The Fleeing Felon Rule Defined
The Fleeing Felon Rule is a legal doctrine that allows law enforcement officers to use deadly force under certain circumstances to apprehend a fleeing suspect. Stemming from common law and the Fourth Amendment’s "exclusionary rule," which generally prohibits law enforcement from using physical force to seize or detain a person without probable cause, the modern Fleeing Felon Rule developed in the 1980s. At the time, the U.S. Supreme Court was reluctant to explicitly decide whether the Fourth Amendment permits the use of deadly force to apprehend fleeing and allegedly dangerous felons. The Court ultimately resolved the question in Tennessee v. Garner, 471 U.S. 1 (1985), holding the mere possibility of a threat to an officer or bystander’s safety is not enough to justify deadly force. (But see also Graham v. Connor, 490 U.S. 386 (1989) (the objective reasonableness of an officer’s actions must be determined based on the totality of the circumstances; thereby partially calling into question the value of Tennessee v. Garner).)
Tennessee v. Garner involved a police officer’s shooting of a fleeing juvenile who allegedly had broken into a residence. The 15-year-old victim, Edward Garner, was running away from the officer when the officer shot him as he attempted to jump over the house’s fence . The remaining facts are not undisputed. Some accounts indicate that the officer shot Garner under a warrant allowing him to "arrest any person without a warrant as authorized by Tennessee law," while other accounts note that there was no arrest warrant in place. For example, at the time of the shooting, the officer had no indication that Garner had been armed with a weapon, and Garner did not pose a risk of injury to him or anyone else, other than himself.
The Fourth Circuit held that Tennessee’s "fleeing felon" law, which permitted officers to "use all the necessary means to effect the arrest," was unconstitutional on its face for failing to require officers to show that suspects posed an immediate danger to law enforcement or the public before using deadly force. The U.S. Supreme Court agreed, finding such a use of deadly force unconstitutionally excessive.
Tennessee v. Garner applied the objective analysis embodied in the Supreme Court’s recent Fourth Amendment jurisprudence, which deemed that only extreme factual situations would justify the use of deadly force under the Fourth Amendment. On such factual grounds, Garner held, the officer acted unreasonably, was not entitled to qualified immunity, and the victim’s parents could maintain civil rights claims under 42 U.S.C. § 1983.
Legal Rationale for the Fleeing Felon Rule
As mentioned previously, the United States Supreme Court has long held the belief that while the use of deadly force against a fleeing felon in not an unreasonable seizure under the Fourth Amendment, the rule is more-developed based on the factual circumstances of each case. It is also important to note the limitations placed on its use.
In Roberts v. Ray, 1990, a federal appeals court upheld the application of deadly force against a suspect who was attempting to run down a police officer in a chase. The court noted in passing that the police had the right to use deadly force when "the suspect poses a significant threat of death or serious physical injury to the officers or others."
What does subjectively "pose a significant threat of death"?
This has been a point of contention with law enforcement officials. Earlier, the Court noted that it would not make sense to require an officer to wait until the firing had begun, and the suspect’s gun was drawn before a suspect can be stopped by deadly force. (Scott, supra, at 206)
That said, the Court held in Tennessee v. Garner that police officers could not shoot a nonviolent felon fleeing in a stolen car. It is worth noting that the Court did not find the rule debilitating to law enforcement, because it allows special justification for law enforcement if the suspect is "armed and dangerous."
The Fourth Amendment presidential standard requires police officers to act reasonably before using deadly force. The police may not use deadly force against unarmed individuals or those suspected of non-violent crimes (Roberts).
Supreme Court Decisions and their Relation to the Fleeing Felon Rule
Two key Supreme Court rulings have narrowed the application of the "fleeing felon" rule for police officers. In Tennessee v. Garner, the Supreme Court held that police may not "seize" a suspect, even to prevent an escape, unless an officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to others. In California v. Hodari D., the Supreme Court ruled that police may seize a suspect only if they have probable cause to arrest them, a standard that generally requires knowledge of facts indicating the suspect has committed a past offense.
