edited crim pro

Tennessee v. Garner

No one has to remind me that many Copblock followers take severe issue with the way American laws are legislated and executed. However we do have some regular Copblock readers who claim to support law and order, although it would seem they actually unconditionally support police officers – which is quite another matter entirely.

I was recently accused by such readers of “misusing Tennessee v. Garner” (a Supreme Court case regarding shooting fleeing felons dead) in my recent article on the police murder in Anaheim. It was further alleged that my “incorrect referene [sic] to Tenn v Garner only shows her D level understand [sic] of the law.”

This leads me to our legal discussion of the day on Tennesee v. Garner, 471 U.S. 1 (1985). I’ll be quoting the most relevant portions, but please don’t take my word for it – here’s the link to the full text, in case you don’t trust me.

The majority opinion was delivered by Justice White, who prefaced the opinion as such,

“This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used unless it is 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.” [Emphasis added].

The facts in the case were as follows, as stated verbatim by the Supreme Court –

At about 10:45 p. m. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a “prowler inside call.” Upon arriving at the scene they saw a woman standing on her porch and gesturing toward the adjacent house.[1] She told them she had heard glass breaking and that “they” or “someone” was breaking in next door. While Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house. He heard a door slam and saw someone run across the backyard. The fleeing suspect, who was appellee-respondent’s decedent, Edward Garner, stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner’s face and hands. He saw no sign of a weapon, and, though not certain, was “reasonably sure” and “figured” that Garner was unarmed. App. 41, 56; Record 219. He thought Garner was 17 or 18 years old and 4*4 about 5′ 5″ or 5′ 7″ tall.[2] While Garner was crouched at the base of the fence, Hymon called out “police, halt” and took a few steps toward him. Garner then began to climb over the fence. Convinced that if Garner made it over the fence he would elude capture,[3] Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his body.[4]

The Court went on to explain the background, “In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to Police Department policy. The statute provides that ‘[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.’”

Mr. Garner’s father subsequently brought suit in the Federal District Court for the Western District of Tennessee, for violation of his son’s constitutional rights.

The Court ultimately held that shooting a fleeing felon dead was constitutionally unreasonable (no shit). The Court reiterated that “whenever an officer restrains the freedom of a person to walk away, he has seized that person,” citing to the SCOTUS opinion in United States v. Brignoni-Ponce. And thus, “there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.”

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.” [Emphasis added].

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.” [Emphasis added].

Under the circumstances of the Garner case, the Court specifically pointed out that “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.”

And of course, the Court, being hesitant to take too firm of a stance against police, made this qualification with regard to the broad Tennessee statute –

“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.”

The next portions of the opinion focused on common law traditions and how such “older and fading common-law view[s]” were a “dubious indicium of the constitutionality of the Tennessee statute at issue” [read: regardless of what common law did or did not allow police to do – the point is, shooting an unarmed, fleeing, felon dead is unconstitutional]. Also note that O’Connor wrote a dissenting opinion, in favor of broad police powers to execute such fleeing felons (joined by Rehnquist).

While some legal scholars believe Scott v. Harris (involving a police shooting a suspect in a high-speed chase) limited Garner to an extent, the facts of the Manuel Diaz shooting bear strong factual similarity to Tennesse v. Garner, which continues to operate as law.

In applying these principles to my article on Manuel Diaz, we can see the police acted in an equally, or even more constitutionally unreasonable manner than the police in Garner. While the police in Garner were responding to a “prowler” after a witness had heard broken glass and someone breaking down a door, the police who shot Mr. Diaz did so because he saw them and ran (here and here). The police suspected Mr. Diaz was a felon (gang member, drug dealer, etc.), but he was not in the process of committing any crime as was the victim in Garner. While the police in Garner were responding to a call at night, in the dark, and actually speculated the suspect was armed, the police in Anaheim were operating in broad daylight, and news articles do not seem to reference that any officer believed Mr. Diaz was armed (which he wasn’t). While the police in Garner gave the victim a warning, shouting, “police, halt!” it is entirely unclear whether the Anaheim police gave Mr. Diaz any such courtesy before murdering him.

