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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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