Is It Legal For The Police To Shoot An Unarmed, Surrendered Citizen?
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Across the years in the United States, police officers have consistently been found not guilty in the shooting deaths of countless unarmed, non-violent citizens.
Kendrec McDade comes to mind.
So does Amadou Diallo.
Sean Bell is another.
Add Ramarley Graham to that list.
John Crawford also fits this bill.
In each of these horrific cases, the victims were unarmed and not committing a crime, but police, with stories, far-fetched or otherwise, were able to convince juries that they reasonably feared for their safety. At the root of widespread anger in African-American communities over these cases is the idea that if a white officer imagines a threat, he is basically allowed to act on it, no matter how fictitious the threat may truly be. In the shooting deaths of Amadou Diallo and Kendrec McDade, officers successfully argued that they believed they saw Diallo and McDade not only possess guns, but actually fire them—even though both men were completely unarmed.
Considering the facts of Mike Brown's shooting death at the hands of Ferguson, Missouri, police officer Darren Wilson on August 9, the question is, then, is it legal for a police officer who is reasonably aware that a citizen is unarmed, to shoot and kill that citizen if the citizen is incapacitated or has peaceably surrendered?
In the end, the shooting death of Brown and the case against Wilson may go all the way to the U.S. Supreme Court. Follow below for more.
Together, let's look at two essential Supreme Court decisions, one very important Missouri statute, and one awful case of two unarmed men who were killed by police in St. Louis back in 2000.
Tennessee v. Garner, U.S. Supreme Court, Argued in 1985, Decision in 1985
(Read the decision in full here.)
In 1974, 15-year-old Edward Eugene Garner, a 110-pound African-American eighth-grader from Memphis, Tennessee, stole a purse with $10 in it. Running, he got to a chain link fence right before he was spotted by Elton Hymon, an officer with the Memphis Police Department. Hymon identified himself to Garner, told him to halt, and admittedly observed that Garner was unarmed. Garner decided to continue climbing the fence anyway. Hymon shot Garner in the back of the head and Garner died soon thereafter.
At that point in time, Tennessee law (and laws in 21 other states) allowed officers to shoot, fatally or otherwise, a fleeing suspect, in order to "effect an arrest." The problem with the application of this law was that officers, trained to shoot to kill, ultimately served as judge, jury, and executioner of suspects with relative impunity. The arrest, in effect, was made impossible when the suspect was killed.
Cleamtee Garner, Edward's father, refused to let go. He sued the city of Memphis, the mayor of Memphis, the officer involved, and the Memphis Police Department—all on grounds that his son's rights were violated and that the use of deadly force against his son wasn't just excessive, it was extreme.
A full nine years later, the 6th Circuit, a federal appeals court, sided with Garner and ruled that the law that allowed Hymon to shoot and kill Edward Garner should be struck down immediately because it violated the 4th Amendment's protection against unreasonable seizures. Interestingly, current U.S. Supreme Court Justice Samuel Alito, then an attorney in the Reagan administration, wrote a very strong 15-page brief arguing that the 6th Circuit Court had made the wrong decision. Emboldened by Alito's stance, the city of Memphis appealed the ruling all the way to the U.S. Supreme Court.
There, the U.S. Supreme Court upheld the ruling from the 6th Circuit, and clarified why in its decision:
The Court explained that shooting a fleeing felon dead is constitutionally unreasonable because "The intrusiveness of a seizure by means of deadly force is unmatched. The suspect’s fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement .... we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects."
The Court went on to say, "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."
"Officer Hymon could not reasonably have believed that Garner — young, slight, and unarmed — posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. The District Court stated in passing that "[t]he facts of this case did not indicate to Officer Hymon that Garner was 'nondangerous.'" .... This conclusion is not explained, and seems to be based solely on the fact that Garner had broken into a house at night. However, the fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others."
"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."
How Does Tennessee v. Garner apply to Darren Wilson and Mike Brown?
Tennessee v. Garner is going to be huge in this case. In essence, Wilson has to prove that he used lethal force to kill Brown because he had a reasonable expectation that Brown was about to be a threat to him or others. While it is universally accepted by all sides that Brown was unarmed, it appears, from early police statements, that Wilson is claiming that Brown assaulted him and attempted to take his firearm before he fled on foot.
