The Police

C. Use of Deadly Force

Since police use of force is often measured by its severity, deadly force is often analyzed as a separate category. It is estimated that each year, approximately 400 persons are killed by the police, and the issue becomes particularly problematic due to the widespread perception that minorities are more likely than white subjects to be killed by the police. Regardless of the research evidence that shows the threatening behavior of the suspect is the strongest indicator of police use of deadly force, the perception of racially biased or motivated killings by the police remains.

The authority to use deadly force can be traced to English common law, when police officers had the authority to use deadly force to apprehend any suspected fleeing felon (the “fleeing felon” doctrine). During this time period, the fleeing-felon doctrine was considered reasonable. First, all felonies were punishable by death in England, and second, defendants did not possess the rights or the presumption of innocence that they enjoy today. In 1985, the U.S. Supreme Court modified the fleeing-felon doctrine in the Tennessee v. Garner (1985) decision.

The landmark case of Tennessee v. Garner (1985) involved the use of deadly force against a fleeing felon: At approximately 10:45 on the night of October 3, 1974, a slightly built eighth grader, Edward Garner, unarmed and alone, broke a window and entered an unoccupied house in suburban Memphis with the intent of stealing money and property. Two police officers, Elton Hymon and Leslie Wright, responded to a call from a neighbor concerning a prowler. While Wright radioed dispatch, Hymon intercepted the youth as he ran from the back of the house to a 6-foot cyclone fence. After shining a flashlight on the youth who was crouched by the fence, Hymon identified himself and yelled at Garner to stop. Hymon observed that the youth was unarmed. As the boy jumped to get over the fence, the officer fired his service revolver at the youth, as he was trained to do. Edward Garner was shot because the police officers had been trained under Tennessee law that it was proper to kill a fleeing felon rather than run the risk of allowing him to escape.

A lawsuit filed by the family ended up reaching the U.S. Supreme Court. The underlying issue being decided by the Court was when and under what circumstances police officers can use deadly force. The Court held that the Tennessee statute was “unconstitutional insofar as it authorizes the use of deadly force against . . . unarmed, nondangerous suspect[ s]” (Tennessee v. Garner, 1985, p. 11). The Court cited with approval the Model Penal Code:

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 police 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 a person to be arrested will cause death or serious bodily harm if his apprehension is delayed. (cited in Tennessee v. Garner, 1985, pp. 6–7, note 7)

In the final analysis, the Court ruled that “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” (Tennessee v. Garner, 1985, p. 11). The nature of this threat is also clear: “a significant threat of death or serious physical injury” (p. 11). In other words, the Garner decision created a modified “defense of life” standard. It is significant that this pronouncement can be reduced to a moral judgment. This was made clear when the Court noted, “It is not better that all felony suspects die than that they escape” (p. 11).

D. Police Pursuits

The use of deadly force by the police, involving the use and abuse of firearms, has been under scrutiny for a long time by police administrators, by the public, as well as by the courts. Another use of potentially deadly force that has only recently attracted significant attention is the police pursuit (see Alpert, Kenney, Dunham, & Smith, 2000). The purpose of a pursuit is to apprehend a suspect following a refusal to stop. When an officer engages in a chase in a high-powered motor vehicle, that vehicle becomes a potentially dangerous weapon. As the training guide for the California Peace Officer Standards and Training (CPOST) explains, firearms and vehicles are instruments of deadly force and the kinetic energy or kill power of a vehicle is far greater than that of a firearm.

Considered in this light, it is not surprising that there is such great concern over police pursuits. Each year, the National Highway Traffic Safety Administration (NHTSA) collects data on police-pursuit-related fatalities. The data are collected as part of the Fatality Analysis Reporting System (FARS); however, they do not capture all of the pursuit-related deaths. For example, many law enforcement officers are not trained to check the “pursuit related” box when a fatality occurs. Similarly, if the police vehicle is not involved in the crash, officers don’t always report a death on the form. Nonetheless, the NHTSA data show that at least one person will die every day of the year in a police pursuit, with approximately one third of those deaths being innocent bystanders.

While the costs of pursuits are high, the benefits should not be discounted. On the one hand, it is the mission of the police to protect lives and, clearly, pursuits are inherently dangerous to all involved. On the other hand, there is an ongoing need to immediately apprehend some law violators. Determining how to balance these two competing goals will shape the future of police pursuits. Depending on the reason for the chase and the risk factor to the public, abandonment or termination of a pursuit may be the best choice in the interests of public safety. The critical question in a pursuit is what benefit will be derived from a chase compared to the risk of a crash, injury, or death, whether to officers, suspects, or the public. In other words, a pursuit must be evaluated by weighing the risk to the public against the need to immediately apprehend a suspect.

There are two myths that are commonly stated by proponents of aggressive pursuit policies. The first myth is that suspects who do not stop for the police “have a dead body in the trunk.” The thinking behind this statement is that people who flee from the police are serious criminals who have something to hide. While the empirical truth is that many who flee from the police are “guilty” of offenses other than the known reason for their flight, the offense is most often minor, such as a suspended driver’s license (Alpert et al., 2000).The second myth is that if the police restrict their pursuits, crime will increase and a significantly greater number of citizens will flee from the police. While this myth helps justify aggressive pursuit policies, it is not substantiated by empirical data. In fact, agencies that have restricted pursuits do not report any increase in fleeing suspects.

Police pursuits are dangerous activities involving risk to all persons involved, and even to those innocent bystanders who might be in harm’s way. Research shows that approximately 40% of pursuits result in a crash, 20% result in an injury, and 1% result in a death (Alpert & Dunham, 2004). It is very difficult to force a vehicle to stop without the use of a deadly force tactic, such as ramming or shooting at a vehicle. As these tactics are also very dangerous, it becomes important to develop technologies to get vehicles to stop without risking lives. These technologies are being developed, and military technology is being declassified and used to assist law enforcement officers in stopping vehicles and avoiding unnecessary high-speed pursuits.

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