The Supreme Court issued a finding in 1985 in the case
TENNESSEE v. GARNER, 471 U.S. 1 (1985)
471 U.S. 1
TENNESSEE v. GARNER ET AL.
APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
No. 83-1035.
Argued October 30, 1984
Decided March 27, 1985 *
Which has been the guidepost for Law Enforcement and their Officers across the land for when police are to be found
justified when killing a suspect in the performance of their duty.
I believe that it's time for a national conversation on whether or not this 30 year old finding is still relevant under the current status in our country as regards the killing of suspects or worse, as has been publicized greatly in the past few years, the killing of innocents who the police killed who were not apprehended while suspected of a crime - but just happened to be there when the police decided to accost them.
The bare facts of the Tennessee vs Garner case:
A Tennessee statute provides that if, after a police officer has given notice of an intent to arrest a criminal suspect, the suspect flees or forcibly resists, "the officer may use all the necessary means to effect the arrest." Acting under the authority of this statute, a Memphis police officer shot and killed appellee-respondent Garner's son as, after being told to halt, the son fled over a fence at night in the backyard of a house he was suspected of burglarizing. The officer used deadly force despite being "reasonably sure" the suspect was unarmed and thinking that he was 17 or 18 years old and of slight build. The father subsequently brought an action in Federal District Court, seeking damages under 42 U.S.C. 1983 for asserted violations of his son's constitutional rights. The District Court held that the statute and the officer's actions were constitutional. The Court of Appeals reversed.
The bare facts of the initial finding:
Held:
The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless 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. Pp. 7-22. [471 U.S. 1, 2]
The takeaway is that the SCOTUS found that the killing of
an apparently unarmed, nondangerous fleeing suspect was not justified UNLESS 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.
As in a recent case which brought about one hell of a lot of public outcry (Hobby Lobby vs Burwell), the basis for the Court's finding rests it appears, on the Mindset of the Officer at the time of the shooting.
Not whether or not the mindset is based in fact, but only what the Officer believed to be the case at the time.
Before you lose your mind and shout, "What the hell, what if the cop thinks all black men are guilty of something and likely to be dangerous? Does THAT make it ok for THAT cop to kill a black suspect? That doesn't seem right, no way, no how." Remember, that in criminal courts for the average American, the standard to reach a finding of murder is dependent upon the killer's INTENT at the moment of the killing. That you must have had the active desire to kill with forethought (which can be just a split second, mind you). That without that INTENT you cannot be found guilty of murder, only homicide, justified homicide, accidental homicide or some other secondary charge.
So I don't think that any attempt to change this already 30 year old precedent will ever prevail. It's built out of the foundation stones of our established Law.
What then can be done about the all too frequent killing of what are in many cases people who are simply in the wrong place at the wrong time?
Also, I believe it's critical to look at the cause of all of this extra-judicial killing in our streets, and since the advent of the modern Drug War in our homes by the (in my mind, anyway) overzealous SWAT and DEA teams in towns and cities across the land.
So, where is all of this overly-aggressive (in the case of Ferguson, MO it's been plastered across television screens and newspapers for a week now in living color) stance of Law Enforcement coming from?
There is a diary up today on the subject by diarist Robs Rant, one which I urge you to all go read before continuing on here with me: You might find this story interesting... with a point in mind.
Robs Rant discusses, via the lens of his Service in the Iraq War, the issue of police violence and use of deadly force and concludes the diary with:
It is human nature, what is the point of having all that power over peoples lives if you never use it? I'm glad no one fired that day in the desert long ago and I am aghast at how often it happens on the streets, completely unnecessary, senseless acts of power tripping young men with badges and no compassion or morality.
21 year old men, just barely done being teenagers do not have the experience in life, the wisdom or the gravitas to be policemen. All they have is what they have been taught and they have been taught to use overwhelming force. As they grow older and more mature all they have to draw on is their experience and if their experience has been violence then that is how they will resolve the situations that arise during their day to day activities until one day they kill an unarmed African American teen for walking in the street.
But I think it's more than just the
militarization of our local police forces in America. Much more, and I'm going to point my finger at the culprit which I am certain is to be found at fault for not only 'extra-judicial killings by police' but the mass killings of our innocent fellow Americans in locations like:
School
Movie Theaters
Workplace
Navy Shipyard
Army Base
Local shopping mall
Places where the average person should not have to consider it a a danger to their life just to be there. Places where most of us go on a regular basis. Places where we spend a good portion of our lives.
What has been happening here in America is that We the People are being told, by the actions of Law Enforcement and killers alike is that our homes, our streets, the very fabric of our lives is being torn and bloodied and there is nowhere safe anymore.
What exactly is the connecting thing in all of this chaos and unrest and violence and fear?
C'mon, you know the answer, I know that you do.
Guns. Over 300 million guns. Enough for damned near every single American, including babies in their cradles.
We have a nation awash in guns and ammunition and bereft of reasonable regulation AND a trend in police forces across the nation to hire former Military as Police Officers AND a legal justification for those Officers to kill with impunity in far too many cases. As evidenced by the killing of people like:
Michael Brown
Eric Garner
Oscar Grant
A USAToday piece dated August 15, 2014 notes:
WASHINGTON — Nearly two times a week in the United States, a white police officer killed a black person during a seven-year period ending in 2012, according to the most recent accounts of justifiable homicide reported to the FBI.
On average, there were 96 such incidents among at least 400 police killings each year that were reported to the FBI by local police. The numbers appear to show that the shooting of a black teenager in Ferguson, Mo., last Saturday was not an isolated event in American policing.
The reports show that 18% of the blacks killed during those seven years were under age 21, compared to 8.7% of whites. The victim in Ferguson was 18-year-old Michael Brown. Police have yet to identify the officer who shot him; witnesses have said the officer was white.
Twice a week, from 2005 to 2012, a WHITE police officer has killed a black person AND been found JUSTIFIED.
While the Law which finds these killers justified is unlikely to be changed, does that mean that there is nothing which can be done to end this horrific trend in our country?
Why can't there be a national discussion with honesty from Law Enforcement about what drives their overly aggressive behavior, a perhaps understandable fear that the citizens over whom they hold (literally) the power of Life and Death outside the purview of a Court, are armed and dangerous and a threat to THEIR lives every moment they spend on Duty? Mind you, I'm not saying that that is a reasonable fear, only that it is reasonable for them to believe it is true.
Why doesn't the media ever seem to be able to tie all of these threads into a single coherent story and offer an honest discussion of the drivers of these events which end lives and destroy families in large city urban centers and on streets of small towns alike now?
That it's a conflagration of colliding factors blending together into a stewpot of death and violence and unrest which is pushing the average people in this country to repeated and mostly fruitless outcries for Justice.
That it's the entry of Military training and experience into our local police forces COMBINED with the unreasonable stock of firearms in circulation in a general public unrestrained from bad acts by reasonable regulation COMBINED with the utter failure of our Law Makers to act to restore some semblance of rational control over both of these two things as they are expressed through the endless killing of citizens by the people who are supposed to be the ones who Protect and Serve the general public in every single community in America.
It has to stop. The public outcries have been fruitless so far to end it. But the day will come when average people will stand up and say #ENOUGH. I wish that day were here already. But judging by the events in #Ferguson, we're aren't even close to that day yet.
But you have to be asking yourself, "What if the next dead person is me? Or my father, my brother, my son. My friend, my husband, my cousin. My sister, my mother, my grandmother." Because the truth is that the next dead body on the floor could be any one of us.
Unless something changes.