In a wonderfully thorough comment made in response to my post on Scotchman and Blackface, my new friend Dennis H. made reference to two landmark cases from the United States Supreme Court: Tennessee v. Garner and Connor v. Graham.  Since Dennis gave us the Constitutional teaser, I felt obligated to follow-up and not leave everybody hanging.  These are two Fourth Amendment cases dealing with excessive force by law enforcement.  Since I know that all of you have already read these opinions (hint, hint), I won’t spend a whole bunch of time on them.  But here’s a quick review just to refresh everyone’s memory.  There will be a quiz…

Tennessee v. Garner, 471 U.S. 1 (1985)

This case is near and dear, because it originated right here in my home town.  The police caught a skinny teenager burglarizing an empty house.  Police caught him in the back yard, and then this happened:

With the aid of a flashlight, [Officer] Hymon was able to see Garner’s face and hands. He saw no sign of a weapon, and, though not certain, was “reasonably sure” and “figured” that Garner was unarmed. He thought Garner was 17 or 18 years old and about 5′5″ or 5′7″ tall. [Garner was actually 15yo and 5’4″ at a whopping 110 lbs.] While Garner was crouched at the base of the fence, Hymon called out “police, halt” and took a few steps toward him. Garner then began to climb over the fence. Convinced that if Garner made it over the fence he would elude capture, Hymon shot him. The bullet hit Garner in the back of the head.

Garner at 3-4.  The officer was acting in accordance with a Tennessee law, which (at the time) authorized police to “use all the necessary means to effect the arrest” of a fleeing suspect.  That ain’t the law in Tennessee any more.  SCOTUS gave it the Constitutional smack down.  Thence came one of the most famous and most frequently cited quotes from the Garner opinion:

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.

Garner at 11.  That doesn’t mean anybody who runs from the cops is bulletproof.  The key in Garner was that the scrawny unarmed kid was no danger (remember, the officer admitted he did NOT think the kid was armed).  But if he had been, well now that’d be a whole different story.  The Court was careful to preserve for law enforcement the authority to use deadly force — even against a fleeing suspect — whenever “the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others….”  Garner at 11.

To my CCW homies: that last part DOES NOT apply to you.  While Garner is insightful to civilian students of personal defense, if you are not law enforcement then you can NOT under any circumstances use deadly force against a person who is running away from you.  Period.

Ready for Graham?

Graham v. Connor, 490 U.S. 386 (1989)

Graham is somewhat more legalese-laden than Garner, so it’s not as much fun to read.  The legal gobbledygook in a nutshell is basically that reasonableness of police force must be judged under the Fourth Amendment and not the Fourteenth Amendment.  Peeling back the legal weeds, Graham basically boils down to this…

A dude was having some sort of diabetic meltdown and needed some orange juice.  He ran into a store, saw a long line, ran back out, and jumped in his car to go find OJ somewhere else.  Officer Friendly found dude’s frantic behavior suspicious and pulled him over.  The encounter proved to be somewhat inconvenient for dude, since he had to suffer his diabetic episode in handcuffs while getting pushed around a bit.  When dude’s friend told the police that dude needed sugar, the police were, shall we say, somewhat incredulous:

I’ve seen a lot of people with sugar diabetes that never acted like this. Ain’t nothing wrong with the M.F. but drunk. Lock the S.B. up.

Incidentally, kudos to the police, who have the unenviable task of distinguishing drunkards from malingerers from psychos.  Personally, I couldn’t do it.  So as always, hats off to the LE community.  Don’t get me wrong, there are stupid police just like there are stupid people in every group.  But I swear, LE guys and gals have a rough job, they get crappy pay, and they get blamed for everything.  Okay, off my soapbox now…

Ultimately, in Graham nobody died or got shot or Tased or seriously hurt (this is why Graham isn’t quite as sexy as Garner, but it’s still important).  Diabetic dude filed suit for his broken foot and some cuts and bruises.  So this isn’t a deadly force case; it’s case about force in general.

Fourth Amendment, Fourteenth Amendment, what difference does it make?  A BIG one.  Huge.  In short, the Fourth Amendment is a lower bar for establishing excessive force.  Under the 14A, cops would be home free unless their behavior “shocked the conscience.”  That standard still applies to post-arrest detainees.  Convicted prisoners have an even higher hurdle to scale.  But free people, who have only been temporarily stopped, get higher protections.  They fall under the Fourth Amendment.  And under the 4A, police force must be “reasonable.”  So Graham essentially tightens the proverbial leash on law enforcement in those kinds of stops.

If I’m not LE, why should I care?  Graham is useful to civilians in its attempt to explain what “reasonableness” is.  The Court warned that “reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,” but it nonetheless attempted to offer some guidance by which LEOs could govern themselves (and it closely mirrors the standards most states apply to civilian self-defense claims):

The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight…. With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: “Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,” … violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.

If you’ve ever heard the coveted “20/20 hindsight” talking point used in the self-defense context, now you know where it came from: Graham.  But here’s the rub:

As in other Fourth Amendment contexts, however, the “reasonableness” inquiry in an excessive force case is an objective one: the question is whether the officers’ actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation….

Graham at 396-97.  In other words, subjective “evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.”  Id. at 397.

CCW folks are largely governed by similar standards.  Our defensive decisions must be reasonable.  That doesn’t mean we have to take 20 minutes of pensive deliberation while our attacker hacks us to death, but it DOES mean we can’t go blasting someone away for throwing popcorn at us.  Under the circumstances, in the heat of that particular moment, our level of force should make sense.  And it has to make sense not just in our own subjective mind, but in the mind of the average person.

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