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Police Use of Deadly Force: State Statues 30 Years after Garner

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.That police could use any amount of force, including deadly force, to “seize” a fleeing felon—the common law rule which at issue in Garner—was not only constitutionally infirm, it made little sense as a policy matter.



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. But 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 Garner[4]--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 option for stopping non-violent offenders. The common law rule, in fact, was a relic of an age where most crimes were punishable by death and most felonies were violent ones.[6] But we were now in an age of due process, where we had trials and did not "shoot first and ask questions later." More deeply echoing throughout the opinion is the theme that the common law in our day and age is utterly lacking in humanity.[7] The rule at common law seemed to suppose that it was always more important to catch a criminal even if that meant killing him. But that is not always the case. Sometimes it is better to let the criminal go free than to use force that could kill.[8] The opinion does not condone the offender in victim but it does, in a way, encourage us to sympathize with him: he may have deserved a trial and punishment, but he did not deserve to die.

As powerful as the Garner decision was, it also was an importantly limited one. Garner was a case involving a suit under Section 1983, the federal civil rights statute.[9] In deciding such a suit, the Court has to announce what the constitutional rule is--and so in Garner's lawsuit, the Court had to say what amount of force counted as "reasonable" under the Fourth Amendment. But deciding the constitutional standard for Garner's civil rights suit didn't disturb what the standard had to be for state criminal law prosecutions. States still have the authority to dictate under what circumstances police could justifiably use deadly force, and so avoid punishment under state law.[10]

In other words, although Tennessee lost the lawsuit in Garner, the result in Garner didn't require that it change its statute that permitted police to shoot at a fleeing felon, nor did it require any other state to abandon the common law rule.[11] States could still hang on to the common law rule--and even after Garner, many did. States generally have free reign to decide what defenses they can have, and the scope of those defenses. A state can decide to have a "stand your ground" law, or it can decide not to have one, but neither is required--or for that matter, prohibited--by the Constitution. States can say officers are never authorized to use deadly force, or they can say they can use deadly force to shoot a fleeing felon. Again, neither result is dictated by the Constitution.[12]

Many states did change their laws after Garner, however, so compelling was Garner's reasoning.[13] Police could shoot at felons, these new laws articulated, but the felons had to be dangerous, or have committed a dangerous felony (states differed slightly in how they interpreted the holding in Garner). These states that changed their law to fit with Garner joined the ranks of those states that had already given up on the common law rule. According to the Court's tally in Garner, close to half of the states (twenty-three) had the common law rule in 1985, approaching but not quite a majority.[14] The number would diminish in the succeeding decades, as we report below.[15]

But the number has not yet reached zero. As the death of Michael Brown in Ferguson, Missouri brought to light,[16] many states still had the common law rule, either as a matter of statutory law or as a matter of their common law.[17] In some of these states, the actual status of the law regarding police officer use of force was a matter of considerable confusion.[18] In Missouri, police departments by and large followed the Garner rule in their training,[19] and the jury instructions for police officer use of force (approved by the Missouri Supreme Court) explicitly referenced the Garner decision and standard.[20] But the Missouri statute still followed the common law rule.[21] A number of bills were proposed in the spring of 2015 to change the Missouri statute, but none of them made it to a full vote.[22] All of them, to a greater or lesser extent, sought to make the law in Missouri closer to the Garner standard. Presumably, the issue will be up again for debate in the coming legislative session.[23]

This essay updates the count of states who still hang on to the common law rule in their statutes, thirty years after Garner.[24] The structure of our essay is as follows: after a recapitulation of Garner--including a discussion of the ambiguity of what is ultimately its holding (Part I)--we turn to our updated count of states that still retain the common law rule (Part II). Part III explains why, contrary to the belief of many, the decision in Garner did not require states to abandon the common law rule. Part IV looks at the most recent legislative efforts to reform the use of police force statute in Missouri.

