Tennessee v. Garner

Justice O’Connor,

with whom The Chief Justice and Justice Rehnquist join, dissenting.

The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to *23 apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the majority’s balancing of the interests of the suspect and the public interest in effective law enforcement. Ante, at 8. Notwithstanding the venerable common-law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante, at 14, 16-17, the majority concludes that Tennessee’s statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court’s reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent.

I-H

The facts below warrant brief review because they highlight the difficult, split-second decisions police officers must make in these circumstances. Memphis Police Officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was in progress at a private residence. When the officers arrived at the scene, the callér said that “they” were breaking into the house next door. App. in No. 81-5605 (CA6), p. 207. The officers found the residence had been forcibly entered through a window and saw lights *24 on inside the house. Officer Hymon testified that when he saw the broken window he realized “that something was wrong inside,” id., at 656, but that he could not determine whether anyone — either a burglar or a member of the household — was within the residence. Id., at 209. As Officer Hymon walked behind the house, he heard a door slam. He saw Edward Eugene Garner run away from the house through the dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. Officer Hymon thought Garner was an adult and was unsure whether Garner was armed because Hymon “had no idea what was in the hand [that he could not see] or what he might have had on his person.” Id., at 658-659. In fact, Garner was 15 years old and unarmed. Hymon also did not know whether accomplices remained inside the house. Id., at 657. The officer identified himself as a police officer and ordered Garner to halt. Garner paused briefly and then sprang to the top of the fence. Believing that Garner would escape if he climbed over the fence, Hymon fired his revolver and mortally wounded the suspected burglar.

Appellee-respondent, the deceased’s father, filed a 42 U. S. C. § 1983 action in federal court against Hymon, the city of Memphis, and other defendants, for asserted violations of Garner’s constitutional rights. The District Court for the Western District of Tennessee held that Officer Hymon’s actions were justified by a Tennessee statute that authorizes a police officer to “use all the necessary means to effect the arrest,” if “after notice of the intention to arrest the defendant, he either flee or forcibly resist.” Tenn. Code Ann. §40-7-108 (1982). As construed by the Tennessee courts, this statute allows the use of deadly force only if a police officer has probable cause to believe that a person has committed a felony, the officer warns the person that he intends to arrest him, and the officer reasonably believes that no means less than such force will prevent the escape. See, e. g., Johnson v. State, 173 Tenn. 134, 114 S. W. 2d 819 *25 (1938). The District Court held that the Tennessee statute is constitutional and that Hymon’s actions as authorized by that statute did not violate Garner’s constitutional rights. The Court of Appeals for the Sixth Circuit reversed on the grounds that the Tennessee statute “authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape” violates the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. 710 F. 2d 240, 244 (1983).

The Court affirms on the ground that application of the Tennessee statute to authorize Officer Hymon’s use of deadly force constituted an unreasonable seizure in violation of the Fourth Amendment. The precise issue before the Court deserves emphasis, because both the decision below and the majority obscure what must be decided in this case. The issue is not the constitutional validity of the Tennessee statute on its face or as applied to some hypothetical set of facts. Instead, the issue is whether the use of deadly force by Officer Hymon under the circumstances of this case violated Garner’s constitutional rights. Thus, the majority’s assertion that a police officer who has probable cause to seize a suspect “may not always do so by killing him,” ante, at 9, is unexceptionable but also of little relevance to the question presented here. The same is true of the rhetorically stirring statement that “[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” Ante, at 11. The question we must address is whether the Constitution allows the use of such force to apprehend a suspect who resists arrest by attempting to flee the scene of a nighttime burglary of a residence.

II

For purposes of Fourth Amendment analysis, I agree with the Court that Officer Hymon “seized” Garner by shooting him. Whether that seizure was reasonable and therefore permitted by the Fourth Amendment requires a careful bal *26 ancing of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual. United States v. Place, 462 U. S. 696, 703 (1983). In striking this balance here, it is crucial to acknowledge that police use of deadly force to apprehend a fleeing criminal suspect falls within the “rubric of police conduct . . . necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat.” Terry v. Ohio, 392 U. S. 1, 20 (1968). The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. Moreover, I am far more reluctant than is the Court to conclude that the Fourth Amendment proscribes a police practice that was accepted at the time of the adoption of the Bill of Rights and has continued to receive the support of many state legislatures. Although the Court has recognized that the requirements of the Fourth Amendment must respond to the reality of social and technological change, fidelity to the notion of constitutional— as opposed to purely judicial — limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when the Fourth Amendment was adopted are now constitutionally impermissible. See, e. g., United States v. Watson, 423 U. S. 411, 416-421 (1976); Carroll v. United States, 267 U. S. 132, 149-153 (1925). Cf. United States v. Villamonte-Marquez, 462 U. S. 579, 585 (1983) (noting “impressive historical pedigree” of statute challenged under Fourth Amendment).