These decisions have important implications for police officers and their liability for wrongful death. Police are not allowed to aim a gun unless they have information a suspect is armed and immediately dangerous.
Controversy Surrounding the Fleeing Felon Rule
Critics of the fleeing felon rule, and opponents to its many state adoptions, have raised concerns on a human rights basis. Many feel that the rule is offensive, and operates as a "shoot first" policy. It has also been characterized as a "badge of dishonor," with officers fearing that if they do not apprehend a fleeing felon, they will be marked by the stigma of a job poorly done.
In state v. McCoy, 581 P.2d 934 (Kan. 1978), the case that ultimately codified the fleeing felon rule into the Kansas Revised Statutes, the Supreme Court of Kansas noted that the rule’s application did not rise to the level of an "officer-imposed death penalty," but that it did create an unlawful situation in which a suspect must decide between flight and his own life. There is a valid concern that apprehension of a suspect may be the result of sheer chance that there is sufficient distance between the suspect and the officer. An officer may lack the physical strength to capture easily a fleeing suspect who is less than a foot taller or more than 25 pounds heavier. Even in the case of properly equipped officers, it may take a second unit longer to arrive, giving a fleeing suspect too great an advantage for safe capture.
Based originally on the concept of prevention of escape, the fleeing felon rule has its basis in two U.S. Supreme Court decisions. See Fowler v. Benson, 1899, 122 U.S. 178; Tennessee v. Garner, 471 U.S. 1 (1985). The Tennessee Code Committee has adopted this definition into law, despite its original purpose being to intimidate and overpower robbery suspects.
Proponents of the rule argue that the problem arises from the definition. "Fleeing" does not necessarily mean running. The statute could easily allow an officer to take any reasonable steps to apprehend the felon, including verbal warnings. It is only when the felon resists arrest that use of force would be reasonable and justifiable .
Thus confusion remains over both the "fleeing" definition of the rule and the use of fatal means. A suspect does not need to be actually fleeing at the time of apprehension. The mere fact that he is wanted creates a reasonable suspicion. It is not necessary, once the officer has viewed a suspect committing a felony, to allow him to gain distance before apprehending him. In addition to the requirements of probable cause, the majority of states require a demand for the suspect to halt before use of deadly force.
While the adopting states vary in their requirements for which felonies the rule applies to, case law from various jurisdictions provides clarity. Much revolves around the definition of a "violent felony." Not all second degree felons actually result as inherently violent crimes. As a result, difficulty in even viewing a suspect as violent can lead to public and media outcry.
A few such cases: In 1999, two 17-year-old Tennessee state troopers confronted a man in his home after an anonymous tip called in a burglary in progress. The suspect fled through a field, but was stopped by an officer before he reached his fence. Officers set down their weapons and demanded he lay on his stomach. The man instead sat on an overturned barrel. Officers again used weapons, forcing him onto his back. The suspect then fled again, at which point he was shot in the back by the officer. Both sides of the rule have found it troublesome, and legislators instead opted to amend the statute in favor of retreat options. The man spent 30 days in recovery and $104,000 to pay for his living expenses in the year following his injury.
Such situations arise more often than one might think. Even in a state whose statutory countenances the situation, the ensuing fallout may markedly impact the city that enacted the statute.
Proposed Reforms to the Fleeing Felon Rule
In light of the many criticisms of the fleeing felon rule, states have been looking for other ways to solve the problem. One effort at reform has been the addition of "reasonable belief" statutory language to use-of-force laws. For example, in November 2012, the New Jersey legislature amended its state statute governing the use of deadly force by police. The change made it possible for officers to use deadly force when a suspect was "about to inflict or has inflicted serious bodily injury." While the new language the New Jersey statute is vague, it does move away from the all-or-nothing standard of "imminent threat."
