A cautionary tale on the hazards of relying on the plain-language of statutes
The shooting in Ferguson MO of robbery suspect Mike Brown by Police Officer Darren Wilson has raised a myriad of social, racial, and legal issues. In this post I’d like to address one of the latter, specifically whether under Missouri law Wilson was authorized to use deadly force to arrest a fleeing Brown in the absence of Brown representing imminent threat of death or grave bodily harm to an innocent. (The presence of such a threat would have justified Wilson’s use of deadly force under self-defense and defense of others grounds, which are outside the scope of this post.)
This issue was very well addressed by Robert VerBruggen in his August 16th Real Clear Policy post entitled “Missouri’s Rule on Deadly Force by Cops,” which was brought to my attention a few days after publication, and which I encourage you to read. I offer here a more in-depth discussion of the same issues, and reach the same conclusion.
MRS §563.046: Law enforcement officer’s use of force in making an arrest
In this context much has been made in the press by “journalists” who have stumbled across Missouri Revised Statute §563.046 is entitled “Law enforcement officer’s use of force in making an arrest.” It provides, in relevant part, that:
3. A law enforcement officer in effecting an arrest or in preventing an escape from custody is justified in using deadly force only (emphasis added)
. . .
(2) When he reasonably believes that such use of deadly force is immediately necessary to effect the arrest and also reasonably believes that the person to be arrested
(a) Has committed or attempted to commit a felony (emphasis added); or
(b) Is attempting to escape by use of a deadly weapon; or
(c) May otherwise endanger life or inflict serious physical injury unless arrested without delay.
A plain reading of this 563.046(3)(2)(a) could reasonably lead to the conclusion that Wilson was authorized to use deadly force to stop Brown’s flight, even if Brown presented no imminent threat of death or grave bodily harm, if Wilson merely had a reasonable belief that Brown was fleeing to avoid apprehension for a recently completed felony robbery:
If true, all the discussion of whether the 18-year-old, 6′ 4″ tall, 292 pound Brown represented a deadly threat at the time Wilson shot him would be moot. Indeed, even had the since debunked claim that Wilson shot Brown in the back proven to be true, it would have been irrelevant if deadly force may be used to arrest or apprehend a fleeing felony suspect.
But can it? 563.046 seems to suggest so–and thus provides a useful example of relying upon the plain reading of a statute to understand the law.
Tennessee v. Garner, 471 U.S. 1 (1985)
As it happens, this question of whether deadly force can be used to apprehend a fleeing felony suspect has been addressed by no less than the United States Supreme Court in the 6-to-3 decision of Tennessee v. Garner, 471 U.S. 1 (1985).
Rather than attempt to briefly summarize the decision in my own words, I’ll instead provide an abridged version of the majority opinion. (As always, I encourage the reading of the full-length of this decision at my blog, www.lawofselfdefense.com, most directly accessible by clicking the link above.) Justice White, who authored the majority opinion, conveniently provides the ultimate holding in the first paragraph; I include the rest for additional context.
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.]
Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a “prowler inside call.” [ . . . ] The fleeing suspect [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. He thought Garner was 17 or 18 years old and about 5′ 5″ or 5′ 7″ tall. 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, 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.
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.” The Department policy was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary. The incident was reviewed by the Memphis Police Firearm’s Review Board and presented to a grand jury. Neither took any action.
Garner’s father then brought this action in the Federal District Court for the Western District of Tennessee, seeking damages under 42 U.S.C. 1983 for asserted violations of Garner’s constitutional rights. . . . After a 3-day bench trial, the District Court entered judgment for all defendants. . . . It then concluded that Hymon’s actions were authorized by the Tennessee statute, which in turn was constitutional. Hymon had employed the only reasonable and practicable means of preventing Garner’s escape. Garner had “recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon.”
[ . . . ]
The Court of Appeals reversed and remanded. It 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.”
The State of Tennessee, which had intervened to defend the statute, appealed to this [the US Supreme] Court.
[Justice White continues: T]here can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.
[ . . . ]
[N]otwithstanding probable cause to seize a suspect, an officer may not always do so by killing him.
[ . . . ]
[W]e are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. . . . The fact is that a majority of police departments in this country have forbidden the use of deadly force against nonviolent suspects. . . . Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect’s interest in his own life.
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.
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.
[ . . . ]
It is insisted that the Fourth Amendment must be construed in light of the common-law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant.
[ . . . ]
Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon.
[ . . . ]
[T]he common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death. . . . Courts have also justified the common-law rule by emphasizing the relative dangerousness of felons.
Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be. And while in earlier times “the gulf between the felonies and the minor offences was broad and deep,” today the distinction is minor and often arbitrary. . . . [N]umerous misdemeanors involve conduct more dangerous than many felonies.