Three main factors in the Wilson case demonstrate that the officer did, in fact, violate the basic premise of Tennessee v. Garner:
1. Wilson stopped to make contact with Brown because Brown and Dorian Johnson were jaywalking. Jaywalking, of course, would never warrant a shooting death. Johnson and other eyewitnesses claim that Wilson, after passing them up on Canfield Drive, reversed back toward them in a rage, screeching his tires, and throwing open his door. Johnson and other eyewitnesses also claim that it was Wilson who was grabbing and pulling at the throat of Brown before Wilson pulled out his gun and shot Brown through the window of the SUV. If true, it is reasonable to expect that Brown and Johnson would flee for their safety. What recourse does a citizen have if they believe they are being harassed or assaulted by a police officer?
If none of that is true, and Brown did indeed assault Wilson and attempt to take his gun, it takes us to point No. 2.
2. Wilson shot at Brown's back six times as Brown attempted to run away. It appears that shot No. 7 grazed Brown's arm and caused him to turn around and surrender. Six eyewitnesses all agree that Brown, verbally and physically surrendered to Wilson. In essence, if Wilson had killed Brown while he was fleeing because Wilson believed Brown to be a threat to public safety, he'd have an easier defense, but that's not what happened. His shots at the back of Brown weren't fatal, so Wilson cannot claim his lethal shots at Brown, as stated in Tennessee v. Garner, were at a fleeing suspect whom he believed to be a danger to himself or society, which takes us to point No. 3.
3. Brown was shot six times. The first time Brown was shot was at Wilson's SUV. We know the second time he was shot was shot No. 7 for two key reasons:
(a) Eyewitnesses reported they saw Brown get shot while he was running away, his body jerked, and then Brown turned around.
(b) Confirmed audio of the shooting has a three-second pause during which witnesses say Brown turned around to surrender. After the pause, only four more gunshots are heard. These four gunshots are not enough for him to be shot a total of six times while facing Wilson. It is, therefore, reasonable to assume that shot No. 7 of 11, from behind, was the second time Brown was shot, and that shots No. 8 through No. 11 were the final four times he was shot.
All of the available autopsy results confirm that the two fatal shots to Brown were in his eye and on the crown of his head, which had to have been fired while Brown was falling. These fatal shots clearly violate Tennessee v. Garner on several levels.
(a) Brown was no longer fleeing when the final four shots were fired at him by Wilson, but was facing him and surrendering.
(b) Brown, missing one sandal, unarmed, shot once by the SUV, then again from behind, was facing Wilson—the opposite of a public safety risk. Wilson clearly paused and had enough time to quickly judge the risk, but proceeded to shoot anyway. Still, before firing the final fatal two shots to Brown's head, Wilson shot Brown twice more in his arms, making him even less of a safety risk to Wilson or anyone else. Eyewitnesses say that Brown, in visible pain, curled his arms to his stomach at this point. In spite of this, more lethal force was used and two fatal headshots ended Brown's life.
The Killing of Earl Murray and Ronald Beasley by St. Louis Officers Robert Piekutowski and Keith Kierzkowski
No case, perhaps nationwide, better displays how easily a state and its local prosecutors can escape the rigors of the Tennessee v. Garner decision than the killing of Earl Murray and Ronald Beasley by two St. Louis police officers in 2000. The major players in this shooting, for anyone following the murder of Mike Brown in Ferguson, will feel a lot like deja vu.
The small town of Berkeley, Missouri, literally borders Ferguson. In 2000, the deputy commander of a countywide drug task force was none other than the current Ferguson chief of police, Tom Jackson. In what was then called a "drug sting," police officers, on a sunny May afternoon, were tracking two young black men, Earl Murray and Ronald Beasley, at a local Delwood Jack In The Box restaurant.
The officers then claimed that Murray and Beasley attempted to run them over with the car they were in. Saying they feared for their safety, police fired 21 shots into their car and killed Murray and Beasley right there in the parking lot. Five major problems with the case then caused local citizens to be outraged.
1. It turned out that Murray and Beasley were completely unarmed.
2. Eyewitnesses claimed the car never moved forward an inch, and then a federal investigation actually proved that the car the officers claimed was going to hit them never moved forward.