I. Tennessee v. Garner

A. The Facts of Garner

The facts as recounted in Garner present a police killing that seems not only unjustified, but almost wanton. The bare facts are that an officer shot at a person fleeing a burglary attempt.[25] But this does not do justice to the nature of the shooting, at least in the Court's eyes. The officer who shot the fleeing felon seems to stumble at almost every step. . The officer, Elton Hymon, thought the victim, Edward Garner was 17 or 18.[26] Garner was 15, an eighth-grader.[27] Hymon thought Garner could have been as tall as 5'7".[28] He was 5'4".[29] In explaining why he shot Garner, Hymon says nothing about the threat Hymon might have posed--in fact, Hymon was "reasonably sure" Garner had no weapon--only that he was eluding escape.[30]

With Garner crouching near a fence, Hymon shouted "police, halt."[31] Garner then hopped on to the fence. This seemed, to Hymon, to point to the necessity of shooting Garner, because at this point all hope of catching Garner was lost. Hymon could not jump the fence, because he was "carrying a lot of equipment and wearing heavy boots."[32] Compared to Hymon, Garner was "younger and more energetic."[33] Although Hymon was accompanied by another police officer, the other officer was "late in coming" to the scene and could not understand Hymon's directions as to where Garner was fleeing. In the end, Hymon shot the fleeing Garner in the back of the head (Garner had not yet made it over the fence).[34] Garner died on the operating table after he was taken to the hospital. He had, it was later discovered, stolen ten dollars and a purse.[35] For the Court, the shooting of Garner was a matter of mistake, misjudgment, and miscommunication.

The Tennessee statute governing police use of force at the time stated that "if, after notice of the intention to arrest the defendant, he either flee[s] or forcibly resist[s], the officer may use all the necessary means to effect the arrest."[36] Tennessee's police department policy was apparently a little more restrictive, but still allowed the use of deadly force in the case of a felon fleeing a burglary.[37] A grand jury declined to indict Hymon.[38] He was also cleared by the Memphis Police Firearm's [sic] Review Board.[39] Garner's father sued under 42 U.S.C. Section 1983.[40] The district court ruled in favor of Hymon, finding he had acted reasonably.[41] The appeals court also ruled in favor of Hymon--finding he acted in good faith reliance on the statute, and so he was entitled to qualified immunity.[42] But the appeals court sent the case back to the district court to determine whether and to what extent the City of Memphis might be liable.[43]

After the district court found no liability on the City's part because the Tennessee statute was constitutional, the court of appeals reversed: the standard supplied by the Tennessee statute, it said, was not reasonable under the Fourth Amendment.[44] The appeals court presented its own standard for when deadly force was reasonable. Officers cannot use deadly force, it concluded, unless they had probable cause to believe the suspect had committed a felony and he "poses a threat to the safety of the officers or a danger to the community at large."[45] The State of Tennessee, which had by that time intervened in defense of the statute's constitutionality, appealed.[46]

B. The Birth of the Garner Standard for Deadly Force

The Supreme Court, in its opinion, took it upon itself to give a searching investigation of the common law rule of police force, and to reassess that rule in light of modern circumstances. It notes, early on, that the use of deadly force represents something of an anomaly in a system that is structured by trials and proof beyond a reasonable doubt.[47] If you kill someone who is fleeing, you dispense with all that. You skip the trial, and go straight to the punishment--a punishment which cannot be reversed on appeal. As the majority opinion states, somewhat dryly but emphatically, "The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice system in motion. If successful, it guarantees that the mechanism will not be set in motion."[48] There should be a bias against using deadly force, the Court surmises, if only for this reason: we prefer trials to summary executions. [49]

The Court then answers the compelling counter-argument made by the state: the common law rule supports shooting fleeing felon; moreover, the common law rule was the rule at the time of the adoption of the Constitution.[50] But to accept the common law rule in interpreting the Constitution, the Court replies, is to be in the grips of a "mistaken literalism" that ignores history.[51] The common law rule may have made sense when all felonies were punished by death. Then, there may have been considerable pull to the idea that the police officer was simply accomplishing quickly what the court system would be doing eventually. And the common law rule may have been acceptable when nearly all felonies were dangerous felonies. Then, we could automatically presume dangerousness from the mere fact of a felony having been committed.