The public interest involved in the use of deadly force as a last resort to apprehend a fleeing burglary suspect relates primarily to the serious nature of the crime. Household burglaries not only represent the illegal entry into a person’s home, but also “pos[e] real risk of serious harm to others.” Solem v. Helm, 463 U. S. 277, 315-316 (1983) (Burger, C. J., dissenting). According to recent Department of Justice statistics, “[t]hree-fifths of all rapes in the home, *27 three-fifths of all home robberies, and about a third of home aggravated and simple assaults are committed by burglars.” Bureau of Justice Statistics Bulletin, Household Burglary 1 (January 1985). During the period 1973-1982, 2.8 million such violent crimes were committed in the course of burglaries. Ibid. Victims of a forcible intrusion into their home by a nighttime prowler will find little consolation in the majority’s confident assertion that “burglaries only rarely involve physical violence.” Ante, at 21. Moreover, even if a particular burglary, when viewed in retrospect, does not involve physical harm to others, the “harsh potentialities for violence” inherent in the forced entry into a home preclude characterization of the crime as “innocuous, inconsequential, minor, or ‘nonviolent.’” Solem v. Helm, supra, at 316 (Burger, C. J., dissenting). See also Restatement of Torts §131, Comment g (1934) (burglary is among felonies that normally cause or threaten death or serious bodily harm); R. Perkins & R. Boyce, Criminal Law 1110 (3d ed. 1982) (burglary is dangerous felony that creates unreasonable risk of great personal harm).

Because burglary is a serious and dangerous felony, the public interest in the prevention and detection of the crime is of compelling importance. Where a police officer has probable cause to arrest a suspected burglar, the use of deadly force as a last resort might well be the only means of apprehending the suspect. With respect to a particular burglary, subsequent investigation simply cannot represent a substitute for immediate apprehension of the criminal suspect at the scene. See President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Challenge of Crime in a Free Society 97 (1967). Indeed, the Captain of the Memphis Police Department testified that in his city, if apprehension is not immediate, it is likely that the suspect will not be caught. App. in No. 81-5605 (CA6), p. 334. Although some law enforcement agencies may choose to assume the risk that a criminal will remain at large, the *28 Tennessee statute reflects a legislative determination that the use of deadly force in prescribed circumstances will serve generally to protect the public. Such statutes assist the police in apprehending suspected perpetrators of serious crimes and provide notice that a lawful police order to stop and submit to arrest may not be ignored with impunity. See, e. g., Wiley v. Memphis Police Department, 548 F. 2d 1247, 1252-1253 (CA6), cert. denied, 434 U. S. 822 (1977); Jones v. Marshall, 528 F. 2d 132, 142 (CA2 1975).

The Court unconvincingly dismisses the general deterrence effects by stating that “the presently available evidence does not support [the] thesis” that the threat of force discourages escape and that “there is a substantial basis for doubting that the use of such force is an essential attribute to the arrest power in all felony cases.” Ante, at 10, 11. There is no question that the effectiveness of police use of deadly force is arguable and that many States or individual police departments have decided not to authorize it in circumstances similar to those presented here. But it should go without saying that the effectiveness or popularity of a particular police practice does not determine its constitutionality. Cf. Spaziano v. Florida, 468 U. S. 447, 464 (1984) (“The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws”). Moreover, the fact that police conduct pursuant to a state statute is challenged on constitutional grounds does not impose a burden on the State to produce social science statistics or to dispel any possible doubts about the necessity of the conduct. This observation, I believe, has particular force where the challenged practice both predates enactment of the Bill of Rights and continues to be accepted by a substantial number of the States.

Against the strong public interests justifying the conduct at issue here must be weighed the individual interests implicated in the use of deadly force by police officers. The *29 majority declares that “[t]he suspect’s fundamental interest in his own life need not be elaborated upon.” Ante, at 9. This blithe assertion hardly provides an adequate substitute for the majority’s failure to acknowledge the distinctive manner in which the suspect’s interest in his life is even exposed to risk. For purposes of this case, we must recall that the police officer, in the course of investigating a nighttime burglary, had reasonable cause to arrest the suspect and ordered him to halt. The officer’s use of force resulted because the suspected burglar refused to heed this command and the officer reasonably believed that there was no means short of firing his weapon to apprehend the suspect. Without questioning the importance of a person’s interest in his life, I do not think this interest encompasses a right to flee unimpeded from the scene of a burglary. Cf. Payton v. New York, 445 U. S. 573, 617, n. 14 (1980) (White, J., dissenting) (“[T]he policeman’s hands should not be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement personnel”). The legitimate interests of the suspect in these circumstances are adequately accommodated by the Tennessee statute: to avoid the use of deadly force and the consequent risk to his life, the suspect need merely obey the valid order to halt.

A proper balancing of the interests involved suggests that use of deadly force as a last resort to apprehend a criminal suspect fleeing from the scene of a nighttime burglary is not unreasonable within the meaning of the Fourth Amendment. Admittedly, the events giving rise to this case are in retrospect deeply regrettable. No one can view the death of an unarmed and apparently nonviolent 15-year-old without sorrow, much less disapproval. Nonetheless, the reasonableness of Officer Hymon’s conduct for purposes of the Fourth Amendment cannot be evaluated by what later appears to have been a preferable course of police action. The officer pursued a suspect in the darkened backyard of a house that from all indications had just been burglarized. The *30 police officer was not certain whether the suspect was alone or unarmed; nor did he know what had transpired inside the house. He ordered the suspect to halt, and when the suspect refused to obey and attempted to flee into the night, the officer fired his weapon to prevent escape. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate nature of this particular case; instead, the question is whether it is constitutionally impermissible for police officers, as a last resort, to shoot a burglary suspect fleeing the scene of the crime.

