The fourth amendment to the US Constitution provides and ensures one of the fundamental human rights. This amendment guarantees freedom against unreasonable search and seizure by public servants and officials or any other agents of the US government. In order to conduct search and seizures legally, such officials and governmental agents are required to have reasonable ground, on the basis of which they receive specific warrant.
There are many cases concerning this constitutional amendment that were considered and decided by the US Supreme Court. And the landmark decision in this sphere is Tennessee v. Garner. According to the factual circumstances of the case under consideration, in 1974, one of the police officers of Memphis shot and killed a man, who allegedly committed burglary and tried to escape. Police officer Elton Hymon used a firearm against Edward Garner, who fled from the backyard. The suspect ran into a high fence and stopped near it. Hymon used his flashlight, and according to him, he didn’t see any weapon on the suspect. As he thought, Garner wasn’t tall and 17-18 years old.
Police officer ordered the suspect to stop. Then he informed him his official position, but he didn’t stop and tried to climb over the backyard fence. Policeman considered that he could escape from police because he obviously was able to climb over that high fence. Garner was shot at the back of his head and in couple hours died.
According to Tennessee's law on police activity, Hymon acted lawfully. Under that act, after the suspect was informed of police officer’s trying to arrest him, he either forcibly resist, or tries to escape, the police officer is empowered to use all necessary measures to enforce such arrest. The local procedural acts allowed the use of firearm against the burglar, who tried to flee, too ([471 U.S. 1, 5] 40-7-108, 1982).
The report of the activity of Hymon was submitted and considered by the corresponding local review authority, but they didn’t find any violation (42 U.S.C.2401, 1983). However, father of the shot person at first filed a statement to the Federal District Court, where he complained about the event and demand compensation for damages, since he regarded that there were violated the civil rights of his son.
The Court of the District dismissed that complaint arguing by the lack of necessary evidence. Moreover, the court made the decision that Hyman conducted firearms in accordance with the acting legislative statutes, and thus, the court acknowledged the acts that regulated such police officer’s activity as legal. The District Court therefore ruled that there were no grounds for compensation, because civil rights Garner’s son were not violated.
The Court of Appeal affirmed the decision rendered by the lower court and didn’t change its verdict (710 F. 2d 240, 1983). However, concerning the local statutes that provided police officer’s right to shoot at fleeing suspect, the Court demanded certain specifications. As it was considered, to empower policemen to make seizures (and use firearms as in the case under consideration) the statute shall provide differentiation among various types of crimes. According to the Court, police officer could not be allowed to shoot at the suspect if he didn’t have evidence that constitutes probable cause that such a suspect committed crime of respective degree of social danger and is there dangerous either for the policemen or the society in general (710 F.2d 247, 1983). Under other circumstances application of deadly force is unjustified and, therefore, shall be recognized as unreasonable and inappropriate.
In that way, when the case reached the Supreme Court of the United States of America in 1985, the issue under question was legal rule of the use of deadly force by the police officers, as it was fixed in local normative statutes and instructions. And in separate, whether these rules violated Garner’s son’s civil rights provided by the Fourth Amendment to the US Constitution.
The Supreme Court partly affirmed the decision of the Court of Appeal, where it stated that the use of firearm against a fleeing defendant was regarded to be a seizure and thus there should be reasonable ground. However, in comparison with the Court of Appeal, the Supreme Court held that because of lack of specification of separate circumstances, under which police is empowered to use firearms, the whole legal statute regulating the police officer’s conduct and the use of firearms is unconstitutional.
In its verdict, the US Supreme Court indentified separate criteria that should be assessed while deciding on possible violation of civil right guaranteed by the Fourth Amendment during the course of forcible arrest of a suspect. First of all, the Court recognized that "Apprehension by the use of deadly force is a seizure subject to the Fourth Amendment's reasonableness requirement" (Pp. 471 U. S. 7-12). Second, in order to use deadly force and firearms against a person subject to seizure, there shall be probable cause that he or she committed certain category of crime to ensure reasonableness of such a seizure.