But neither of these facts was still true at the time of Garner.[52] The death penalty, slowly, but inexorably, was being limited to the most violent and heinous of crimes. It was not applied to all crimes, even all felonies, across the board. And now not all felonies were violent. In fact, many crimes that were misdemeanors in the world of Blackstone were now being treated as felonies.[53] So two trends, working in opposite directions, made the common law rule otiose: the death penalty was becoming rarer, but more crimes (and more nonviolent crimes) were becoming felonies. To these two trends the Court added a third: it was getting easier to use deadly force.[54] Before, deadly force was mainly inflicted by hand to hand combat, that is, after a fight. Nowadays, police can kill with one pull of a trigger. There may be, in such a world, a greater need for caution in using force--and for a rule which would discourage the use of force unless and until it was really necessary.[55]

The Tennessee rule, the Court concluded, was "pure" common law, but that common law rule when literally applied made no sense in our changed "legal and technological context."[56] Proof that the rule was no longer good could be found in the evolving practices of states (discussed in greater detail in the next Part of this essay) but even more "impressive[ly]" in polices "adopted by police departments themselves."[57] "Overwhelmingly" police departments had chosen policies that were more restrictive than the common law rule.[58] They allowed force when there was a risk of serious harm, or death, and not merely when there was a fleeing felon. According to the Court, over 85% of departments had rejected the common law rule.[59] The Court found the trend of departments to be especially persuasive, because it demonstrated that sound policing didn't require the common law rule in order to protect citizens and prevent crime.

The Court's new standard, which was to replace the common law rule, was that deadly force could "not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others."[60] This is how the Court announces the rule in the opening paragraph of its decision. Later, it clarifies, and puts the rule in both positive and negative terms. If the suspect poses no immediate threat to the officers or others, deadly force cannot be used.[61] But when "the officer has probable cause to believe that the suspect poses a threat of serious physical harm . . . it is not constitutionally unreasonable to prevent escape by using deadly force."[62] The next line brings an even more specific statement of the Court's new standard: "Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given."[63]

The line just quoted is ambiguous, because it is not clear whether it is restating the rule or giving a specific application of the rule. The "thus" would could either be introducing an example of the rule being applied (as in: "for example") or a further restatement of the rule (as in: "in conclusion"). And this ambiguity is important, because on it hinges the question of whether deadly force is only justified when the felon presents an immediate threat or whether it can be used also when the felony is a dangerous one. The later possibility suggests the rule that deadly force is justified even when the felon is not immediately dangerous, but has (in the recent past, in the not-so-recent past) committed a dangerous felony.[64] What seems likely, although it is not dictated by the text, is the following allowable inference: a police officer has probable cause to believe a felon poses an immediate threat either when he is immediately threatening or he has committed a dangerous felony which suggests that he is probably a continuing threat. Again, this is a conclusion not strictly dictated by the text--and explains why state statutes are split on the matter, even when they have been changed after Garner.[65]

It is hard not to see the Court as being influenced by the Model Penal Code's (MPC) standard for the use of force. They nearly reproduce it in spirit, although the MPC is clearer about which way it reads the ambiguity noted in the previous paragraph. The MPC prohibits the use of deadly force except in situations where the person is either presently dangerous or has committed a crime using deadly force.[66] It is possible to see the Court as endorsing this type of standard in Garner, although it remains unclear whether it believes that using deadly force at someone who has committed a dangerous felony is justified based on the fact that he is likely to be dangerous because of that (i.e., because he has shown himself to be dangerous in the felony he has committed) or whether this is a truly independent ground for the use of deadly force. The MPC treats them as two distinct grounds. But there seems no question that with the MPC, the Court wanted to raise substantially the threshold at which deadly force could be used, far above the common law standard of "any felony." It wanted to reserve the use of deadly force for only those situations where the felon was posing a risk of causing death or serious physical injury to others, or had at least committed a crime where deadly force had been used.