Some equipment manufacturers have begun to develop alternative technological solutions to address situations that would create a potential "fleeing felon" scenario. One such device is a projectile net that can be shot from an officer’s vehicle. The net then envelops the fleeing car and forces it to come to a stop by both severely limiting the car’s ability to move sideways and immobilizing the tires. Though not without [other] potential issues, such alternatives show that there are other ways to deal with the problems created by the "fleeing felon" rule.
The Supreme Court also has found more room for state legislatures to regulate police conduct. In Tennessee v. Garner, the Court left open the possibility that states might enact their own laws surrounding police use of force. It explained:
Thus, although it may be reasonable for police to seize an unarmed, nondangerous suspect by deadly force in some circumstances, the Court is not inclined to lay down a categorical approach which will govern every case.
After the decision in Garner, many states disallowed the use of deadly force to apprehend non-dangerous subjects. This apportionment of authority marks a significant shift in the focus of the issue. States that have implemented this type of prohibition should continue to play a larger and larger role in both transforming the standards for use of deadly force and eliminating the need for the rule.
Impact of the Fleeing Felon Rule on Law Enforcement and Community Relations
Law enforcement agencies across the country have had to revisit the fleeing felon rule in light of evolving case law. The Supreme Court cases of Tennessee v. Garner and Graham v. Connor set constitutional parameters for the use of deadly force in apprehending fleeing felons. Agnoletti, quoting T.H. Tegels, notes: "That allowed us to refocus our effort on the issues that the Tennessee and Graham cases identified as necessary." But, more than that, in the years since, "It’s made us more responsive to the other needs in the community;" Justice Garzoni of the Omaha police department observed.
While courts have not invalidated any fleeing felon law, many legal experts now acknowledge its practical merits are few. "The critical issue for detention officers is whether the use of deadly force is necessary. ‘Necessary’ is a higher standard than an officer’s mere belief that a use of deadly force is necessary," according to Dr. Louise Reuter of the University of Colorado School of Nursing. In the years since Forrester v. City of San Diego, serious efforts have been made to provide officers with training, education, and continuing education opportunities that "extend[] beyond the classroom into training practices on the range and in simulated environments where [officers] can hone their judgment and the mental processes that drive them to say yes or no to deadly force."
In the Chicago area, police have followed the letter of Graham to limit the use of deadly force. However, according to Dave Savini of CBS2 Chicago, this has not necessarily borne positive effects. "Chicago police officers don’t even pull their guns in nearly half of all encounters captured by police cameras. They simply de-escalate face-offs with suspects . " Chicago police say it’s a good thing; public safety advocates, however, call it negligent. "They’re not chasing in part because they don’t have the manpower and resources," says attorney Anita Alvarez. "So they’re saying we’ll just de-escalate, well that’s a fancy way of saying never chase."
Realizing that the "siren song of a gunfight" is irresistible to some officers, "Independence Loss Prevention" of Virginia set out to provide advanced training against the warning signs of officers that might not have the wherewithal to be out on the street. It points out the potential for escalation when "an officer appears to act out of character, runs at a faster pace than their partner or the people they’re pursuing, [or] speaks in an agitated manner." Officers who exhibit these behaviors "are more likely to draw their weapon and perhaps encounter a situation where they end-up injuring themselves or those around them." Since conventional academy training does not teach self-awareness, these psychosocial identifiers of impending danger to others has become critical for officers and their partners.
The liability risks of apprehending fleeing felons have also prompted police departments to adapt their policies and procedures to reflect the standard set by Garner; namely that an officer may use deadly force only if he or she has probable cause to believe that the subject poses a significant threat of death or serious physical injury to the officer or others. Indeed, in a recent Federal District Court case, the judge held that: While there will always be criticism in tracking an offender, officers will be safer in the knowledge that they are acting in compliance with the standards of the day.