The Supreme Court explicitly held that responding to a report of a fleeing burglar in the night was not sufficient reason for an officer to believe the suspect was armed or dangerous. Manuel Diaz was standing in an alleyway in daylight, was committing no crime, and was also unarmed. If it is unconstitutional to shoot a fleeing suspected felon at night when police actually think he might be armed, then it is unconstitutional to shoot a fleeing suspected felon in broad daylight when he clearly is unarmed.

Like I said, you don’t have to take my word for it. Go read the damn case yourself. Better yet, go check out what lawofficer.com has to say about it. I don’t have to argue from my moral or philosophical grounds to conclude this shooting was wrong. I can argue on your terms, using your law, and you are still fucking wrong.

This isn’t rocket science here. If I’ve demonstrated a “D” understanding of the law, please explain how this is the case – but for some reason, I have a feeling you won’t. I have a feeling even if I was arguing 2+2=4, you’d accuse me of “misusing” and “misunderstanding” the facts if you thought that I was using arithmetic principles to malign your beloved, and indeed god-like police.

  • Common Sense


    With your vast, all be it, unused legal knowledge, why did you not help Adam?

  • George

    @ Common Sense – Look at you, commenter #1. There cannot be a more loyal reader than you. I am happy to help where I can. However, I am not licensed to practice law in NH, and while I have done some criminal work, my current area of practice is not criminal law. And the word is “albeit” not “all be it.”

  • http://www.badgeabuse.com badgeabuse

    Thanks for all the great info George, keep up the great work.

  • Brent Ryan Thornton

    Lol. Common scents: my deuce, dropped every day at 7:45 am.

  • t.

    @Sand: As one of the commenters that you are undoubtedly referring to…let me say this. I haven’t looked into that case lately to see if there have been any more developments / information available. I can’t and don’t exactly what happened in that case. The investigation is still unfolding. MY problem with you writings YOU never look at anything but one side. Take to “story” that you wrote about the teenager in Texas who was shot and you only interviewed his mommy. In that instance, you put forth NO FACTS about that, only ridicu.ours accusations contained in a story that made no sense. As for the Diaz case specifically, looks at I believe paragraph 14 of your article above. Think about for a minute. In your vast knowledge and experiences with the police, YOU must of course know that we (I) can draw upon mulipte sources and experiences in my section making while on the job. For me, one of those experiences is close to home where 2 fellow officers were in a foot chase in broad daylight (kinda like this case), in a known drug neighborhood, plauged with gun violence. As the officers gave chase, the suspect made a furtive movement to his waistband and….(pause for effect)…pulled out a…gun and took multiply shots at the officers, striking both of them. They returned fire and he was hit as well and then taken into custody. I use that only as example. YOU are only focused on the very end, due to your bias. The “multiple witnesses” again, only know the end. Undoubtedly there are lots of other events / actions inside this incident. SCOTUS in determining Tenn. V Garner looked at the “totality of the circumstances” in their decision. As should you and all of us. In your rush to condemn the police at any and every opportunity, you miss all of the rest of the story.

    Again, I (we) don’t know everything about this incident as yet. My statement that you are misapplying Tenn. V Garner, in that thinking that just because someone was shot in the back, is simply wrong. SCOTUS didn’t say that, nor did they even imply that. Totality of the circumstances.

  • Common Sense

    Ah Sandy doesnt’ disappoint, even a grammer lesson!

    I see a ‘non’ attorney helped Adam but again, you didn’t. Now you saying you’re not a ‘criminal’ JD holder again, further explains things.

    ..to agree with t, facts aren’t in, perhaps it was murder, perhaps it was justified, time will tell. Never fear, Stompers family will get a million dollar check to ease their pain.

  • George

    I know how you people like to twist things, and will not ever, ever condemn police unless the police are caught on video committing cold-blooded murder (and even then, you will say – “but maybe something happened right before to instigate this! The victim was jaywalking/drinking/smoking weed!)