II. State Statutes Before and After Garner

A. Garner's 50 State Survey

Section C of Part III of Garner contains a long and detailed discussion of state laws on the use of force.[67] At the time, and by the Court's own count, nineteen states had the common law rule as part of their criminal code, but--it notes--in two of those cases, the state courts had limited the reach of the common law rule.[68] In California, the felony had to be a forcible and atrocious one, or the person escaping had to present a substantial risk of causing death. And in Indiana, the deadly force could not be used simply to prevent escape; you could use deadly force only to prevent injury or an imminent or threatened use of force.[69] But the Court still leaves this in their count of states that have the "common law" rule still on the books. Four other states, according to the Garner court, had the common law rule as a matter of their common law.[70] So all told, twenty-three states held on to some form of the common law rule when Garner was handed down, although again, in two of those states (California and Indiana) the rule had already been watered down by judicial interpretation.[71]

The rest of the states, according to the Court, either had more restrictive rules than the common law rule, or else--in the case of four states--the Court could not figure out what rule that state had. Two states adopted verbatim the Model Penal Code's (MPC's) rule on deadly force, which (as noted above) in some ways mirrors the Court's rule in Garner, except it is clearer than the Court on the ambiguity between having committed a deadly felony and being presently dangerous.[72] The MPC says that the fleeing felon either must have committed a felony involving deadly force or the threat of deadly force or present a substantial risk of death or bodily injury if not apprehended without delay.[73] The Court puts Massachusetts in the MPC category as well--although it relies on some extrapolation to do so.[74]

Eighteen states, the Court continues, have a statute similar to the MPC, though they use slightly different language: deadly force can be used in cases of felonies that use or threaten physical force, or the fleeing felon is escaping with a deadly weapon or there's a chance the felon is going to "endanger life or inflict serious physical injury" if he is not arrested.[75] The Court also groups Louisiana and Vermont with the eighteen, although they have no state statute precisely on point.[76] The remaining four states (Maryland, Montana, South Carolina, and Wyoming), the Court says, do not have case law or statutes on point, or what they do have is unclear.[77]

The Court admits that the data it has doesn't indicate any clear trend away from the common law rule--which explains why, in part, they find it necessary to rely on police department policies, which it thinks do show a clear trend.[80] Indeed, the Court points to three states--Alabama, Idaho, and Missouri--which considered changing their rule but rejected it (Alabama and Missouri), or briefly abandoned the common law rule, then returned to it (Idaho).[81] What seems undeniable from Garner's count is that there was still substantial support for the common law rule in 1985. Indeed, if we kick out the states where (the Court says) the rule was ambiguous, we have a twenty-three to twenty-three state split--half one way and half the other. If we remove California and Indiana, the count becomes skewed in favor of the non-common law states, but only slightly.

But what about the thirty years after Garner? Have things changed or largely stayed the same? Can we find a more consistent and definite trend away from the old common law rule?

B.  Updating Garner's Count

The answer seems to be "yes." Although we provide a survey of all state laws in the Appendix,[82] here our focus is on those states that retain their common law rule (either in their common law or in statutes), and where the rule has not been substantially modified by state court decisions. Easiest to see are the states which have retained the basic common law rule in their statutes. They make no distinction between types of felonies, and do not add any qualification about the present dangerousness of the felon. Most states now have one or the other (or both) qualifications to their statutes. But eight states still have neither, even thirty years after the Garner decision. Alabama says officers may use deadly physical force to "make an arrest for a felony;"[83] Mississippi's statute allows that homicide is justifiable when committed to apprehend "any person for any felony committed;"[84] Missouri also refers to "a felony;"[85] the New Mexico statute governing homicide by police officers states that homicide is justifiable when "necessarily committed in arresting felons fleeing from justice" without qualifying which felons;[86] Oregon still allows use of deadly force when the crime committed is a felony or attempted felony;[87] Rhode Island also says officers can use deadly force when pursuing someone who merely has committed "a" felony;[88] South Dakota has language virtually identical to New Mexico, although it phrases the rule in terms of when an officer is justified in committing "homicide;"[89]and Washington permits deadly force to arrest a person who has committed (again) simply "a felony."[90]

