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State v. Mantelli1/29/2002
s resort to deadly force was frequently judged solely on the basis of whether the officer could have arrested the suspect without shooting him. Alaniz v. Funk, 69 N.M. 164, 166-67, 364 P.2d 1033, 1034 (1961). Under this approach, it made no difference that the felon was nonviolent or that the felon posed no danger to the safety of others.
In Garner, the father of Edward Garner, a fifteen-year-old boy who was shot and killed by a police officer while fleeing from the burglary of an unoccupied house, brought a wrongful death action under the Federal Civil Rights Act, 42 U.S.C. ยง 1983, against the police officer who fired the shot, the police department, as well as others. Garner, 471 U.S. at 5. The shooting occurred after the officer responded to a report of a nighttime burglary and saw Garner running across the backyard of the house to a six-foot-high chain-link fence. Id. at 3. The officer, using a flashlight, saw Garner's face and hands, but saw no sign of a weapon. Id. When Garner began to climb over the fence after the officer's warning to halt, the officer shot and mortally wounded him. Id. at 4. The officer testified that if Garner would have successfully scaled the fence he would have escaped capture. Id. at 4 n.3.
In using deadly force, the officer acted in accordance with a Tennessee statute permitting the use of deadly force to effect the arrest of a felon fleeing from or resisting arrest. Id. at 4. The statute reflected the common law fleeing- felon doctrine. However, the Supreme Court in Garner held that a police officer may not use deadly force to apprehend a fleeing felon who does not pose a "significant threat of death or serious physical injury to the officer or others." Id. at 3. The Supreme Court reasoned that apprehension using deadly force is a "seizure" subject to the reasonableness requirement of the Fourth Amendment of the United States Constitution, and that the indiscriminate use of deadly force to prevent escape of all felony suspects is constitutionally impermissible. Id. at 7. Almost all of the states have modified their police deadly force laws and policies in response to Garner. See generally "Police Use of Deadly Force: How Courts and Policy-Makers Have Misapplied Tennessee v. Garner." 7 Kan. J.L. & Pub. Pol'y 100 (1998).
The Court explained that in determining whether a deadly-force seizure is reasonable, the suspect's rights under the Fourth Amendment had to be balanced against the government's interests in effective law enforcement. Garner, 471 U.S. at 9. The factors that weigh heavily against the use of deadly force are " he suspect's fundamental interest in his own life," the unmatched "intrusiveness of a seizure by means of deadly force," and "the interest of the individual, and of society, in judicial determination of guilt and punishment," which is frustrated by the use of deadly force. Id. The Supreme Court found that these factors outweigh the government's interest in the use or threat of use of deadly force to encourage suspects to submit peacefully to arrest. Thus, " he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable." Id. at 11. The Court framed the inquiry as one designed to determine "whether the totality of the circumstances justified a particular sort of search or seizure." Id. at 8-9.
While the Court held that " he Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such [unarmed and non-dangerous] fleeing suspects," the Court also held that the statute was not unconstitutional on its face. Id. at 11. The Court stated " here the officer has probable cause to believe that the suspect poses a th
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