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Fleeing Felon Rule and Vehicle Stops
Mar 11, 2019


By: Daniel J. Leffler, Attorney

Whether an officer is permitted to use deadly force against an apparently fleeing felony suspect remains one of the most critical judgment decisions facing law enforcement officers.  Title 42, section 1983 of the United States Code imposes civil liability on an individual who, acting under color of state law, deprives a citizen of, among other things, his or her federally guaranteed constitutional rights.  The shooting or killing of a fleeing suspect is a “seizure” under the Fourth Amendment, and is therefore subject to constitutional complaints.

Under U.S. law, the “fleeing felon rule” has been limited to non-lethal force in most cases by Tennessee v. Garner, 471 U.S. 1 (1985)[1].  In Garner, the Supreme Court held, “The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” 471 U.S. at 11-12.  The Court reasoned that “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.” Id.  The Court affirmed the decision of the 6th Circuit Court of Appeals, which reasoned that the killing of a fleeing suspect is a “seizure” under the Fourth Amendment, and is therefore constitutional only if “reasonable.”  The Tennessee statute failed as applied to this case because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes – “the facts, as found, did not justify the use of deadly force under the Fourth Amendment.”  Officers cannot resort to deadly force unless they “have probable cause . . . to believe that the suspect has committed a felony and poses a threat to the safety of the officers or a danger to the community if left at large.”  471 U.S. at 5.

“Further, 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; in other words, “[t]he 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.” Graham v. Connor, 490 U.S. 386, 396-97, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).

In Williams v. City of Grosse Pointe Park, 496 F.3d 482, 486 (6th Cir. Mich. 2007), the evidence fully supported the conclusion, as a matter of law, that an officer’s conduct was “objectively reasonable” at the time he fired his weapon.  “On the evening of August 17, 2003, Officer Michael Miller and Sgt. James Hoshaw of the Grosse Pointe Park Police Department were on duty. While on duty, they learned of a citizen report that three individuals in a green Dodge Shadow were tampering with cars. Miller and Hoshaw came upon a green Dodge Shadow (the “Shadow”), driven by Williams and containing two other passengers. Miller and Hoshaw subsequently determined that the Shadow had been reported stolen. The video camera in Miller’s police cruiser captured the events that followed. Miller and Hoshaw pursued the Shadow. At approximately 7:14 p.m., Hoshaw positioned his cruiser in front of the Shadow in order to block its path, while Miller’s cruiser continued to approach from the rear. One of the passengers of the Shadow exited the car on foot. Williams then put the Shadow in reverse in an apparent effort to flee but found his egress blocked by Miller’s cruiser. As it reversed, the Shadow collided with Miller’s cruiser.  Following the collision, Hoshaw exited his cruiser and, brandishing his weapon, directed an expletive toward Williams. Hoshaw approached the Shadow and stuck his gun in the driver’s side window, pointing his weapon at Williams’s head. Williams then accelerated in an effort to move around Hoshaw’s cruiser and flee. In his attempt to navigate around the cruiser, Williams drove the Shadow over the curb and onto the sidewalk. Hoshaw, failing to release his grasp on the car, was knocked down as it accelerated.  In the next instant, the video depicts Miller firing several rounds as the car moves out of view.” Id. at 484.  According to the Court, “based on Williams’ conduct, Officer Miller had probable cause to believe that Williams posed a threat of serious physical harm to Sgt. Hoshaw, himself, and to other citizens.”  The Court continued, “viewed objectively, Williams’ conduct showed that he was not intimidated by the police presence, would not hesitate to deliberately use the vehicle as a weapon, and was intent on fleeing from the police, which in turn posed a threat to the public traveling on a major Detroit thoroughfare.”  Id. at 486.

Deadly force was not deemed justified, however, even in cases where a suspect was armed where the suspect was not approaching the police or brandishing the weapon in a threatening manner.  For instance, deadly force was held not justified where a suspect’s vehicle was “moving slowly and in a non-aggressive manner, could not have hit any of the officers, and was stationary at the time of the shooting.” Kirby v. Duva, 530 F.3d 475, 482 (6th Cir. 2008).