3. The local prosecutor, Bob McCulloch, who is now in charge of the Darren Wilson case, greatly inflamed tensions by calling Murray and Beasley "bums"when commenting about why he just didn't understand why the community cared so much.
4. Beasley, a father of three and the manager of a local auto shop, as it turned out, wasn't even a part of the alleged drug sting and was determined to be a completely innocent bystander.
5. A grand jury, convened by McCulloch, in spite of the evidence submitted from the federal investigation that the car didn't actually move forward, opted not to charge the officers.
Although this was 14 years ago, not only were Chief Tom Jackson and Bob McCulloch deeply involved, so was the Rev. Al Sharpton, who traveled to St. Louis in the aftermath to help lead citywide protests and argue for justice. The police, claiming that the car, while it wasn't actually used as a weapon, could have been, were never indicted and soon returned to their jobs.
Missouri Revised Statute 563.046.1
(Law enforcement officers' use of force in making an arrest.)
This Missouri statute is the state law governing under what circumstances police officers can use force, and it was the primary statute used to protect officers Robert Piekutowski and Keith Kierzkowski in the shooting deaths of Murray and Beasley. It will also be the statute used to protect Wilson in the shooting death of Brown. The problem with this Missouri statute is that it has not been updated in the decades since the Supreme Court handed down the Tennessee v. Garner decision and is, according to Chad Flanders, a law professor at St. Louis University, "unconstitutional." As Flanders explains:
As it is written, the Missouri statute says that an officer is justified in his use of deadly force if he believes that it is necessary to effect the arrest of a person and the officer also believes that the person "has attempted to commit or has committed a felony."
In a 1985 case, Tennessee v. Garner, the U.S. Supreme Court said statutes like this were unconstitutional because they permitted the use of deadly force even when the felony at issue wasn’t dangerous or violent. In theory, a police officer operating under the Missouri statue could use deadly force even if the officer believed a suspect had passed a bad check for more than $500, a class C felony in Missouri.
This kind of thing would be ridiculous, the Supreme Court said: "It is not better that all felony suspects die than that they escape," they wrote. "The fact that the police arrive a little late or are a little slower afoot," the court continued, "does not always justify killing the suspect." The majority in Garner then spelled out the circumstances where deadly force would be justified: When the officer reasonably believed that the suspect posed "a threat of serious physical harm, either to the officer or to others."
Unfortunately, the law regarding police force for any felony is still on the books in Missouri, and Wilson might still try to rely on it in arguing his use of force was valid. Wilson can rely on it in any state prosecution of him without any constitutional problem. States don't have to make all of their criminal defenses consistent with the Constitution
Ultimately, two things appear certain when one considers the Wilson case in light of both the Missouri statute and Tennessee v. Garner:
1. Wilson had absolutely no intention of "effecting an arrest" of Brown.
2. It is easy to argue that it is unreasonable for an armed Wilson to believe that an injured, unarmed Brown was a true threat to his personal safety while standing in the middle of Canfield Drive.
Tennessee v. Garner, more than anything else, is about the limited lawfulness of an officer using lethal force on a fleeing suspect. It does not adequately address the lawfulness (or lack thereof) of an officer using lethal force on an injured/surrendered suspect. No case law adequately addresses a similar situation faced by Wilson and Brown, but stated strongly in Tennessee v. Garner—and in most basic statutes governing police use of lethal force—the threat to an officer or the community must be both "serious" and "reasonable."
Finally, what is being almost universally overlooked in most known cases of an officer killing an unarmed citizen is that the rule of law in Tennessee v. Garner that "deadly force may be used if necessary to prevent escape" or "effect an arrest," but officers—firing at least 11 shots in the case of Brown, 41 in the case of Amadou Diallo, or 50 in the case of Sean Bell—are rarely shooting to prevent escape or effect an arrest, but are shooting with the clear and obvious purpose of killing the suspect. Because so much leniency has been given to police departments to determine when an officer "fears" for his safety, it is now the immediate and most common defense used, even if no true threat ever existed.
If Wilson is not indicted for the killing of Brown, his parents, like the father of Eugene Garner 40 years ago, have a legitimate case to appeal to the federal courts that it is unlawful and unreasonable for a trained officer to use lethal force on an injured/surrendered suspect. Otherwise, the value of a suspect surrendering is irreparably and permanently harmed.
