Tennessee v. Garner and the End of the Old Fleeing Felon Rule

For centuries the law of England and then of America handed a constable a license that sounds shocking today: if a man had committed a felony and ran, the officer could kill him to stop him. Nobody thought this was cruelty. They thought it was efficiency, because the man was going to be hanged anyway.

The rule outlived the world that made it sensible. That is the story of Tennessee v. Garner, decided in 1985, and it is a story conservatives should tell with some pride. A rule rooted in the common law was retired by a Court that went back to the reasons behind the rule, found them gone, and said so. That is how a respect for inherited law is supposed to work. You honor the reasons, not the relic.

The old rule and its logic

Begin with a definition. At common law a felony was not simply a serious crime, as we use the word now. It was a category of offense that carried forfeiture of land and goods and, in nearly every case, death. Murder, rape, arson, robbery, burglary and grand larceny were all capital. A misdemeanor was everything lighter.

The fleeing felon rule grew from that categorization. If an officer, or even a private person, was trying to arrest a felony suspect and the suspect fled or resisted, the arresting party could use whatever force was necessary, including deadly force, to prevent escape. The reasoning was simple. The felon had forfeited his life when he committed the crime. Killing him in flight only carried out the sentence a little early and spared the community the risk of his escape.

Two conditions made that logic hold together, and both are worth stating plainly.

1. Felonies were capital. When nearly every felony meant the gallows, the officer who shot a runaway was not imposing a harsher punishment than the courts would have imposed. The Supreme Court made this point in Garner itself: the rule developed when virtually all felonies were punishable by death.
2. Arrests were made with rudimentary weapons. The constable who chased a suspect in the seventeenth century had a stick and a pair of legs. If the suspect outran him, the suspect got away, and a robber in a distant county could not be recaptured. Deadly force was the only reliable way to stop a man who could run faster than the law. The pistol and the radio changed that, and the squad car changed it more.

By the twentieth century neither condition held. Capital punishment was confined to a few crimes, and most felonies, such as burglary or a bad check, carried prison terms. Officers carried firearms and radios, and a suspect who got away could often be found. The Court's insight was that a rule built on two premises cannot survive when both premises collapse.

Memphis, October 1974

Here is the case. Late in the evening of October 3, 1974, two Memphis police officers were dispatched to a report of a prowler inside a house. One of them, Elton Hymon, went to the back of the house. He saw someone run across the yard, and with his flashlight he saw the person crouching at a six-foot chain-link fence. The man was young, slight and unarmed. Hymon was "reasonably sure" the suspect had no weapon, though he could not be certain. He called out "Police, halt," and the suspect began to climb the fence. Hymon, believing that if the young man made it over the fence he would escape, fired. The bullet struck the suspect in the back of the head. He died on the operating table.

The dead boy was Edward Garner. He was fifteen years old and about five feet four inches tall. In the house he had taken a purse and ten dollars.

I want to be careful about how the conservative reader approaches this. Garner was committing a burglary. He deserved arrest, prosecution and juvenile or criminal punishment, and the people who lived in that house deserved to be made whole. Nothing about his death makes the burglary a good act. But the question for a constitutional republic is not whether the boy was guilty of something. It is whether the Constitution allows an officer to kill an unarmed, fleeing fifteen-year-old over a purse. The answer in 1985 was no.

Tennessee had a statute that authorized the shooting. It said that if, after notice of the intention to arrest, the suspect fled or forcibly resisted, the officer might use "all the necessary means" to effect the arrest. Garner's father sued the city and the officer. The lower courts upheld the shooting under the statute. The Sixth Circuit reversed, and the Supreme Court granted review.

Justice White's opinion

Justice Byron White wrote for a six-justice majority. His analysis is a model of how to read the Fourth Amendment, and I recommend it to anyone who thinks the Court makes up its constitutional law.

Step one: a shooting is a seizure. The Court said plainly that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment. The text of the Amendment speaks of "the right of the people to be secure in their persons" against "unreasonable searches and seizures." A bullet seizes a person as thoroughly as a handcuff does.

Step two: balance. Reasonableness requires weighing the nature and quality of the intrusion on the individual against the governmental interests that justify it. On one side sits the most severe intrusion possible, the loss of life. On the other side sits the state's interest in effective law enforcement. The Court did not dismiss that interest. It asked whether using deadly force against every fleeing felon actually served it.

Step three: the old rule fails the balance. The Court noted that the interest in apprehension does not require deadly force against a nonviolent, unarmed suspect. A suspect who is caught is tried. A suspect who is shot is not. If the object is to bring offenders to justice, killing them defeats the object. White also observed that that fewer than half the states still followed the old rule. And he wrote the line that carries the opinion: "It is not better that all felony suspects die than that they escape."

Step four: history. White then did what a good student of the common law would do. He examined the history of the rule and observed that its justification had evaporated as felonies ceased to be capital offenses and as police came to carry firearms. A rule that had been proportionate in 1700 had become disproportionate by 1985. The Court was not breaking with the common law. It was applying the common law's own principle of proportion to a changed world.

The holding

The Court did not rule that officers can never use deadly force against a fleeing suspect. This is the part most often forgotten, and it matters for any fair account. The Court wrote:

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.

It added that if the suspect threatens the officer with a weapon, or there is probable cause to believe 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 feasible, some warning has been given.

So the rule after Garner is narrower than the old rule but far from an outright ban. An officer chasing an armed robber who has just shot someone may use deadly force to stop his escape. An officer chasing a man who stole a purse may not. The line runs between the dangerous fugitive and the non-dangerous one, which is a better line than the one between "felony" and "misdemeanor," a line that had come to mean very little.

