis in FourthAmendment law.2/

a. Here again, I think that the universally accepted rulein 1790 is highly relevant, if not dispositive. Such argumentshave sometimes persuaded the Court. See United States v.Villamcnte-1arquez, No. 81-1350 (June 17, 1983), slip op. 5-7(passage of statute by same Congress that proposed adoption ofBill of Rights is strong evidence of reasonableness); UnitedStates v. Ramsey, 431 U.S. 606, 617 (1977) (samne). Compare -Steagald v. United States, 451 U.S. 204, 217 (1981) ("The commonlaw may, within limits, be instructive in determining what sortsof searches the Framers of the Fourth Amendment regarded asreasonable."); Payton v. New York, 445 U.S. 573, 591 (l980).

b. If the lineage of the Tennessee statute is notsufficient to demonstrate the constitutionality of the shootingin this case, there are additional persuasive reasons why thecourts should not attempt to develop an alternativeconstitutional rule more stringent than that of the common law.Judicial restraint is stroIlgly counselled, it seems to me,because here is no single principle that can be used to judgewhen it is justified to use deadly force to stop a fleeingsuspect. Instead, all such rules are based upon difficult moral

1/ The Court has granted certiorari in a case involving thequestion whether non-life-threatening surgery to remove a bulletfrom a criminal suspect is an unreasonable search despite thepresence of probable cause. Lee v. Winston, No. 83-1334, cert.granted April 16, 1984.

2/ It shiould also be noted, as pointed out in Jones v. Marshall,528 F.2d 132, 137-138 (2d Cir. 1975), that the state statute isof only incidental irpportanrice in determining what constitutes aviolation of the Fourth Amendment and which privileges andinnunities are available in a Section 1983 suit.


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and philosphical choices and a balancing of values that ispeculiarly suited for legislative rather than judicialresolution. As the Second Circuit ,.rote in upholdingConnecticut's fleeing felon statute, which also embodied thecommnon law rule: "This would seem peculiarly to be one of thoseareas whrere some room must be left Co the individual states toplace a higher value on the interest * * * of peace, order, andvigorous law enforcement, thanr on t;e rights of individualsreasonably suspected to have engaged in the commission of aserious crim,e" (Jonres v. Marshall, 526 F.2d 132, 137-136 (2d Cir.1975) (per Oakes, J.)).

In this case, the court of appeals simply adopted the ModelPenal Code rule as the constitutional standard without inquiringwhether other formulations might nov be equally reasonable.There is nothing to suggest that t-.e Model Penal Code rule wasmeant to be a constitutional standard. But assuming withi theSixth Circuit that the American Law Institute speaks with thevoice of the Fourth Amendment, one shlould note that over theyears the ALI has not only changed its position on the fleeingfelon rule (and not always in the airection of leniency towardthe suspect) but has simultaneously espoused different rules indifferent projects. As the court of appeals noted, the ModelPenal Code provides that a police officer is not criminallyresponsible for the use of deadly force against a fleeing suspectif

(i) the arrest is for a felony, and * * *(iii) the actor believes that the forceemployed creates no substantial risk of injuryto innocent persons; and (iv) the actorbelieves that (1) the crimne for which thearrest is mnade involved conduct including theuse or threatened use of deadly force; or(2) there is a substantial risk that theperson to be arrested will cause death orserious bodily harm if his apprehension isdelayed.

By contrast, the Restatement (Second) of Torts ~ 131 (1965),adopts the common law rule and expiains (Comment g at 235-236):

It is important that those wlho are attemrnptingto protect the public interest by arrestilngserious offenders knrow with reasonable


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certainty the means which they are privilegedto employ. To this end, it is important thattihe extent of force which may be used shall bedetermined by the general character of theoffense, which is capable of being known withreasonable certainly.

Because tlhis provision concerns the circumstances in which anarresting office may be civilly liable, whereas the Mode~ PenalCode concertns criminal responsibility, this contrast isl'particularly striking. -

It is also apparent that the ALI did not arrive at this rulewithout seriously considering the alternatives. The firstRestatement of Torts ~ 131 (1934) permitted the use of deadlyforce if

(a) the arrest is made for treason or-for afelony which normally causes or threatensdeath or serious bodily harm, or whichinvolves the breaking and entry of adwelling place, and

(b) the actor reasonably believes that thearrest cannot otherwise be affected.