It is arguable that both Kajieme Powell and VonDerrit Myers, victims of lethal shootings by St. Louis police just weeks after the killing of Brown, were reluctant to voluntarily surrender to officers because their view of the safety of surrendering had been greatly diminished by what they believed to have happened with Brown. In fact, the discussion of how and when to surrender to police is an increasingly prevalent conversation in African-American communities as every day, people worry that they, too, may be deemed a threat by an officer and killed at will.
Graham v. Connor, U.S. Supreme Court, 1989
(Read the decision in full here.)
Since coming down 25 years ago, over 5,000 cases involving the use of force by police have cited Graham v. Connor as their primary defense for the officers. It will, no doubt, be leaned on by Wilson, should he ever face a jury.
In 1984, Dethorne Graham, a diabetic, was having a terrible insulin reaction. He asked a close friend to stop off at a gas station so that he could purchase some orange juice. When he entered the gas station he was discouraged by the long line, left the store, and got back into the car, asking his friend to just rush him home. Officer Connor, a Charlotte, North Carolina, police officer, observing what he believed to be erratic behavior by Graham, followed the car for half a mile and decided to pull it over for an investigative stop—believing, perhaps, that Graham had stolen something from the store.
After pulling Graham out of the car, the officer refused the pleas of Graham and the driver, Berry, to get him some sugar for his insulin reaction. More officers arrived and assaulted Graham, breaking his foot, cutting his face and wrist, and straining his shoulder in the process. Officer Berry decided to go back to the gas station to see what Graham must have stolen. It turned out that he didn't steal anything at all. Graham eventually passed out at the scene and was literally dumped in his front yard by police.
Graham pressed charges for excessive force, claiming that his constitutional rights were violated. When the case eventually went all the way to the U.S. Supreme Court, the fundamental aspects of the decision centered around the word "reasonable" and determined that what is reasonable in the use of force by an officer has to be viewed from the perspective of what was reasonable in the moment of force and not in 20/20 hindsight.
This sets a very dangerous precedent and has made it nearly impossible for police officers to be held accountable for brutal/lethal force they apply. For instance, in retrospect, it was absolutely unreasonable for police officers to fire 41 shots at Amadou Diallo, an upstanding, unarmed man. Using Graham v. Connor, the defense for the officers successfully argued that they didn't have that hindsight and that they "reasonably" believed they were in grave danger. Without meaning to sound comical, the Graham v. Connor decision allows officers to shoot and kill with lethal force when they have any random version of the "heebie jeebies." In effect, the bar for what police officers can say is a "reasonable" fear is set so amazingly low, that if officers completely imagine they see a gun, hear it go off three times, and even see the flash from the muzzle, as they claimed in the case of completely unarmed teenager Kendrec McDade, the police are still protected by Graham v. Connor.
How Does Graham v. Connor Apply to Darren Wilson and Mike Brown?
First and foremost, Graham v. Connor requires those administering justice to only think about what should have been reasonable in the exact moments lethal force was used. That is to say that because Wilson had never seen or heard of Brown until the moment Wilson saw him from his SUV on Canfield Drive at 12 PM on Saturday, August 9, nothing that happened in Brown's life before the incident, good or bad, can be considered. Justice for Mike Brown, according to Graham v. Connor, cannot be considered from a view 10,000 feet above the incident, but can only be considered from there on Canfield Drive.
So, because it was reasonably established that before, during, and after the incident that Brown was not armed and was reasonably understood by every eyewitness (and one presumes Darren Wilson) that Brown was seriously injured before the fatal shots were fired, Graham v. Connor forces us to consider if Wilson was reasonable, right then and there, in using lethal force to protect himself and the community from Brown.
Graham v. Connor is so widely used by police that it is actually included in many police training manuals across the country. Consequently, perhaps the most troubling aspect of police not being forced to give a statement that is viewable by the public on the day of a lethal shooting, is that law enforcement officials have an opportunity—for hours, or days, or even months—to shape their story around Graham v. Connor. With self-preservation in mind, it would be a rare officer who would openly and willingly say that he or she made even one small mistake in a deadly force case. The case of Darren Wilson will likely be no different.