There is an additional reason why the common-law rule cannot be directly translated to the present day. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common-law rule has an altogether different meaning – and harsher consequences – now than in past centuries. [Emphasis added, for reasons of personal interest.]
[ . . . ]
In short, though the common-law pedigree of Tennessee’s rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied.
In evaluating the reasonableness of police procedures under the Fourth Amendment, we have also looked to prevailing rules in individual jurisdictions.
[T]he long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States.
This trend is more evident and impressive when viewed in light of the policies adopted by the police departments themselves. Overwhelmingly, these are more restrictive than the common-law rule. The Federal Bureau of Investigation and the New York City Police Department, for example, both forbid the use of firearms except when necessary to prevent death or grievous bodily harm. For accreditation by the Commission on Accreditation for Law Enforcement Agencies, a department must restrict the use of deadly force to situations where “the officer reasonably believes that the action is in defense of human life . . . or in defense of any person in immediate danger of serious physical injury.” A 1974 study reported that the police department regulations in a majority of the large cities of the United States allowed the firing of a weapon only when a felon presented a threat of death or serious bodily harm. Overall, only 7.5% of departmental and municipal policies explicitly permit the use of deadly force against any felon; 86.8% explicitly do not. In light of the rules adopted by those who must actually administer them, the older and fading common-law view is a dubious indicium of the constitutionality of the Tennessee statute now before us.
[ . . . ]
The District Court concluded that Hymon was justified in shooting Garner because state law allows, and the Federal Constitution does not forbid, the use of deadly force to prevent the escape of a fleeing felony suspect if no alternative means of apprehension is available.
[ . . . ]
In reversing, the Court of Appeals accepted the District Court’s factual conclusions and held that “the facts, as found, did not justify the use of deadly force.” We agree. 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. . . . [T]he 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.
The dissent argues that the shooting was justified by the fact that Officer Hymon had probable cause to believe that Garner had committed a nighttime burglary. While we agree that burglary is a serious crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force. The FBI classifies burglary as a “property” rather than a “violent” crime. Although the armed burglar would present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous. This case demonstrates as much.
We wish to make clear what our holding means in the context of this case. . . . The possible liability of the remaining defendants – the Police Department and the city of Memphis – hinges on Monell [ . . . ], and is left for remand. We hold that the statute is invalid insofar as it purported to give Hymon the authority to act as he did.
[ . . . ]
The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.
Missouri Approved Instructions–Criminal, §306.14 Settles the Matter
The Supreme Court in Tennessee v. Garner addressed, of course, a Tennessee statute of similar nature to Missouri’s §563.046, and at first glance might seem to settle the matter with regards to the use of deadly force to apprehend non-dangerous felons under even Missouri law.
There are, however, some important differences between the facts in Garner and those of the Ferguson shooting that open the door for reasonable argument that perhaps Garner does not apply to the facts of the shooting of Mike Brown by Officer Darren Wilson.
For one thing, Garner involved a civil suit, not a criminal matter. In addition, Garner never considered in any substantive way any personal liability–either civil or criminal–on the part of the police officer who fired the fatal bullet into the back of Garner’s head. The Federal District (trial) Court had dismissed the charges against the officer early on, and the Court of Appeals had affirmed that dismissal, “finding that he had acted in good-faith reliance on the Tennessee statute and was therefore within the scope of his qualified immunity.”
The shooting officer’s criminal liability, however, is precisely the question with which we are faced in the Ferguson shooting.
So, if we can’t rely upon a plain-language reading of Missouri statute §563.046, and reasonable arguments can be made that the Supreme Court’s Garner decision may not be on point, where are we to turn next?
Fortunately, Missouri jurisprudence helpfully arrives to bail us out–if one has access to Missouri criminal jury instructions. And that’s a big “if,” because MO does not make it’s criminal jury instructions readily available to the public. On line access may be purchased at a cost of $250 per year, and hard copies at a cost I was unable to determine in the absence of a Missouri bar number.
The aforementioned Rober VerBruggen, in a remarkable piece of internet sleuthing, was able to find an abridged version of the to the relevant jury instruction embedded in a July 2014 misdemeanor probable cause statement. (Interestingly, the statement was sworn by a Detective against a Patrol Officer in his own department. The Detective found probable cause that the Officer had committed third degree assault by inadvertently shooting a fleeing suspect with his Glock 17 pistol in the mistaken belief that he was pointing his non-lethal Taser at the suspect. It’s worth a read.)