By our count, that leaves eleven states post-Garner that have changed their statutory law to more closely resemble the Garner standard.[91] Connecticut's statute now states deadly force in making an arrest is justified only when the officer believes it is necessary to "defend himself or herself or a third person from what he or she reasonably believes to be the use or imminent use of deadly physical force," language which echoes Garner but arguably goes beyond it in the emphasis on the imminent use of deadly physical force, not just force that may result in a serious injury.[92] The Kansas statute also mirrors Garner in requiring that the officer have "probable cause" to believe that the person has committed a felony "involving death or great bodily harm or is attempting to escape by use of a deadly weapon."[93] The other states that have departed from the common law rule post-Garner follow in this model, adjusting the common law standard in either of these two ways: by requiring an imminent threat or by requiring a belief that the felony committed was "dangerous" in some measure.

But we must also consider the states that had the common law standard, but not as a matter of statutory law. What have they done? Of the four states that the Court said had the common law rule embodied in their common law--Michigan, Ohio, Virginia, and West Virginia--only Michigan has most clearly not changed its common law. Indeed, a Michigan state case raised the issue, but (for various reasons) stuck with the common law rule.[94] The case People v. Couch dealt with a citizen--not an officer--using deadly force to apprehend a suspect.[95] But the Court went out of its way to say it was not going to change the common law rule after Garner and even doubted its power to do so.[96] Ohio seems to have explicitly embraced Garner. [97] Virginia's case law seems ambiguous,[98] as does West Virginia's, with some favorable citations to Garner in various places (in the case of West Virginia, only one[99]) but stopping short of adopting Garner as the state rule. We are inclined to leave them in the "common law" camp, absent further developments or further clarification.

The Court had also said that the law in some states was simply ambiguous, and we can update and perhaps correct their count. Some of those states, namely Maryland[100] and Wyoming,[101] we can now put in the Garner camp, which have cases roughly on point and which cite the Garner rule (and the relevant parts of Garner) favorably. South Carolina's law--in the news recently[102]--still seems to remain a mystery. In an almost completely baffling case, Shepard v. State, the South Carolina Supreme Court stated the common law rule, viz., that "an officer may use whatever force is necessary to effect the arrest of a felon including deadly force to effect that arrest" but then adds a see citation to the Garner case![103] The standing rule still seems to be any amount of force can be used to apprehend a fleeing felon, which means that South Carolina should be moved from the "ambiguous" camp into the "common law" camp.[104] No cases in Montana post-Garner cite Garner, so Montana's law remains ambiguous--it does not have a law specifically regarding police officer's use of force.[105]

In our updated chart, we dispense with the Garner Court's division of the states that have rejected the common law rule. The Garner Court went out of its way to identify those states that seemed to adopt a version of the MPC rule. But what is salient in our mind is not whether or not they adopt the MPC rule or some other formulation, but whether they have followed Garner in explicitly rejecting the common law rule. In other words, our chart recognizes Garner as the watershed decision that it was, supplanting the importance of the MPC as an influence on the law-making behavior of the states. There is now only the one question: Are you sticking with the common law, or are you following Garner?