The dissent, stated fairly

Justice Sandra Day O'Connor, joined by Chief Justice Burger and Justice Rehnquist, dissented. She did not defend a rule that permits shooting any fleeing felon, and the dissent should be read with that in view. Her points were these.

First, she argued that the Court was substituting its own policy judgment for that of the legislature and the police departments, and that a nationwide constitutional rule was too blunt an instrument for a question that varied by place and circumstance.

Second, she argued that burglary is not the harmless offense the majority's framing implied. A burglar breaking into a home at night faces the possibility of confrontation with the residents, and the officer pursuing him cannot know in the dark whether he is armed. In her view the legislature could reasonably conclude that burglary is a dangerous crime.

Third, she warned that the Court's test would be difficult for officers to apply in the moment, and that it would put a second-guessing burden on people who needed clarity.

Those objections have force. The second is the strongest: a night burglary of an occupied house is a crime with a real potential for violence, and the Garner majority said little about how an officer should assess a suspect he cannot see clearly. But the facts of the case were the problem for the dissent. Hymon testified that he was reasonably sure Garner was unarmed. The boy was fleeing, not fighting. Every account of the facts points the same way, and it is hard to build a general rule for deadly force on the one case where the officer himself believed the suspect was no threat.

Why the majority has the better of it

Here is the argument for the holding, in the order I would make it.

1. The Constitution's word is "reasonable," not "customary." The Fourth Amendment does not freeze the law of 1791 in amber. It sets a standard, and standards apply to facts as they are. Facts changed, and the standard followed them.
2. A seizure is a seizure. The state's power to take a life is the gravest power it has, and the law has always required more justification for the greater power. A rule that justifies the gravest intrusion with the thinnest connection to danger is upside down.
3. The rule does not tie officers' hands. It authorizes deadly force against the dangerous and leaves the officer free to use all lesser force against everyone else. A policeman who faces an armed, fleeing felon may fire.
4. It matches the moral tradition. The Judeo-Christian tradition that shaped our law holds that human life is not forfeited by theft. The penalty must fit the offense. Execution on the run, without trial, for a property crime violates that principle, whatever the statute said.
5. It protects officers too. A clear rule against shooting nonviolent fugitives reduces the number of officers sued, prosecuted or haunted by a shooting that the law did not require them to make.

The thing to notice is that none of these arguments requires distrust of police. They require only that we treat the power to kill as a power that must be earned by the circumstances.

How it reads beside Graham v. Connor

Four years later, in Graham v. Connor, the Court clarified that Garner was an application of the Fourth Amendment's reasonableness test and not a separate, special rule for deadly force. All claims of excessive force in the course of a seizure are judged by the same standard, from the perspective of a reasonable officer on the scene. We covered that decision in Graham v. Connor and the Officer's View in a Split Second.

Read together, the two cases make a coherent whole. Garner tells an officer that deadly force requires probable cause that the suspect poses a threat of serious physical harm. Graham tells the court that the officer's decision is judged by what he knew and saw in the moment, not by the later discovery that the suspect was unarmed. An officer who reasonably believed a suspect had a gun is judged on that belief, even if the object turns out to be a phone. An officer who shot a boy he knew was unarmed, as in Garner, is judged on that knowledge.

In later years the Court applied both lines of reasoning to car chases in Scott v. Harris (2007), where it said that Garner did not establish a rigid, on-off rule, and that reasonableness is the ultimate question. Departments in the decades since Garner have written policies of their own that, in many places, are stricter than the constitutional floor. That is the system working as the Founders intended: the Constitution sets a minimum, and elected officials and local agencies can ask for more.

For the other half of the picture, see Myths About Police Use of Force That Survive Every Viral Video, which tests common claims about this subject, and Qualified Immunity Explained, From the 1871 Klan Act to Today's Fights, which covers the separate question of when an officer pays damages. Our colleagues' account of Equal Justice Under Law, From the Fourteenth Amendment to the Courthouse shows the principle of proportion at work on a broader canvas.

What a constitutionalist takes from it

There is a lesson here for anyone who wonders whether to trust the old rules. A common-law rule is not holy because it is old. It is holy only when it is wise, and the common law itself taught that rules exist for reasons. Blackstone and Coke, who wrote the commentaries on which the Founders relied, were reasoners, not worshippers of precedent. They would have recognized the Court's method in Garner: find the reason, test it against the facts, and revise the rule when the reason is gone.

And there is a lesson about power. The state asks us to give it a monopoly on force so that we do not have to settle our disputes with our own. In return it owes us restraint. A government that can kill a fifteen-year-old over a purse because a statute said "all the necessary means" has forgotten that bargain. The Supreme Court reminded it in 1985, and the reminder was not anti-police. It was pro-republic.

The case in brief

1. The old fleeing felon rule made sense when every felony was capital and arrests were made with rudimentary weapons, and it lost its logic when both facts changed.
2. In Memphis in 1974 an officer shot fifteen-year-old Edward Garner, who he believed was unarmed, as he climbed a fence after a burglary of a house. Tennessee's statute allowed it.
3. In 1985 the Court held, in an opinion by Justice White, that deadly force to stop a fleeing suspect is a Fourth Amendment seizure and is reasonable only when the officer has probable cause that the suspect poses a threat of serious physical harm.
4. Justice O'Connor's dissent raised fair concerns about burglary's danger and about nationwide rules, but the case's own facts undercut her.
5. Read with Graham v. Connor, the rule is a standard, not a ban, and it asks courts to judge what the officer knew and saw.

What you can do: ask your local police department for its written deadly force policy, read it beside the Garner holding, and bring any gap to the city council or sheriff's oversight board.