Also, in Smith v. Cupp, 430 F.3d 766, 774-75 (6th Cir. 2005), the Court held that suspect who had taken control of officer’s patrol car, although he was in possession of a dangerous weapon, “was not threatening the lives of those around him” because officer was never in the suspect’s line of flight and had already been passed by the car when he shot the suspect.  On April 27, 2002, Deputy Sheriff Marty Dunn proceeded to arrest Glen Smith for making harassing telephone calls in Dunn’s presence.  Pursuant to the arrest, Dunn advised Smith of his Mirandarights, cuffed Smith’s hands behind his back and put Smith in the back seat of Dunn’s police cruiser.  Additionally, Dunn patted Smith down to be sure that he did not have any weapons or other contraband.  Dunn left the engine running to provide air conditioning. Unfortunately, Dunn’s police cruiser was not equipped with a security partition separating the front seat from the back seat. When Dunn left the vehicle to talk to the tow truck driver, Richard Rutherford, Smith climbed into the front seat and took control of Dunn’s cruiser.  Rutherford asserted that Dunn ran towards the moving patrol car with his firearm drawn and recalls thinking he “was fixing to watch Officer Dunn get run over.”  Id. at 769.  Rutherford claimed Smith was turning the patrol car to the left, but stated he was not sure whether Smith’s swerve to the left was for the purpose of redirecting the car at Dunn or following the roadway around the building and presumably out of the parking lot.  Dunn claimed he and Rutherford were standing not more than a vehicle’s length from the patrol car’s original position and that Smith was clearly trying to run him and Rutherford over rather than attempting to leave the parking lot. Id.  Dunn claimed Smith “rapidly accelerated directly at him” and Rutherford and fearing for his life and that of Mr. Rutherford, he “drew his gun and fired four times in rapid succession at Smith.”  Id.  According to Dunn, three of the shots hit the car, the fourth hit Smith “above the left ear,” and the patrol car “shot past [Officer] Dunn barely missing him and ran off the parking lot and collided with a tree.” Id.  The autopsy report showed the bullet entered the back of Smith’s head, behind his ear, at a slightly back-to-front angle. Id. at 775.   The Court noted in denying Dunn’s motion for summary judgment, “[T]hough Smith could have used the police cruiser to injure or kill Officer Dunn, under the plaintiffs’ version of the facts he was not doing so when Dunn shot him or even before Dunn shot him.[2]  Although Smith had possession of a dangerous “weapon,” he was not threatening the lives of those around him with it when he was fatally shot. This type of situation does not present “a perceived serious threat of physical harm to the officer or others in the area from the perspective of a reasonable officer.”  Sample v. Bailey, 409 F.3d 689, 697 (6th Cir. 2005).  A jury would therefore be entitled to determine that Officer Dunn’s use of force was unreasonable and accordingly unconstitutional.”  Id. at 775.

[1] This case began in 1974 when Officer Elton Hymon, a young black policeman with the Memphis Police Department, shot and killed Edward Garner, another young black man who, though unarmed, was attempting to avoid arrest for the burglary he had just committed.   The case was ultimately concluded in 1993 when the 6thCircuit Court of Appeals remanded the case to the trial court and ordered partial summary judgment for the plaintiff.  Judge Suhrheinrich noted in a dissenting opinion that, “Officer Hymon’s decision, made in a split second and under potentially-threatening conditions, has been evaluated and re-evaluated in courtrooms from the Western District of Tennessee to the United States Supreme Court.  This litigation has spanned and, in some instances, created many of the most profound changes in the law surrounding actions brought under 42 U.S.C. §1983. In 1975, when this suit was filed, it was absolutely clear that the City and the Police Department, the only remaining defendants in this case, could not even be sued under §1983. Moreover, it was virtually undisputed that a police officer could use all reasonably necessary force, including deadly force, to stop a fleeing felon. The Tennessee legislature adopted the common law “fleeing felon” rule before the turn of this century, Tenn. Code Ann. § 40-7-108, and that statute had withstood repeated state and federal judicial scrutiny.

[2] The facts related to the circumstances of the shooting were heavily disputed.  The Supreme Court and Court of Appeals have held, however, “that a defendant, entitled to invoke a qualified immunity defense, may not appeal a district court’s summary judgment order insofar as that order determines whether or not the pretrial record sets forth a ‘genuine’ issue of fact for trial.”  Johnson v. Jones, 515 U.S. 304, 319-20, 115 S. Ct. 2151, 132 L. Ed. 2d 238 (1995); see also Carter v. City of Detroit, 408 F.3d 305, 309 (6th Cir. 2005).  Although the Court noted the presence of factual disputes, in a motion for summary judgment, the Court is mandated to take the facts in a light most favorable to the plaintiff.

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