    In TN v. Garner, we have someone who committed a home invasion, destroyed property, stole something, and was climbing his way over a fence to escape. It was dark, and the officers thought he had a weapon! Even then, SCOTUS said it was inappropriate to shoot him.

    Here, we have, based on news and police statements, video, and eye witness accounts (aren’t those all facts?), that Manuel Diaz was hanging out in an alleyway in broad daylight – albeit a bad part of town, and turned and ran when he saw police. In what world do the totality of these circumstances indicate that it was appropriate to shoot Diaz in the back under these known circumstances, and based on these known facts? You describe circumstances of a waistband shooting that DO NOT EXIST. I am looking at facts, you are MAKING UP IMAGINARY SCENARIOS.

    This would be like, if a I saw someone get robbed at gun point, and I sat there and said, “well, we’re really not considering the totality of the circumstances. You don’t know. Maybe before I came on scene, the victim had actually robbed the robber, and the robber was just getting his money back. I better not ‘jump to any conclusions’ and it would certainly be absurd for me to assume that a robbery just occurred.”

  • t.

    Yeah, that’s just what it’s like. You can go state by state, federal case by federal case. There have been hundreds of cases that have unfolded just like I describe. Time after time, with Tenn v Barber in mind, those case have been decided. Sometimes against the police, lots of times for the police. The states all have use of force statutes that were crafted concerning Tenn v Garner. If what they did is outside that statute, it is. But just because YOU pronounce that it is, doesn’t mean it is. As according to you above, the “lame stream media (a cop blood ker line…not mine), and even the police themselves, make statements that you like. Certainly doesn’t sound like the police are binding anything there (you originally called the liars…apparently not). But what you are missing, and what I’ve tried to explain, is that unless the police just shot him as he turned and ran say 5 feet, there is a lot of time for other things to have occurred. All of that information is still under investigation. Your jumping the gun and AC using the police is not warranted. You as an “educated” person and a supposed leader on this site, should be ashamed that you are only getting and giving part of the story. You know what I’m saying about Tenn v Garner is true. Time after time is has been shown. Present that side too. Be honest an objective.

  • JasonCB

    She doesn’t need to pronounce anything, case law and the Constitution do that for her whether or not the current legal system agrees.

    George, nice article – I particularly liked the last paragraph.

  • t.

    She’s just not giving ALL to you.

  • dougo

    I only heard a couple of a holes calling the kettle semantics aka bullshit from ready?…brainwashed,myopic,pigs.good article and it shows who is who.always question authority.

  • Centurion

    Commoon Dick sense and t BAGG sittin in a tree K I S S I N G first came love then came a domestic partnership, then out of your mouth came pez dispensing shit. You two have to be the dumbest poor sad fucks I have ever seen . There is not one thing ever these posts had you will ever agree with. Even if they shared views you agree with. Both of you have been exposed time and time again for trolling. Your barnyard ducks and all you do is quack . You comments are annoying and you write trolling NOVELS so often even my 16 year old just skips over you when they see your names. George or sandy can Quote statutes write from case Law and you will still disagree even when you really agree with it . You dont blog because you have impartial or nonbias views , you blog and troll because you have and everlasting hatred toward Pete, Adam, Kate and Ian . Your hate exposed both of you and your both FRAUDS . You comment on disagreement and drama so much even those who hate copblock cant stand you . NICE article but you dont have to prove nothing to these fraudulant wife beater bullies , screw these sketch balls and keep up the GOOD work exposing cops and keeping them accountable. Ademo getting caged is not a loss it has made big attention even in D.C. Keep it up.

  • Centurion

    OH yeah @ t You be real honest and objective , The investigation is long over DUMBASS , and besides Police do not even have a write to carry guns or Militarize themselves especially when a child gets executed in the back of the head ,your an IDIOT . Thats evidence . I know soldiers serving time for doing less to a real enemy, but killing U.S. civies is murder. You cops kill pets for no reason too. What about that Providence R.I. Detective getting shot by Police some time ago . Yeah alot can happen in 5 minutes , If you dick head cops had 5 minutes you would have half the block of civies dead. Morons in blue your treachery will not go unpunished you can bet your life on it.

