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Wed Feb 13, 2013, 11:18 AM

The 4th Amendment, Police, Deadly Force and the Rule of Law

I guess what some people think of as the "Rule of Law" is whatever they want it to be.

Tennessee v. Garner, 471 U.S. 1 (1985)
http://www.law.cornell.edu/supremecourt/text/471/1

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.

Majority White, joined by Brennan, Marshall, Blackmun, Powell, Stevens
Dissent O'Connor, joined by Burger, Rehnquist


It is worth noting here that Justice Brennan is most famously known for his longstanding and eloquent dissents against the trend in the 1970's toward greater police power.

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Reply The 4th Amendment, Police, Deadly Force and the Rule of Law (Original post)
jberryhill Feb 2013 OP
CBGLuthier Feb 2013 #1
loli phabay Feb 2013 #3
jberryhill Feb 2013 #5
justiceischeap Feb 2013 #2
loli phabay Feb 2013 #4
jberryhill Feb 2013 #6
cbdo2007 Feb 2013 #7

Response to jberryhill (Original post)

Wed Feb 13, 2013, 11:36 AM

1. I remember that ruling.

It was the ruling that meant the police are not supposed to shoot you merely for running away from them. Tennessee and other states allowed the police to blow your head off merely for running away. This ruling LIMITED police powers.

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Response to CBGLuthier (Reply #1)

Wed Feb 13, 2013, 11:45 AM

3. yup its a limitation on when an officer can shoot an escaping subject not an easing.

 

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Response to CBGLuthier (Reply #1)

Wed Feb 13, 2013, 11:50 AM

5. Indeed it did limit operation of the overbroad TN statute


So amid the wailing about how "police these days" can go crazy, it is interesting to observe that this decision, which clearly spells out that the use of deadly force to prevent escape where there is probable cause the suspect has committed a dangerous felony, and has been warned to surrender, actually does say that it can't be used in situations such as, say, burglary as in the facts at hand.

The police CAN shoot you for running away from them if you have shot at the police or others, however, and this decision endorsed by the entire liberal wing of the court at that time, makes that clear.

Under the operative TN statute at hand, the police could kill you for running away from being arrested for shoplifting. That law was struck down in its application to situations other than probable cause for violent felonies. And it is more than "running away" but "to prevent escape".

Where there is probable cause to believe that someone has fatally shot four others, engaged in kidnapping of two others, is actively trading fire with the police, has been evading arrest for several days, has broken into another house and holed up with weapons, and has claimed to be in possession of anti-aircraft devices, we are very well out of the "merely running away" territory, and I would submit you would be unlikely to find any federal circuit judge or Supreme Court justice that would find the limitations in Garner to apply.

Part of accepting what one's Constitutional rights are, is to further accept that the mechanism for determining those rights is, in the final instance, the Supreme Court. You don't have to agree with it, and there are certainly a long and proud tradition of legal advocacy groups that find and carry forward with cases selected for the purpose of changing, modifying, clarifying or even reversing standing precedent in favor of a proposed alternate understanding.

But to say something like "his Constitutional rights were violated, and I don't give a shit what relevant Supreme Court precedent is", is a position that contradicts itself. You can't rely on the Constitution for an assertion of your rights, while denying that the Supreme Court is the body which interprets those rights under the same Constitution.

It's fine to say, "the law should be something other than what it is", and that goes on all of the time. It's what the appellate courts are for.

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Response to jberryhill (Original post)

Wed Feb 13, 2013, 11:41 AM

2. So, what you're saying is that it's lawful to burn someone alive

if they "committed a crime involving the infliction or threatened infliction of serious physical harm?"

Should we start expecting the police to set fire to all suspected criminals that fit this description?

I've got no problem with police using appropriate deadly force. What I have a problem with is starting a "burn" to force a person out of a cabin because they prefer not to get a negotiator. Or because it appears as though there was a kill order given with this particular individual.

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Response to justiceischeap (Reply #2)

Wed Feb 13, 2013, 11:48 AM

4. personally i have no problem with how they tried to force him out

 

If they had to breach lord knows what would be waiting for them and waiting him out could lead to escape or other deputies getting shot.

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Response to justiceischeap (Reply #2)

Wed Feb 13, 2013, 11:51 AM

6. You are asserting that Dorner was burned alive?

I missed that in the flood of news thus far.

Where can I find further information on that fact?

I'm stating relevant 4th Amendment law on point. I do not have all of the facts which you seem to have.

Let's break it down for you:

IF

(a) the suspect threatens the officer with a weapon

OR

(b) there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm,

THEN

deadly force may be used if necessary to prevent escape,

AND IF

where feasible, some warning has been given.

Would you like that coded in the programming language of your choice?

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Response to justiceischeap (Reply #2)

Wed Feb 13, 2013, 12:19 PM

7. Why send in more potential victims?? i.e. a negotiator

He didn't want to negotiate. He wanted to kill people. That's why he tried to kill the two cops who tried to arrest him earlier that same day.

You can't force someone to negotiate if they don't want to. You can't force someone to have a trial if they don't want to. What you CAN do is make sure they don't kill anybody else which is what the cops should ALWAYS do in this same scenario.

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