CRIMINAL JUSTICE ISSUE – Modification of the “Any Fleeing Felon Rule” in 1985.

CRIMINAL JUSTICE ISSUE – Modification of the “Any Fleeing Felon Rule” in 1985: Impact of Tennessee v. Garner (1985).

As of the week of 8-24-2019, California has passed their new California Legislation regarding police use of force which directly deals with the modified fleeing felon rule from 1985.  This is a link to an article from “The Courthouse News Service” that goes over some of the changes.​​

Tennessee v. Garner (1985) will always be considered to be a watershed use of force case decided by our United States Supreme Court.  This disambiguation of the issues surrounding a fleeing felon situation has been a crucial turning point in case law, police procedure and also in the statistical and real face of crime on the streets as well as cases involving civil liability for police use of unreasonable deadly force in violation of an individual’s 4th amendment right.  Most are proponents of the new understanding of appropriate use of deadly police force and feel that it is naturally right for law enforcement to kill a fleeing felon if they are an immediate danger to law enforcement or other citizens.  Some feel that this ruling has created a buffer zone and almost a right for a felon to flee, thus increasing the likelihood of occurrence of more serious crime (Tennenbaum(1994) p. 244).  Regardless of the ultimate statistical crime effect, Tennessee v. Garner (1985) has affected how police approach use of force situations and also how criminal cases involving police shootings are prosecuted and defended.  This ruling also creates a bright line standard in a constitutional tort case against the police if a fleeing felon is deemed to not have been a danger to officers or the public based on 42 U.S.C. 1983.

There is some disagreement about the effect of the Garner decision in the area of emboldening criminals.  If a criminal knows they can run off from a police officer as long as they are completely passively resistant and not aggressive, nor armed nor dangerous, many will exercise their raw power to do so.  This doesn’t create a constitutional right.  The right being protected is the 4th amendment protection against unreasonable search and seizure.  Arrest is a seizure of an individual’s body, and deadly force to affect an arrest is not reasonable unless the fleeing felon is dangerous.  This is the Garner decision and we deem it to be a clarification of the application of the 4th amendment.  There is an inverse effect on the level of non-homicide violent crime rates with respect to the use of lethal force by law enforcement.  Criminals are seemingly emboldened whereas they would maybe have resorted to less serious crime out of fear of on the spot death (Tennenbaum(1994) p. 259).

Police simply change their departmental instruction to officers on when to squeeze the trigger of their service weapon.  It was almost an automatic adjustment across the board even without changing institutional instructions in any way.  There was a 12% reduction in shooting deaths at the hands of law enforcement officers in constitutional states and a 24% reduction in non-constitutional states (Tennenbaum(1994) p. 256).  Officers paid attention to the Garner case and automatically amended their behavior based on the decision.  The Garner decision is an example of case law which completely changed one area of a profession.  Prosecution and defense simply have a different case to guide arguments.  Their arguments are all now based on the degree of dangerousness of the fleeing felon to law enforcement and the public.  Reasonability is the issue, reasonability of the officer’s determination that the fleeing felon is dangerous.

The violation of a person’s 4th amendment right by a police officer in the form of using deadly force to affect an arrest when it is not warranted to use deadly force based on a Garner analysis is the basis of liability for a constitutional tort.  Lethal force when unauthorized due to lack of dangerousness of the fleeing felon to the officer or others violates 42 U.S.C. 1983.  It is a violation of a person’s constitutional right by a police officer acting under color of authority.  Some like John G. Crowley (Crowley(1989) p.870) who citing the decision in Owen (Owen, 445 U.S. at 655 (1980)) on the reliance issue, in conjunction with the Garner decision argue not only a basis for constitutional tort liability under 42 U.S.C. 1983, but also argues retroactivity of this liability.  Not only does the Garner decision create a bright line from 1985 onward for the constitutional tort, it sets the starting point for arguments that the constitutional rights of an individual having been violated by unreasonable use of force in violation of a suspect’s 4th amendment, have always existed even before the Garner decision and therefore a retroactive liability judgment is in order in a constitutional tort case.  Those rights forever backwards into the past having always existed naturally were to be relied on and therefore a retroactive application of the Garner decision in a 42 U.S.C. 1983 constitutional tort liability case can be made based on the deprivation of 4th amendment rights by a person acting under color of authority, i.e. usually a police officer.  Our law is uncovered, not made.  We see our law system as our best codification of the natural order or right and wrong.  We have natural rights protected against intrusion by government.  The constitution and the bill of rights did not give us our natural rights, they restrain government from violating our natural rights.




John G. Crowley, Retroactive Application of Tennessee v. Garner to Civil Litigation, 57

Fordham L. Rev. 855 (1989).

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Abraham N. Tennenbaum, The Influence of the Garner Decision on Police Use of Deadly Force,

85 J. Crim. L. & Criminology 241 (1994-1995).

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