III. Garner and State Laws

To many, the persistence of states that have the common law rule is a source of puzzlement, if not outrage.[106] In the aftermath of the Darren Wilson grand jury to not prosecute Wilson for shooting Michael Brown, it was revealed that the Wilson prosecutors themselves were unclear as to the correct standard to use. The Missouri law is the common law standard and it is the one that was initially given to the grand jurors to use as their basis for assessing Wilson's liability. But later in the proceeding, in fact almost immediately before the jurors were to deliberate, the prosecutors said that the jurors needed to discard the handout they were given that had the Missouri statute on it. When one of the jurors pressed why they were being given a new law, the prosecutors largely shushed them, but appealed to Garner. It was because the Supreme Court had overruled the Missouri rule, they said.[107]

This is incorrect.[108] It is possible that the prosecutors, in an abundance of caution, chose to use the incorrect standard, because it was more stringent: it would be less of a help to Wilson, although it would not be the standard at Wilson's trial (should there have been one). There is also a tension in the Missouri jury instructions, which do refer to Garner, and take Garner as the established standard. But the statute would again trump the instructions.[109]

Why didn't Garner make Missouri's statute unconstitutional, just like Brown made state laws regarding separate but equal schools unconstitutional? Garner involved the application of a standard within a federal civil rights statute, not a in a state criminal prosecution. State law treatises have recognized this point. As the Michigan treatise writes about the People v. Couch case (discussed above): "Garner means that the use of deadly force by the police without regard to dangerousness violates the Fourth Amendment, but, of course, the U.S. Supreme Court cannot change the state substantive criminal law, and this action would therefore not be a state law crime."[110] The Missouri treatise on criminal law says something similar.[111] The standards for criminal liability in a state criminal prosecution do not have to mimic the standards for a Constitutional tort.

It is true that the Constitution applies to the states. The First Amendment of the Constitution may mean that a state law is unconstitutional. So a state may make it illegal to say bad things about the President, or to burn the flag, or to use coarse language. Such laws--and prosecutions under such laws--would not stand under the First Amendment: they would involve obvious violations of free speech. But consider how different that is from whether or not a police officer should be able to appeal to a certain justification under state law when he or she uses force. There, the question is not whether someone should be punished for breaking the law, but whether his or her conduct should be considered a violation of the law at all.[112] The difference here is between expanding liability in the face of a constitutional provision and being required to hold someone liable. States may be required to strike down laws, but they can't be required to make them--or get rid of excuses or justifications they may have in the law.

In general, states are free to be more expansive in defining the scope of their criminal law. States have to obey the Constitution, but they do not have to criminalize violations of the Constitution. They can make some things not a crime that the federal government criminalizes--consider the repeal of state marijuana laws in Alaska, Colorado, and Washington. In a similar way, a state could decide to legalize "being a police officer and using deadly force against a fleeing felon," even if there is a federal law that comes out the other way. Not all states have to have the same defenses. For the most part, federalism is the rule in the substantive criminal law in the states.[113]

And the Fourth Amendment, as a matter of criminal procedure, rather than criminal substance, does apply to the states.[114] But this isn't relevant, either, in the context of a state criminal prosecution of a police officer. If Wilson had unreasonably seized Brown, and Brown did not die and was later put on trial, any evidence Wilson had gotten as a result of that seizure could potentially be excluded at trial. The consequence of a Fourth Amendment violation is the exclusion of evidence gathered as a result of that violation--a boon for the defendant. In other words, the Fourth Amendment does not require or mandate any criminal sanction for the officer who has violated the Fourth Amendment. It only gives the defendant an advantage at trial (and presumably, in negotiating a plea as well). It is true, however, that a statute plus a Fourth Amendment violation can lead to sanctions for an officer who violates the Fourth Amendment. A statute can say "if a police officer violates the Fourth Amendment, then he or she should be held liable in a court of law." In fact, this is precisely what some federal civil rights statutes do; they give a cause of action for people to sue for recovery of damages sustained as the result of a Constitutional violation. But the important thing is that the Constitution doesn't do this by itself. It requires a statute to make something criminal.