As it happens, the very well equipped Law of Self Defense Reference Library has in its possession the relevant sections of the Missouri Approved Instructions–Criminal (MAI-CR), Third Edition (2014). As such, I can provide the full-length of the relevant jury instruction, MAI-CR §306.14, “Justification: Use of Force by a Law Enforcement Officer.” (I include only the portions relevant to an officer’s use of deadly force, to fit the facts in the Ferguson shooting.) (Also, my apologies for my delay in presenting this information–I failed to carry along the LOSD Reference Library during my just-completed vacation.)
306.14 JUSTIFICATION: USE OF FORCE BY LAW ENFORCEMENT OFFICER
PART A–GENERAL INSTRUCTIONS
One of the issues (as to Count _____) (in this case) is whether the use of force by the defendant against [name of victim] was lawful. In this state, the use of force (including the use of deadly force) by a law enforcement officer in making an arrest or in preventing escape after arrest is lawful in certain situations.
A law enforcement officer can lawfully use force to make an arrest or to prevent escape if he is making a lawful arrest or an arrest which he reasonably believes to be lawful. An arrest is lawful if the officer (reasonably believes that the person being arrested (has committed) (or) (is committing) a crime) (is executing an arrest warrant which he believes to be valid).
In making a lawful arrest or preventing escape after such an arrest, a law enforcement officer is entitled to use such force as reasonably appears necessary to effect the arrest or prevent the escape.
A law enforcement officer in making an arrest need not retreat or desist from his efforts because of resistance or threatened resistance by the person being arrested.
But in making an arrest or preventing escape, a law enforcement officer is not entitled to use deadly force, that is, force which he knows will create a substantial risk of causing death or serious physical injury, unless he reasonably believes that the person being arrested is attempting to escape by use of a deadly weapon or that the person may endanger life or inflict serious physical injury unless arrested without delay (emphasis added).
And, even then, a law enforcement officer may use deadly force only if he reasonably believes the use of such force is immediately necessary to effect the arrest or prevent the escape.
PART B–SPECIFIC INSTRUCTIONS
On the issue of use of force by a law enforcement officer (as to Count _____), you are instructed as follows:
First, if the defendant was a law enforcement officer (making) (or) (attempting to make) a lawful arrest (or what he reasonably believed to be a lawful arrest) or [name of victim] for the crime of [name of crime] and the defendant reasonably believed that use of force was necessary to effect the arrest of to prevent the escape of [name of victim] and
Second, the defendant reasonably believed that [name of victim] (was attempting to escape by the use of a deadly weapon) (or) (would endanger life or inflict serious physical injury unless arrested without delay) [emphasis added], and the defendant reasonably believed that the use of deadly force was immediately necessary to effect the arrest of [name of victim], then the defendant’s use of force was lawful.
The state has the burden of proving beyond a reasonable doubt that the defendant was not entitled to use force as a law enforcement officer. Unless you find beyond a reasonable doubt that the defendant was not entitled to use force as a law enforcement officer against [name of victim], you must find the defendant not guilty (under Count ____).
As used in this instruction, the term “serious physical injury” means physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.
Wilson’s Use of Deadly Force Would Be Unlawful Absent Imminent Deadly Threat
And there we have it. Despite the plain-language reading of §563.046 that a law enforcement can use deadly force to make an arrest when he reasonably believes the person making the arrest has committed a felony, in the aftermath of Tennessee v. Garner and subsequent changes to Missouri case law and jury instructions, the use of deadly force to make an arrest of a non-dangerous fleeing felon is not permitted under Missouri law.
Hazards of Relying on the Plain-Language Reading of a Statute
Hopefully this post not only addresses this previously open question in the Ferguson shooting, but also raises a caution among the kind readers about relying on the plain-language reading of a statute.
The situation encountered here, where the plain-language reading of a statute leads one to exactly the wrong understanding of the actual law, is far more common than most non-lawyers likely realize.
Statutes are best understood as the (often vaguely expressed) intent of the Legislature. Where the rubber-meets-the-road, however, is in how those statutes are applied by the courts in real-world cases involving real-world parties and real-world fact patterns.
Finding the law in those cases (hence the term “case law”) requires either reading the relevant court decisions or–often more efficient–reading the relevant jury instructions, which are intended to be a correct blend of both the underlying statute and the applicable case law.
[The New Republic piece critiqued herein is also the source for the “featured picture,” above.]
Andrew F. Branca is an MA lawyer and the author of the seminal book “The Law of Self Defense, 2nd Edition,” available at the Law of Self Defense blog (autographed copies available) and Amazon.com (paperback and Kindle). He holds many state-specific Law of Self Defense Seminars around the country, and produces free online self-defense law educational video- and podcasts at the Law of Self Defense University.DONATE
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