Because I reject the Fourth Amendment reasoning of the majority and the Court of Appeals, I briefly note that no other constitutional provision supports the decision below. In addition to his Fourth Amendment claim, appellee-respondent also alleged violations of due process, the Sixth Amendment right to trial by jury, and the Eighth Amendment proscription of cruel and unusual punishment. These arguments were rejected by the District Court and, except for the due process claim, not addressed by the Court of Appeals. With respect to due process, the Court of Appeals reasoned that statutes affecting the fundamental interest in life must be “narrowly drawn to express only the legitimate state interests at stake.” 710 F. 2d, at 245. The Court of Appeals concluded that a statute allowing police use of deadly force is narrowly drawn and therefore constitutional only if the use of such force is limited to situations in which the suspect poses an immediate threat to others. Id., at 246-247. Whatever the validity of Tennessee’s statute in other contexts, I cannot agree that its application in this case resulted in a deprivation “without due process of law.” Cf. Baker v. McCollan, 443 U. S. 137, 144-145 (1979). Nor do I believe that a criminal suspect who is shot while trying to avoid apprehension has a cognizable claim of a deprivation of his Sixth Amendment right to trial by jury. See Cunningham v. Ellington, 323 F. Supp. 1072, 1075-1076 (WD Tenn. 1971) (three-judge court). Finally, because there is no indication that the use *31 of deadly force was intended to punish rather than to capture the suspect, there is no valid claim under the Eighth Amendment. See Bell v. Wolfish, 441 U. S. 520, 538-539 (1979). Accordingly, I conclude that the District Court properly entered judgment against appellee-respondent, and I would reverse the decision of the Court of Appeals.

HH ► — I i — i

Even if I agreed that the Fourth Amendment was violated under the circumstances of this case, I would be unable to join the Court’s opinion. The Court holds that deadly force may be used only 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.” Ante, at 11. The Court ignores the more general implications of its reasoning. Relying on the Fourth Amendment, the majority asserts that it is constitutionally unreasonable to use deadly force against fleeing criminal suspects who do not appear to pose a threat of serious physical harm to others. Ibid. By declining to limit its holding to the use of firearms, the Court unnecessarily implies that the Fourth Amendment constrains the use of any police practice that is potentially lethal, no matter how remote the risk. Cf. Los Angeles v. Lyons, 461 U. S. 95 (1983).

Although it is unclear from the language of the opinion, I assume that the majority intends the word “use” to include only those circumstances in which the suspect is actually apprehended. Absent apprehension of the suspect, there is no “seizure” for Fourth Amendment purposes. I doubt that the Court intends to allow criminal suspects who successfully escape to return later with §1983 claims against officers who used, albeit unsuccessfully, deadly force in their futile attempt to capture the fleeing suspect. The Court’s opinion, despite its broad language, actually decides only that the *32 shooting of a fleeing burglary suspect who was in fact neither armed nor dangerous can support a § 1983 action.

The Court’s silence on critical factors in the decision to use deadly force simply invites second-guessing of difficult police decisions that must be made quickly in the most trying of circumstances. Cf. Payton v. New York, 445 U. S., at 619 (White, J., dissenting). Police are given no guidance for determining which objects, among an array of potentially lethal weapons ranging from guns to knives to baseball bats to rope, will justify the use of deadly force. The Court also declines to outline the additional factors necessary to provide “probable cause” for believing that a suspect “poses a significant threat of death or serious physical injury,” ante, at 3, when the officer has probable cause to arrest and the suspect refuses to obey an order to halt. But even if it were appropriate in this case to limit the use of deadly force to that ambiguous class of suspects, I believe the class should include nighttime residential burglars who resist arrest by attempting to flee the scene of the crime. We can expect an escalating volume of litigation as the lower courts struggle to determine if a police officer’s split-second decision to shoot was justified by the danger posed by a particular object and other facts related to the crime. Thus, the majority opinion portends a burgeoning area of Fourth Amendment doctrine concerning the circumstances in which police officers can reasonably employ deadly force.

r — 1 <

The Court’s opinion sweeps broadly to adopt an entirely new standard for the constitutionality of the use of deadly force to apprehend fleeing felons. Thus, the Court “lightly brushe[s] aside,” Payton v. New York, supra, at 600, a longstanding police practice that predates the Fourth Amendment and continues to receive the approval of nearly half of the state legislatures. I cannot accept the majority’s creation of a constitutional right to flight for burglary sus *33 pects seeking to avoid capture at the scene of the crime. Whatever the constitutional limits on police use of deadly force in order to apprehend a fleeing felon, I do not believe they are exceeded in a case in which a police officer has probable cause to arrest a suspect at the scene of a residential burglary, orders the suspect to halt, and then fires his weapon as a last resort to prevent the suspect’s escape into the night. I respectfully dissent.