(Since the suspect in the present case was reasonably believed tohave committed a burglary of a dwelling, the shooting would havebeen justified under this standard.) In 1948, the ALI repealedthe rule contained in the first Restatement and adopted thepresent rule.

The commentary on the Model Penal Code rule also illustratesthe complexity of the problem and the wide range of reasonablesolutions. The commentary reveals that one of the first reformproposals considered by the ALI was a provision listing thefelonies thought to be sufficiently serious to justify the use ofdeadly force (Model Penal Code, Tent. Draft No. 8 § 3.07 at 58(195b)). This proposal was rejected because it was felt that a"sufficiently comprehensive" list could not be compiled andbecause "knowledge that the person has cormnitted a Lparticularjfelony * * * does not reveal enough about the person's actualcharacter and disposition."

Reproduced from the Holdings of theNational Archives and Records AdministrationRecord Group 60, Department of JusticeFiles of the Deputy Assistant Attorney General,Charles Cooper, 1981-1985Accession #060-89-216, Box 19Folder: Memphis Police v. Gamer, 1984

Another alternative, proposec by Professor Henry Hart of theAdvisory Committee, would have pernitted the use of deadly forceif kid. at 60):

(iv) Postponement of the arrest until itcan be made with less ris. of death or seriousbodily harm would be con-tary to the publicinterest for one or more of the followingreasons:

First, because the (,:ficer is executing awarrant of arrest which there is no reason tobelieve can be executed with materially lessdanger of death or serious bodily harm at alater time; or

Second, because the Herson to be arrestedis known to the officer to have a record ofconviction of one or more crimes evidencing alawless readiness to take human life orinflict serious bodily ilnjury wilfully, or ahistory of association with such persons; or

Third, because there is serious risk thatthe person to be arrested will cause death orserious bodily harm unless apprehended; or

Fourth, because there is serious doubtthat the person to be arrested can beidentified if he escapes, and the crime forwhich the arrest is made or attempted involvedconduct evidencing a lawless readiness to takehuman life or inflict serious bodily hlarm.

This rule was rejected (wisely, I think) as far too complicated(id. at 60).

Professor Johln Barker Waite of the University of MichiiganLaw School provided the following cogent defense of the commonlaw rule (id. at 60-62):

I am conrvinced that ontly through trulyeffective power of arrest can law besatisfactor,ily enforced. Obviously untilviolators are brought before the courts the


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law's sanctions cannot be applied to thera.But effectiveness in mrnaking arrests requiresmore than merely pitting the footwork ofpolicemen against that of suspectedcriminals. An English director of publicprosecutions once explained to me that theEnglish police had no need to carry pistolsbecause (1) no English criminal would think ofkilling a police officer, and (2) even if asuspected offender shlould outrun an officer inthe labyrinth of- London he could be foundeventually in Liverpool or Birmingham. As thedirector put it, if a man offends in his owndistrict everyone notices him.

None of this is true in this countrywhere fluidity of population and movement farexceeds anything anywhere in England. On thecontrary a suspect who eludes arrest whenfirst attempted, especially if he is a minoroffender, may not be arrested at all.

For this reason, I myself would carry oneprovision of this Article to its logicalextent, and eliminate others. The Article[Section 3.04(2)(a)(i)] denies a person beingarrested any privilege of resistance; he mustsacrifice his right of absolute freedom to thepublic necessities. I believe he should alsobe denied the privilege of flight. I wouldrequire not only his abstention from activeresistance, but also the even easierabstention from flight. His preclusion fromresistance is made effective by giving theofficer authority to use whatever force isneeded to overcome that resistance. I wouldmake the preclusion from flight effective bygiving the officer authority to utilizenecessary force there also.

It should be unnecessary to say that suchauthorization ought in either case belimited to situations where the character ofthe officer as an officer attempting arrest is


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clearly made known to the fugitive and the useof extreme force is a last resort. * * * *

If we pass Subsection (d) we say to thecriminal, 'You are foolisi. No matter whatyou hiave done are foolish if you submit toarrest. The officer dare not take the risk ofshooting at you. If you can outrun him,outrun him * * * * If yc- are faster than iheis you are free, and God -!ess you.' I feelentirely unwilling to 6iv- that benediction tothe modern criminal.