  • Centurion

    @ Common and t I mispell juzz to pizz yooze gize AWFF.

  • Common Sense


    Did you take your pill? PTSD is a bitch I hear. You haven’t been a round in awhile? Did you get that comfort pet like I told you? Perhaps a beagle or maybe a lab.

    and who’s “George or Sandy” – I think your actually rather confused.

    As for as ‘hate’ for Pete, Adam, Kate and Ian. Lets see, I am familiar with Pete and Adam. I think Kate is the chubby girl seen once and a whlie and I don’t think I know who Ian is. Is he the little boy who wears glasses and skinny pants all the time? I truely don’t know. As far as ‘hate’ them, no, I don’t. I just think that for the most part, they are lazy stoner hippies who don’t want to work, pay taxes or take responsibility for their actions.

    I laugh when they say they are journalists, when they are not, and when they say they are activists when, their collective net gain is near zero. I mean, lets be honest. There really aren’t a lot of ‘wins’ in the Copblock column and since effort only counts in 4th grade, they might want to try something different.

  • Common Sense


    I keep meaning to ask, why did you stop signing off with “I AM CENTURION!” It was so catchy I mean. All my friends who come on to read the comments sorta miss that. Perhaps something new, like “CENTURION aka SUPER CORKY”

  • Common Sense

    Sorry, I’ll have to agree with t on this on.

    Facts surrounding the shooting are not in, Sandy just wants to retort the implication she got a D in law classs. Maybe it was just the criminal class she bombed. I bet she got an A in “Rush to Judgement 101” though.

  • http://suijurisforum.com indio007

    Serious physical injury is defined as injuries that would result in broken bones , organ failure or any other injury that would impair normal body function.

    “We conclude that such force may not be used unless it is 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.”

    They also said probable cause which is a higher standard than reasonable suspicion.

  • t.

    CENTURION: Did your mom let you have your laptop back? Wow. Nice to see you still have no idea what you are talking about. BTW. I looked up the address where you challenged me to come meet you…either by accident or possibly on purpose there isn’t even a building at that address. Maybe you can move in with your fake friend Vinny. For a guy who claims a massive amounts t of education (3 law degrees and 6 month “in depth” co stitution class, you appear to have never even read the document. Apparently you also don’t understand that there are also other governing bodies in the world such as villages, towns, cities, states. Just saying.

  • David

    Just my two-cents.

    1. Scott v. Harris was not a case involving a shooting. It involved a high speed pursuit and an officer causing an accident by putting his bumper on the fleeing suspects vehicle. However, it was determined that the force was objectively reasonable under Graham v. Connor.

    2. Tennessee v. Garner-the officer testified that he never suspected the suspect of having a weapon. The shooting was for no other purpose than to keep him from escaping.

    The issue in all use of force cases, including deadly force cases, is whether the officers actions were objectively reasonable in light of the circumstances. Scott v. Harris points out that the seminal case is Graham v. Connor and not Tennessee v. Garner anytime force is used. Factors under Connor are:

    1. the severity of the crime
    2. whether the suspect is a immediate threat to the officer or others
    3. if the suspect is actively resisting arrest
    4.whether the suspect is attempting to evade arrest by flight.

    Right or wrong in the use of force is to be determined applying the above factors.

  • Georgia Sand

    @David – I agree with you. Thank you for your point of clarification. I think Graham uses Garner as a basis for the reasonable standard, however, and Garner should not be dismissed. Garner held it was unreasonable to shoot a fleeing, non-violent suspect in the back. The court’s opinion in Graham cites Garner all over the place. In fact, the court stated in its Graham opinion, “Today we make explicit what was implicit in Garner’s analysis, and hold that all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other “seizure” of a free citizen should be analyzed under the Fourth Amendment and its “reasonableness” standard, rather than under a “substantive due process” approach.”

    Under the Graham test, a court should come to the same conclusion, based on an analysis of the reasonableness factors. Since Manual Diaz’s situation involved a factual pattern much more similar to Tennessee v. Garner, I felt it to be relevant.

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