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At about 10:45 p.m. two police officers 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. She told them she had heard glass breaking and that “they” or “someone” was breaking in next door. While one of the officers radioed the dispatcher to say that they were on the scene, the second officer went behind the house. He heard a door slam and saw someone run across the backyard. The fleeing suspect, the defendant, stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, the officer was able to see his face and hands. He saw no sign of a weapon, and, though not certain, was “reasonably sure” and “figured” that the defendant was unarmed. The officer testified he thought the defendant was 17 or 18 years old and about 5’5” or 5’7” tall. In fact, the defendant, an eighth-grader, was 15. He was 5’4” tall and weighed somewhere around 100 or 110 pounds. While the defendant was crouched at the base of the fence, the officer called out “police, halt” and took a few steps toward him. The defendant began to climb over the fence. Convinced that if he made it over the fence he would elude capture, the officer shot him. The bullet hit the defendant in the back of the head. The defendant later died at a hospital. In using deadly force to prevent the escape, the officer was acting under the authority of a state statute and pursuant to his department’s policy. The statute provided that “[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.” The department policy was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary. The defendant’s father brought suit under Title 42 U.S.C. § 1983, alleging, among other things, that his son’s Fourth Amendment rights had been violated by the use of deadly force in this situation.
Whether deadly force may be used to prevent the escape of an apparently unarmed suspected felon?
No. Deadly 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.
Whenever an officer restrains the freedom of a person to walk away, he has “seized” that person. Apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. To determine the constitutionality of a seizure a court 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. The “reasonableness” of a seizure depends on not only when a seizure is made, but also how it is carried out. 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, without considering 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. An officer may not seize an unarmed, non-dangerous suspect by shooting him dead. For this reason, the state statute was found to be unconstitutional insofar as it authorized the use of deadly force against such fleeing suspects.
It was not, however, unconstitutional on its face. Where an 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 threatened 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.
In this case, the officer could not reasonably have believed that the defendant – young, slight, and unarmed – posed any threat. Indeed, the officer never attempted to justify his actions on any basis other than the need to prevent an escape. While the defendant was suspected of burglary, this fact could not, without regard to the other circumstances, automatically justify the use of deadly force. The officer did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others.
471 U.S. 1, 105 S. Ct. 1694 (1985)
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