The standards discussed above illustrate the wide variety ofreasonable rules in this area. The-y also show, I believe, theconsiderations that underlie all sch rules and the process bywhich any such rule must be developed. To explain that process,I think, is to show that this is a field in which the judiciaryshould not intervene.

c. Any rule permitting the use of deadly force to stop afleeing suspect must rest on the general principle that the stateis justified in using whatever force is necessary to enforce itslaws. Assuming that a fleeing felony suspect is entirelyrational (obviously a doubtful assumption, but more on thatlater), what he is saying in effect is: "Kill me or alow me toescape, at least for now." If every suspect could evade arrestby putting the state to this choice, societal order would quicklybreak down.

Without the principle noted above, no other principle ofwhich I am aware will support any of the rules allowing tlaheshooting of a fleeing felony suspect. Protection of the officeror a third person from immediate harm cannot alone justify adifferent rule in this context thani in those situationrs in whichthe person against whom the deadly force is used is notfleeing. Likewise, protecting society from less imnediate harm--a factor in thrie Model Penal Code anid some other rules--obviouslycannot alone justify the use of deadly force. It is not settledwhether a dangerous suspect may constitutionally be denied bailpending trial; consequently, it can hardly be argued that hle maybe killed because the nature of his suspected crime (see 710 F.2dat 246; Model Penal Code i 3.07(2)`b)(1)), his criminal record(?rof. Hart's rule), or his associations (Prof. Hart's rule))provide reasonable grounds to believe that he is dangerous. Such


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considerations, as I said, cannot bear the weight of any fleeingfelon rule; they can merely reinforce its supporting principle.Tilus, ;he fact that a suspect seems likely, based on hissuspected crime, to commit violent crimes if allowed to go free,while not a permissible ground for denying bail under federalstatutes (see l1 U.S.C. 3146), was thought by the court ofappeals to be sufficient to tip the scale in favor of the use ofdeadly force if the suspect flees.

As noved, a fleeing suspect in effect states to thepolice: "Kill me or let me escape the legal process, at leastfor now." When a suspect puts the state to this choice in anopen, direct way--when he stands his ground and meets everyescalation in the use of force by the police--there is noquestion that the police mrnay employ deadly force if necessary.See IM4odel Penal Code ~ 3.04(2)(b)(iii)(2) (Proposed Offical Draft1962). In that situation, the principle that the state must beprepared to use whatever force is necessary to-enforce its lawais applied in undiluted form. Presumably this is because thesuspect's conduct openly and directly calls into question aprinciple on which orderly society relies. When the suspectflees, however, no such frontal challenge is evident, and theprinciple is relaxed by a variety of mitigating factors.

The chief of these is the lack of severity of the offense;even the common law rule does not permit the use of deadly forceto stop a suspected misdemeanant.3/ Other mitigating factors mayinclude the likelihood that the suspect can be captured withoutforce on another occasion, the chance that he fled out of panicor did not in fact comrmit any crime, and the possibility that hemistook the police for someone else. There are also limitingfactors, such as danger to bystanders, that are not directlyrelated to the suspect's conduct.

Any fleeing felon rule must also take into account importantpracticalities. The rule must be simple enough for an officer toapply in a split second and at a mrnoment of great stress. And anyrule must take into account the imnperfect knowledge of theofficer. For example, the officer may know that a potentially

3/ But even the Model Penal Code permits use of deadly forcewhere necessary to arrest a suspected rnisdemeanant who resistsarrest () 3.04(2)(b)('iii)(2)).


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dangerous felony was committed but not which felony (e.g., was ita simple burglary or also a murd, , assault, rape, or robbery?).

It seems to me that the process of valuing all of thesefactors and producing a rule is a t-sk for the state legislaturesand one for which the courts are singularly ill-suited.

d. Returning to the facts of thils case, I think theshooting can be justified as reaso:able within the meaning of theFourth Amendment. Many of the facts recited by thle court ofappeals (and repeated at the beginning of this mrnemo) seemessentially irrelevant. The suspecv's age (15) does not seemdeterminative, since teenage males are the most prone to commitviolent crimes. It is also not de;erminative that it was laterdiscovered that the suspect had ony11 stolen some property whilein the house. The officer had no ',ay of knowing precisely whatthe suspect had done, but the nighttime burglary of a residenceis an extremely serious crime that often leads to murder,assault, or rape. Finally, the use of hollow-point bullets is aseparate issue. The district court found that death would hiaveoccurred even if such bullets had not been used. Moreover, sincethe issue is whether the use of deadly force was justified, it isnot logically relevant that a particularly deadly form of forcewas employed. (I am not aware, for examnple, of any rule drawinga distinction between when the police may use a shotgun and whenthey may use a revolver.)