The officer in Garner was sued under precisely such a statute, not under a state criminal statute. If a state's criminal law has a more restrictive standard--the Garner standard rather than the common law standard--then of course the officer may be criminally liable under the state law. But if the state does not have the Garner standard, then it is possible that a police officer could escape criminal liability but still face civil liability under Section 1983. This is exactly what the result was in the Garner case. Officer Hymon escaped criminal liability (in fact, he was not even a party to the civil suit by the time Garner reached the Supreme Court[115]), but it was still possible for the Garner family to recover damages from what the officer did.

So the prosecutors were right initially when they gave the grand jurors Missouri's law as the one to apply to any prosecution of Wilson. That rule--basically the common law rule--is what applied, and not the Garner standard. Garner did not, as some commentators mistakenly asserted, "overturn" Missouri's law, or Tennessee's law, for that matter. Of course, one might favor the Garner standard for policy reasons, and many states did post Garner. But it is a mistake to say that Garner meant that the states had to change their law, because Garner left those laws untouched. There is no requirement that state law fit with the standards for a federal civil rights suit against a police officer. If the attorneys supervising the grand jury thought that Garner somehow "overrides" the state statute, they were wrong. The substantive criminal law of the 50 states does not have to meet a Constitutional standard of reasonableness.

IV.  Proposed Changes to Missouri's Law[116]

As we saw, Missouri was one of the states cited by the Court in 1985 as having the common law rule,[117] and thirty years after Garner, Missouri still has the same rule. In the major reform to the criminal code passed by the Missouri legislature last year,[118] they kept the rule--making only minor grammatical changes to the text of the statute. Moreover, in the comment to the statute, which was made effective in 1979, the legislature expressly disavowed limiting the use of deadly force to certain felonies (e.g., ones that involved a risk of death or serious physical injury), saying that such an approach was "cumbersome and impractical."[119] The comment did say that the officer should use his judgment as to whether the situation was dangerous enough to merit deadly force.[120] But such a dangerousness requirement is nowhere to be found in the text of the statute itself, which permits the use of force in cases where any felony is committed, even a non-violent one. In principle, an officer in Missouri would be protected by the Missouri law enforcement officer use of force statute if he used deadly force against a fleeing check forger (a class D felony).

The shooting of Michael Brown--and the subsequent decision not to prosecute Darren Wilson--brought renewed attention to Missouri's use of force law. Add to this the confusion about the proper jury instructions given to the grand jury, and there was a sense that law needed to change, or at least be clarified. Missouri's pattern jury instructions follow Garner by leaving out the justification of deadly force on a fleeing felon--departing from the clear text of the statute, which allows force to be used against any fleeing felon.[121] Police practice in Missouri also embodies the Garner standard.[122] Again, Missouri state law isn't required to follow Garner, as several media outlets misleadingly reported in the wake of the grand jury's decision.[123] But changing the law might have at least some symbolic significance, even if it might not matter that much to practice. It could show that Missouri believes its police officers should use force only sparingly, that is, only when the suspected felon actually, and presently, presents a threat to others.[124]

Several proposals were made to change the law in the spring 2015 legislative session, introduced by Senators Dixon, Chappelle-Nadal, and Nasheed, and by Representatives Adams and Pierson.[125] None of the bills passed the General Assembly, although it seems reasonable to predict that many of them will be introduced in the new legislative session. Our purpose in discussing them here is not to endorse one proposal over another, but rather to highlight the differences between the bills, and see how the compare to the standard articulated in the Garner decision.

