Under the Constitution, when may police officers use deadly force? As Professor Rachel Harmon explains, generally, police officers can use lethal force under two circumstances: when they have probable cause to believe a suspect poses an imminent threat of serious bodily harm and when a dangerous suspect of a crime involving the infliction of serious physical injury is attempting to flee. In Tennessee v. Garner (1985), the Supreme Court held that the Fourth Amendment prohibits the use deadly force against a non-violent, unarmed felon who is fleeing. The Court noted, however, that if the suspect is threatening the officer or there is probable cause to believe the suspect committed a violent crime, deadly force may be justifiable to effect an arrest or prevent the suspect from fleeing. The caveat Professor Harmon stresses is that while the Supreme Court may have provided the constitutional limits, not all states allow the full range of force allowed under the Supreme Court case law, and that communities and the public can also serve as important checks to hold police departments accountable for certain systemic practices.
Rachel Harmon is a professor at the University of Virginia School of Law and the faculty director of its Center for Criminal Justice.
Policing the Police – a TalksOnLaw interview with Rachel Harmon (33min)
Policing the Police (part 2) – a TalksOnLaw interview with Rachel Harmon (31min)
The Center for Criminal Justice – UVA Law
The Law of Police – a casebook by Rachel Harmon
Interview with Police Law Expert – Prof. Rachel Harmon
Joel Cohen ("JC"): In recent years, we’ve seen some horrific examples of police killing, of videos of individuals being killed by police officers, often with little or no justification. What about the law? What is the actual rule? When can police use deadly force? Today we’ll discuss. Hello and welcome to TalksOnLaw, I’m Joel Cohen. Explaining today, we have Professor Rachel Harmon of UVA Law School.
The Two Justifications for Deadly Force?
JC: Maybe let’s start with a test, when can police officers use deadly force?
Rachel Harmon ("RH"): Police officers can generally use deadly force in two circumstances. The most common is when they feel they are threatened with a use of force or a threat of force that would cause serious bodily harm or death. It could be that they are threatened, it could be that another person is threatened. And the other is when someone is fleeing a dangerous crime – when someone has engaged in a crime of violence, and are fleeing and the only way to subdue them is to use deadly force against them.
Lethal Force While Fleeing a 'Dangerous Crime'
JC: You can shoot someone for running away from a crime?
RH: Police officers don’t always use force in these circumstances, and not every state permits the full range of force allowed under the Supreme Court Case Law, but under a case, Tennessee vs. Garner (1985), the Court said, you cannot shoot a non-dangerous fleeing felon in the back of the head, but you can shoot a dangerous fleeing felon in the back of the head. And what makes somebody dangerous in the Court’s view is the circumstance in which the person is threatening or using serious force against an officer or another person, and therefore is actively dangerous in the moment. But the Supreme Court suggests that there is another form of dangerousness, which is being suspected of a violent crime. And according to the Supreme Court’s case law, you could shoot that person as they run away.
JC: If you are chasing down a suspect who is accused of a terrible crime, let’s say a violent rape, but has never seen his date in court. It may, in fact, be the wrong person. In an arrest, if that person flees, a police officer is constitutionally justified to use deadly force against the fleeing suspect?
RH: It would appear so under Tennessee v. Garner (U.S. Supreme Court) Police departments cringe. Police officers and communities cringe in the same way you’re cringing. If you think about, you know, one of the big checks on the use of force: community sentiment matters, too. Police departments face the court of public opinion, probably more often than they face federal courts bringing constitutional cases. And so, those kinds of uses of force are certainly conflicting with many people’s gut reactions about when we should be using force. And, as a result, you see, usually when officers use deadly force, the claim is that they believed that they or someone else was threatened, and usually it’s the officer himself who faced the threat of serious bodily harm or death.
Institutions and the Use of Deadly Force
JC: Let me also get on the record. We’re going to be talking about police abuse and we’re going to be talking about failures in policing and the system that’s in place to hold bad policing accountable. That’s in no way to suggest that all police officers are bad, or that police as a group don’t do so many important and critical things to keep us safe. So I just want to get that on the record. But we will be asking tough questions, and I know that you have done some real tough thinking on it from both the academic side and when you spent your days in justice actually pursuing crimes.
RH: One thing I would say about that is despite the fact that I spent many years as a prosecutor, including on policing cases, I actually think that criminal prosecution is not the best way– it’s sometimes important because there’s a respect that criminal prosecution shows for the victims as equal citizens and I think it can be critical. But I don’t think prosecution is the best way to handle most problems in policing. And I think focusing on the individual wrongdoer or the individual actor in policing is often a mistake. Policing is about systems, it’s about the choices we make in terms of authorizing a behavior, but it’s also the choices in structuring police departments, in tasking them with certain activities. And the problems we get are usually a result of institutions, not as a result of bad people.