Boiled down to its essenrtials, the situation in this casewas the following. The officer saw an unarmed suspect fleeingfrom the scene of a type of felony that is not uncommonlyaccompanied by violence. If he shot, there was the chance thathe would kill a person guilty only of a simple breaking andentering; that is essentially what occurred. If he did notshoot, there was a chance that a murderer or rapist would escapeand possibly strike again. I do not think the Constitutionprovides an answer to the officer's dilemma. Reasonable peoplemight choose d-ifferently in this situation.

B. Substantive Due Process. This alternative basis for thecourt of appeals' decision amounts to little more than judicialfiat and is therefore even less supportable than the court'sFourth Amendment holding. Moreover, such a holding might havebroader ramnifications. Since the fleeing felon rule is part ofthe definition of un,lawful homiclde, if the present case weredecided on substantive due process grounds, it would amount to


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constitutional review of the elements of a crime--a novel andda---erous orecedent.

C. Imuosition of Punislmunent Without A Determination ofGuilt. Memoranda prepared by staff attorneys in the Civil RightsDivision contend that the common law fleeing felon rule anountsto the imiposition of punislhent prior to an adjudication of guiltand thus violates procedural due process. See Bell v. Wolfish,441 -U.S. 520, 535 (1979). This argument seems clearlyincorrect. If shooting a fleeing felony suspect is punisIment,as this argument holds, then such a suspect may never be shot.Deadly force could not be employed even under the circumstancesin which the court of appeals in this case and the Model PenalCode would allow its use. See Jones v. Marshall, 528 F.2d at136 n.9. The flaw in this argument is that the shooting is notpunishment under the criteria of Kennedy v. Mendoza-Martinriez, 372U.S. 144, 166-169 91969). Among other things, it has nothistorically been regarded as punishment (at least not for the-past few centuries) but as a means of arrest; and it is necessaryand appropriate to achieve that purpose, at least in thecircumstances here.

III. While I think that the decision below was wrong, Irecommend against amicus participation.

As Criminal points out, the federal interest is not great.Criminal has surveyed the federal law enforcement agencies andhas found that thley uniformly restrict the use of deadly force bytheir agents at least as strictly (and generally more strictly)then the court of appeals' rule. The FBI, for example, prohibits


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its agents from shooting a fleein- felon except in self-defeilseor to prevent immediate danger to others' lives.4/

OLP correctly points out that the government might want tochange these policies in the future- and that its options wouldthen be restricted by a Supreme Court decision affirming thecourt of appeals. However, the li-:elihooa thlat such a decisionwould have a practical effect on us does not seerm great. Asnioted, all of the federal agencies now have extremnely restrictivepolicies in this area; we have no't been informed of any proposalsto change the present policies; nc e of the agencies surveyed byCriminal expressed an interest in this case; and because of tahenature of the crimes investigated the federal agencies, a ruleregarding the use of deadly force .o stop a fleeing feloInysuspect is probably much less impo--ant to them than to state andlocal police. Due to our rather w;;a federal interest,participation might seem like inmedc- ing.

The extremely restrictive policies of the federal agenciesmilitate against participation for another reason. Highllightingthose policies might falsely under:-ine the state's and city's

4/ The Bureau of Prison's policy regarding the use of force toprevent escape is more permissive (see 5/9/84 OLP memo andattachment). However, that is in accord with even the ModelPenal Code rule. See Model Penal Code § 3.07(3) (ProposedOfficial Draft 1962):

(3) Use of Force to Prevent Escape fromCustody. The use of force to prevent theescape of an arrested person from custody isjustifiable when the force could justifiablyhave been employed to effect the arrest underwhich the person is in custody, except that aguard ;r other person is in custody, exceptthat a guard or other person authorized to actas a peace officer is justified in using anyforce, including deadly force, whlich hebelieves to be immediately necessary toprevent the escape of a pe'son from a jail,prison, or other institution for the detentionof persons chareed witha or convicted of acrime.


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case. The Court might wonder why state and local police cannotfollow the same rule as the federal agencies. In fact, there are.m.rF-av differences having to do with the nature of the crimesnvestigated (federal agents generally do not investigate streetcr:me) and the method of investigation (federal agents are niotusually called to the scene of an ongoing crime), but theexp-anation is not simple or easy and may not fully dispel the_~ -s.~ion mrade by the disparate rules.

i- conclusion, I would suggest that we provide the state andcity with the benefit of our ideas but that we not file our ownamicus brief.


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