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35 St. Louis U. Pub. L. Rev. 109 (2015-2016)
Police Use of Deadly Force: State Statutes 30 Years after Garner

handle is hein.journals/stlpl35 and id is 123 raw text is: POLICE USE OF DEADLY FORCE: STATE STATUTES 30 YEARS AFTER GARNER CHAD FLANDERS* AND JOSEPH WELLING INTRODUCTION The recent rash of police shootings has raised troubling questions about when, if ever, police are justified in using deadly force against a suspect. Some police shootings may simply represent wanton violence. Others may present close cases. How do we decide when a police officer can not only use force, but shoot at a suspect-even shoot to kill? When is a police killing a justifiable homicide, and when is it just a homicide? One place to start in drawing the line between justified and unjustified uses of deadly force is the Supreme Court's 1985 opinion in Tennessee v. Garner.1 Reading the majority opinion in Garner is a bracing experience. Justice White's extended discussion of the common law standard of police use of force makes clear on many levels that he did not merely want to replace the common law rule: he wanted to bury it.2 That police could use any amount of force, including deadly force, to seize''3 a fleeing felon-the common law rule which at issue in Garner4 -was not only constitutionally infirm, it made little sense as a policy matter.5 Police departments had long ago abandoned the idea (at least in theory, but also in practice) that deadly force should be the default * Chad Flanders is Associate Professor of Law at Saint Louis University School of Law. Joseph Welling is a third year student. Aigner Carr and. Lucas Cusack, both second year students at the Saint Louis University School of Law, prepared the original version of the Appendix, which was then edited by Joe Welling and Shelby Hewerdine. Mr. Welling and Prof. Flanders are jointly responsible for the drafting and the organization of the essay. We welcome corrections to our survey; a version of this essay was published in the online version of the Saint Louis University Law Journal. We thank Shelby Hewerdine, John lnazu, Steven Winter, Roger Goldman, and Marcia McCormick for help on previous drafts. Comments can be e-mailed to Prof. Flanders at cflande2@slu.edu. 1. Tennessee v. Garner, 471 U.S. 1 (1985). 2. Id. at 13-16, 18, 19. 3. Killing someone is way of seizing them. See e.g., id. at 25 (O'Connor, J., dissenting) (finding that Garner was seized by being shot and killed). 4. See id. at 23 (O'Connor, J., dissenting) (referring to the venerable common law rule that allowed deadly force to be used if necessary against a fleeing felon). 5. Id.

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