The bill that got the most media attention was the one proposed by Senator Nasheed.[126] Her proposal required that police exhaust "all other reasonable means" before using deadly force and also that a warning be given. Such measures arguably move beyond the Garner standard (i.e., make the use of force more difficult to justify than Garner would), although Garner itself suggests the advisability that officers give a warning.[127]

Nasheed's proposal also gave police officers the permission to use deadly force against someone who is attempting to escape and "possesses a deadly weapon," a change that potentially makes the statute less restrictive than Garner when it comes to the use of deadly force: on one interpretation of the language, an officer could shoot at a fleeing misdemeanant, whom the officer believed had a weapon on his person. There are other problems: requiring use of a deadly weapon--which is given a particular definition elsewhere in the Missouri Criminal Code--leaves out cases where a person threatens an officer or others with a non-switchblade knife or baseball bat or crowbar--all "dangerous instruments" but not "deadly weapons."[128] And Nasheed's proposal seemingly left open the recurring high speed car chase scenario, where a person may pose a serious risk to others, but without the use of "deadly weapon."[129] Finally, Nasheed's suggested revisions would remove the most Garner-like part of the current Missouri statute: section (c) which allows the use of force against someone who may "endanger life or inflict serious physical injury."

Senator Chappelle-Nadal's bill, which got rid of the felony requirement altogether and says force is justified only if the person to be arrested "poses a clear danger to the officer or any other person" seems very close to the standard laid out in Garner.[130] But "danger" is an ambiguous term ("clear" does not add much), and not one used in Garner, which specified that the danger be one of death or serious physical injury. Senator Dixon and Representative Adams's bills come closest to Garner.[131] Adams's bill keeps the felony language of the Missouri statute, but adds that it must be a "violent" felony.[132] Garner avoids the use of the term "violence," which has the potential for ambiguity,[133] and instead uses the language of physical injury and deadly force. Still, Adams's proposal is roughly in the spirit of Garner.

Senator Dixon's proposed revision was probably the one that would bring Missouri law closest to Garner. Like Chapelle-Nadal's and Adams's bills, it gets rid of the felony language altogether, and leaves in the existing statutory language allowing the use of deadly forced if the felon may endanger life or inflict serious physical injury unless immediately stopped.[134] That's the Garner idea and the Garner language, and it is already present in the Missouri statute. Dixon's proposal was also the easiest fix to the existing Missouri statute, as it just cuts out the language that allows police officers to use force to stop a person who has committed "a felony."

What eventually made it to the House was a compromise bill that included changes from both Senator Dixon's and Senator Chappelle-Nadal's bills: it would qualify the any felony language to include only felonies that involved "the infliction or threatened infliction of serious physical injury" and clarified that officers may also use force against a person who might endanger the life or inflict serious physical injury on "the officer or another person" unless arrested without delay. Both changes are broadly consonant with Garner and its emphasis on the seriousness of the risk to the life or the physical safety of the officer and those around him, based either on the fact that the person (a) has committed a dangerous felony or (b) immediately presents a risk of causing death or serious injury.[135] Senator Nasheed voted against the bill, arguing against the bill as "watered down." She would have preferred that the standard of belief for the officers be "probable cause" rather than "reasonable suspicion"--which would bring the Missouri law even closer in line with Garner's holding.[136] Senator Rob Schaaf also voted against the bill, asserting that if the bill were passed the "perpetrator has no reason to stop when the police say stop because they know they can get away."[137] The bill was approved by the House, but eventually died in the Senate. According to reports at the time, Governor Jay Nixon "said he would encourage lawmakers to revisit the issue next year."[138]


Garner was an important decision, but not important in the way many now think it was. It did not itself change state laws or require them to be changed--and many of them still remain unchanged. But it did state, clearly and powerfully, the problems with the common law approach to police use of deadly force. It set the Constitutional standard and in so doing, it doubtlessly inspired many states to change their laws so that they no longer conflicted with Garner. Many police departments were also moved to change their standards to be in line with Garner, although as Garner made clear, police departments tended to be ahead of the curve in the standards they employed.[139]

Whether the remaining common law states will stick to that standard, especially in light of recent events, we must wait and see. But these states stand against the historical trend and the powerful message of Garner.

To access the footnotes to this article click here.

Chad Flanders is Associate Professor of Law at Saint Louis University School of Law. Joe 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 Inazu, Roger Goldman, and Marcia McCormick for help on previous drafts. Comments can be e-mailed to Prof. Flanders at

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