Police Use of Force and Fourth Amendment Rights in Law Enforcement

Deadly Force and the Fourth Amendment

The use of deadly force by a law enforcement officer raises issues of reasonableness and due process under the Fourth and Fourteenth Amendments, respectively, as discussed by the U.S. Supreme Court in Tennessee v. Garner (1985, 471). The use of deadly force constitutes a seizure and is therefore protected by the Fourth Amendment. Its use during policing activities must be balanced against the rights of the suspect by remaining within what would be considered a "reasonable" use of force. Garner involved a Tennessee statute that authorized all available means to prevent the escape of a suspect, which resulted in an officer shooting and killing a 15-year-old boy who had stolen a purse and ten dollars from a home. The officer could see that the boy had nothing in his hands and was therefore probably unarmed. After telling the boy to halt, the officer shot and killed him when he attempted to escape over a fence. The majority of the Supreme Court justices agreed with the Court of Appeals for the Sixth Circuit that the use of deadly force to seize an unarmed burglar was unreasonable under the Fourth Amendment.

Regarding the robbery of Mr. Bell in the current case, the use of deadly force by the officer must be based on probable cause and only after a warning is issued to the fleeing suspect (Tennessee v. Garner 1985, 471). Deadly force may also be used in situations where the officer or bystanders are in immediate danger of harm. None of these requirements were met in this case. The officer did not have probable cause to use deadly force, even after Mr. Bell informed him that the fleeing suspect had tried to shoot him.¹ The officer did, however, have sufficient reason to detain the defendant as part of an investigation into Mr. Bell's claims. Since the officer had just arrived on the scene, he had no way of knowing whether Mr. Bell was a crime victim or a perpetrator. Since the suspect was fleeing on foot and no weapon was sighted by the officer before he opened fire, the defendant did not, from the officer's perspective, present an immediate danger to the officer or to Mr. Bell. Finally, the absence of a warning to the defendant to halt before the officer began shooting represents a clear violation of due process under the Fourteenth Amendment.

¹ As was discussed in Michigan v. Bryant (2011, 562).

The familiar warning "halt or I'll shoot" would have informed the defendant that the officer intended for him to stop, as discussed in Tennessee v. Garner (1985, 471). Even if this warning had been given, the lack of probable cause to justify the use of deadly force should have prevented the officer from shooting at the fleeing defendant. The absence of a warning makes it difficult to apply the Fourth Amendment to the officer's actions because the warning would have indicated the officer's intention to seize the defendant; however, the absence of a warning means the officer was not attempting to seize the defendant, and therefore the Fourth Amendment does not apply.

Due Process and Qualified Immunity

In the absence of a Fourth Amendment issue, the due process clause of the Fourteenth Amendment must be considered in light of the officer's use of deadly force without probable cause (Sacramento v. Lewis 1998, 523). The Supreme Court has limited substantive due process claims under the Fourteenth Amendment to situations where government actions were arbitrary and shocked the conscience. In the absence of probable cause or a warning not to flee, the attempted taking of the defendant's life can only be interpreted as an arbitrary act by a state actor intended to deprive the defendant of his right to life without due process. As such, this act is sufficient to shock the conscience. This conclusion would render the officer's actions liable under 42 U.S.C. §1983.

Should the officer claim qualified immunity, it seems unlikely that the court would grant a summary judgment in the officer's favor (Scott v. Harris 2007, 550). The burden of proving that qualified immunity applies rests on the officer. In situations where there is some doubt about whether qualified immunity could be invoked, courts traditionally allow the matter to be decided by a jury. In the current case, it is unlikely the officer would succeed given the lack of probable cause and the absence of a warning. In any case, the municipality would not be able to claim qualified immunity and could be sued under §1983.

Traffic Stops, Terry Frisks, and the BOLO

The officers who stopped the car for speeding did so under suspicion that the passenger could be the person described in the BOLO. As determined in Whren v. United States (1996, 517), the intent of the officers is irrelevant for the traffic stop as long as the stop is legal. A BOLO had been issued with a description, and the person who exited the woods was a partial match. The stop was legal, but conducting a search incident to a traffic citation would not be upheld under Knowles v. Iowa (1998, 525) unless extenuating circumstances existed — which is the case here. The police were actively searching for the defendant, witnessed a person partially matching the description get into the car, and after the car began traveling in excess of the speed limit with one headlight out, conducted a legal traffic stop. While the officers did not have probable cause to make an arrest, the combination of suspicious behavior, partial match to the BOLO, and the sighting of black fuzz on the defendant's white shirt would create a reasonable suspicion that the passenger was the suspect. The officers were therefore justified under Terry v. Ohio (1968, 392) in conducting a frisk to determine whether the occupants of the vehicle were armed, in order to ensure their own safety.

The frisk of the driver revealed a concealed pistol, making the arrest of the driver lawful. The arrest of the passenger, after the discovery of a chapstick-like container in his pocket, invoked the Fourth Amendment. If this had been a routine traffic stop, the defendant would probably succeed in getting the cocaine evidence suppressed at trial under Knowles v. Iowa (1998, 525) because a search incident to a traffic citation has been held unreasonable under the Fourth Amendment. Since the officer who conducted the search was suspicious only of possible cocaine possession, the officer could not claim the need to preserve evidence under Terry. However, given the partial match to the BOLO and suspicious behavior, the cocaine would have eventually been discovered after the defendant was arrested following positive identification by Mr. Bell. Such evidence is admissible under the inevitable discovery doctrine defined by Nix v. Williams (1984, 467).