By Anonymous GotNews Reporter
Lost in the debate over the shooting of Walter Scott, by South Carolina Law Enforcement officer Michael Slager, is the uncomfortable question of when it is, in fact, justified to shoot a fleeing suspect. The issue came before the US Supreme Court in 1985 in Tennessee v. Garner.
At the time, Tennessee law authorized police to use deadly force against a fleeing suspect. The state statute provided that “if, after notice of the intention to arrest the defendant, he either flees or forcibly resists, the officer may use all the necessary means to effect the arrest.” While the District Court found for the law and the officer actions, the United States Court Appeals for the Sixth Circuit reversed the decision. They ruled that “the killing of a fleeing suspect is a “seizure” for the purposes of the Fourth Amendment, and is therefore constitutional only when it is reasonable.” The state of Tennessee appealed the decision to the US Supreme Court.
The definition of when it is reasonable was clarified in Tennessee v. Garner. The USSC upheld the Appeals Court ruling stating:
“The use of deadly force to prevent the escape of all felony suspects, whatever 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. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.”
The key part comes next, and was also cited in the recent DOJ report on the Mike Brown shooting:
It is not, however, unconstitutional on its face. Where the 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 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, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.
What will be key in this case are the comments made by Feidan Santana, the man who filmed the shooting. He stated to several media outlets that “They were down on the floor before I started recording,” USA today reported that Santana said he started to record after he “witnessed a struggle” between the officer and Scott. CNN reported Santana “was walking to work when he saw the two men struggling”
The question will be whether this struggle with the officer could be considered “probable cause to believe that he (Scott) has committed a crime involving the infliction or threatened infliction of serious physical harm” in which case the USSC has ruled “deadly force may be used if necessary to prevent escape.”