Lethal force in Ferguson and beyond

Michael Brown’s shooting death has stirred up accusations of overreach by police, but a look at laws on police use of lethal force shows why the grand jury’s decision in support of Officer Darren Wilson was unsurprising.

Just last December, the Supreme Court examined the difficult, split-second choices police have to make on the streets. Chief Justice John Roberts pointed out the no-win situations the police often face, such as deciding whether to open fire on a suspect to avoid getting into a high-speed chase.

“How were the officers supposed to decide on the spot whether there is a greater danger that people are going to get hit by a stray bullet or there is a greater danger that people are going to get hit by the car?” Roberts asked. On a Supreme Court that is otherwise deeply divided along ideological lines, that case commanded a 7-2 majority in favor of the police.

In fact, police are rarely found guilty of wrongdoing when they use deadly force, even against unarmed citizens. For a long time in the United States, the law permitted police to use deadly force in apprehending anyone trying to flee. Three Supreme Court cases provided some boundaries, but they did little to rein in deadly force in practicalapplication. Boiled down to essentials, the police officer’s perception of danger governs whether it’s lawful to shoot a citizen, and that is a difficult standard to overcome.

In the 7-2 case, Plumhoff v. Rickard, police in Arkansas pulled over Donald Rickard for a broken headlight. He refused to show ID or get out of the car. Instead, he drove off, reaching 100 mph in traffic, striking other cars. Police in hot pursuit fired 15 shots in ten seconds. Rickard lost control of the car and slammed into a house. The impact killed him and his passenger.

The family sued, saying police used unreasonable force in violation of the Constitution’s Fourth Amendment. The benefit of the doubt went to the police, and the court found it is “reasonable” to use deadly force in the face of grave public safety concerns.

The word “reasonable” came up in two other cases from the 1980s that are almost always cited in lawsuits against police. In the 1984 Tennessee v. Garner case, a Memphis police officer responded to a report of a burglary in progress. The officer spotted someone running through the backyard and was able to determine the person was unarmed. The officer yelled, “Halt!” but the person kept running. The officer shot and killed the suspect. His name was Edward Garner. He was 5 feet, 4 inches, 110 pounds, unarmed, and 15 years old. He’d stolen $10 cash and a ring.

The state argued that if criminals knew they might be shot trying to escape, that would mean less crime and fewer escapes. But the lawyer for Garner’s family, Steven Winter, argued the Fourth Amendment requires an officer have specific knowledgeof serious threat. It would not allow a shooting for merely trying to escape, absent evidence of grave danger to others.

The Court found it was not reasonable to believe young Garner posed such a threat to others that deadly force was needed to stop him. But had the fleeing Garner been a public danger, then police could have used deadly force.

When Garner was decided in 1985, about half the states in the nation let police shoot a fleeing suspect to “effect an arrest.” After Garner, that was supposed to change.

“The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable,” the Court wrote in its ruling. “It is not better that all felony suspects die than that they escape.”

The law in Missouri gives police discretion to use deadly force in effecting an arrest or in preventing an escape from custody. Two conditions govern: First, the officer “reasonably believes” it is necessary and, second, the person to be arrested has committed or attempted to commit a felony or might otherwise endanger life or inflict serious physical injury. Missouri law also places the emphasis on who was the first aggressor. And it comes down to a question of reasonableness.

A 1988 Supreme Court case, Graham v. Connor, fleshed out that question. It involved a man roughed up by police who incorrectly believed he’d robbed a store. They also thought he was drunk, but he was suffering an extreme diabetic reaction, which mimics alcoholic stupor. During oral arguments, the man’s lawyer, Gerald Beaver, said it was the police, not his client, who created the hostile situation.

“I don’t believe the police can create their own exigency and then complain that they had to use force against someone to get themselves out of the exigency that they have created by their own objectively unreasonable behavior,” Beaver said.

The Graham case involved no fatal shooting, but it set out guidelines for police conduct. A unanimous Court established the “objective reasonableness” standard. Police academies teach this as “Graham factors” for knowing when lethal force may be used: Officers must look at the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether a suspect is actively resisting arrest or trying to flee. The most important factor is whether the suspect poses an immediate threat to the safety of the officer or others.

In the Brown case in Ferguson, those standards apply: Significant risk of harm to others (if Brown was charging Wilson), probable cause a serious crime was committed (Brown was a robbery suspect), and looking at what was reasonable to the officer in the moment lethal force was used (if Brown assaulted Wilson or was trying to get his gun, he had cause to believe he was dangerous).

In the aftermath of the Brown case, policing methods are under more scrutiny than ever. Finding the balance between excessive use of force, the rights of citizens not convicted of any crime, and protecting the lives of our law enforcement whose lives are always on the line—that’s the task.