Part III: Deadly Force
Shooting a suspect is often called “deadly force” and is the highest level of intrusion on someone’s liberty. It must be justified by a very high governmental interest. Shooting a suspect with a firearm is not unconstitutional when a reasonable officer could believe that he poses a significant threat of death or serious bodily harm to the officer or others.
Significant threat? A murderer may pose an imminent threat to society if allowed to evade arrest and remain at large. Someone stopped for a minor traffic offense may pose an immediate threat by grabbing a gun. And how much proof is necessary? Some of the federal circuit courts use a probable cause standard (…i.e., a reasonable officer could believe the suspect probably posed a significant threat, based on the facts known at the time.) Probable cause is a common-sense, all things considered standard for assessing probabilities in a particular situation.
Tennessee v. Garner9 - Examples when force highly likely to have deadly effects is reasonable.
In Tennessee v. Garner, the Supreme Court held that it was unreasonable to shoot Edward Garner. While investigating a burglary, an officer saw Garner run out of a house. The officer yelled at him to stop, but Garner continued to flee and managed to climb to the top of a fence. At that point, the officer had two options - let Garner escape, or shoot. The officer shot Garner in the back of the head. Garner died a few hours later on the operating table. Tennessee law at the time authorized all necessary force to stop any fleeing felon, and the officer assumed the law allowed him to shoot Garner. But the Supreme Court held that the Tennessee statute was unconstitutional in so far as it authorized the use of deadly force to stop any fleeing felon.
The Supreme Court decided Garner before Graham; however, it is easy to understand how the Court reached their decision by applying the facts to the Graham factors. The “severity of the crime” was burglary and Garner “attempted to evade arrest by flight.” But that was all. The governmental interest was not strong enough. “It is not better that all felony suspects die than that they escape” the Court stated.
Qualified Immunity – What happened to the officer?
This is a good place to pause and ask, “So what happened to the officer that shot Edward Garner?” He was sued, but while it is true that anyone can sue, that does not always mean that the officer must stand trial. It seems unfair that the officer in Garner should be made to suffer the burdens of litigation, when state law at the time authorized what he did.
The officer requested and received qualified immunity. Qualified immunity is the officer’s defense to standing trial in a civil case for a constitutional tort.10 It is raised by the officer well in advance of trial, and if granted, the court dismisses the case. The rationale behind qualified immunity is two-fold. First, it permits officers to perform their duties without fear of constantly defending themselves against insubstantial claims for damages. On the other hand, it allows a plaintiff to recover damages when any reasonable officer would know that the officer violated a clearly established constitutional right.
Qualified immunity is like a contract that police officers have with the federal courts. The officer’s end of the bargain is to use constitutional force (meaning force that falls within the range of reasonableness). Still, the force may not be constitutional. If not, the question becomes whether the courts lived up to their end of the bargain. Did the courts clearly establish the law so that any reasonable officer would know, that’s wrong, … that’s unconstitutional? If the law was not clear, or the court finds that the force fell within that grey area between constitutional and excessive, the court must dismiss the case. The officer that shot Garner received qualified immunity because the law was not clearly established when he fired the fatal shot. The civil case against him was dismissed.
In short, there are two ways to get qualified immunity. The judge may find that: (1) the force was constitutional; or (2) that the law was not clearly established at the time. The judge is not required to go in any particular order, either. The judge may simply find that the law is not clear, and save the harder constitutional question for another day.
To deny an officer qualified immunity, the judge must find that the the facts could support both: (1) a constitutional violation that (2) was clearly established. If denied qualified immunity, the case may proceed to trial.
Students sometimes ask, “If the judge finds that the officer violated a clearly established constitutional right, why not just hold the officer liable?” The answer is simple. Recall that qualified immunity is raised well in advance of the actual trial. If granted, the case is dismissed. Qualified immunity denies the plaintiff (the person suing the officer) his day in court; therefore, before dismissing the plaintiff’s case, the judge must consider the facts in his favor. Before the judge can grant qualified immunity to the officer, the judge must be able to say, “Mr. Plaintiff, I have considered your version of what happened. No reasonable jury could find for you.” Only in that case is it fair to deny the plaintiff his day in court.
If there is a material dispute between the officer and the plaintiff about what happened, the judge must send the case to trial to resolve the dispute. The bottom line: Denying the officer qualified immunity does not mean that the officer is liable.
9 Tennessee v. Garner, 471 U.S. 1 (1985)
10 Qualified immunity is not an available defense in a criminal case.