Third, the Court emphasized that the content of the Fourth Amendment guaranteeing freedom against arbitrary search and seizure, shall not be understood literally. That meant that the society and social relations at large have undergone significant changes since the time when the Amendment was enacted. Besides, the ways and manners of conduct of the police changed as well, including rules of firearms bearing and application (Pp. 471 U.S. 12-20). In its turn, the judicial cases on issues relating to the Fourth Amendment can be judged and decided using justices’ discretionary.
Forth, probable cause shall be identified in regard to the corresponding degree of social danger of both the situation and the suspect. Applying that separate case under consideration, the Court held that there was no probable cause for the use of firearm by the policeman. As it implied from the materials of the case, Hyman saw that the defendant was young, tiny and unarmed. The situation wasn’t danger enough to shoot at Garner. Thus, the use of mortal force was unjustified and inappropriate.
In the United States, there isn’t still any federal "Law on Police" or other normative acts, regulating in detail its powers. For example, until the early 1970s, the United States’ police departments spent hours to teach their employees how to use firearms, but sent them to the streets without any clear written instructions as to the circumstances, under which they should (and should not) use it. The first written guidance on the use of force and firearms was issued by the police chief officer of New York in 1972. Despite the fact that his example was followed by many departments, any general federal legal standard for use of force by the police did not exist until the mid-1980s.
However, contemporary normative standards issued by the Ministry of Justice of the United States are much more specific and restrictive in issues regarding the police’s use of mortal force against unarmed fleeing suspects. According to those standards, law enforcement officials shall be aware of the value and respect the dignity of each person. With providing the law enforcement bodies with relevant legal authority to use force so that to ensure public safety, a careful balance of interests of all people is required.
Respect and courtesy in all cases of communication with citizens is the key to understanding and cooperation. The most acceptable methods of arrest are those in which a person voluntarily obeys simple requirements of a police officer. If in order to ensure arrest or public safety a police officer has to use force, he / she is obliged to try to get control of the situation through verbal advice, warnings and persuasion. If such verbal methods of influence are ineffective, their use is not possible or may not be effective, a police officer has the right to use force to the necessary extent, taking into account the principle of reasonableness (Lewinski, 2008).
Performing their duties, from time to time the police may use force against an aggressive, threatening to other citizens or not following his instructions persons, in situations when it is required to conduct arrest of such persons, to ensure self-protection of other workers or civilians from the risk of immediate danger. A police officer has the right to use necessary force reasonably to effectively bring the situation under control, while protecting the lives of other police officers and other people.
A law enforcement officer may apply the deadly force, only when it is justified and necessary to protect themselves or others against the imminent threat of death or serious physical injury. If the force other then deadly may be sufficient to effectively conduct arrest or perform other law enforcement tasks, then the use of deadly force is not considered necessary.
Law enforcement agencies should develop specific regulations governing the use of force, including firearms, other weapons and special equipment in special cases, such as: shooting on a moving vehicle, verbal warnings, positional asphyxia, taking into custody, as well as the use of chemicals.
Despite this very regulation and many other local standards of police officers conduct, the number of cases where the deadly force was used keeps increasing from year to year. Certainly, Tennessee v. Garner was a landmark decision in the US judicial practice, as it was it this case in 1985, where the Supreme Court of the United States held that the possibility of arrest or killing of an American citizen "shall be determined by the balance of his rights under the Fourth Amendment, on the one hand, and the importance of the public interest, on the other hand" (Lewinski, 2008).
As the statistics assert, the number of Americans killed by police firing increased from 1980 to 4000% and amounted to more than 5000 people. According to experts, these statistics are not surprising. After the tragedy of 2001, local and federal law enforcement agencies began to operate much tougher, so it is assumed that they must resist any terrorist threats. That is, they should destroy the terrorists to protect Americans. In fact, this counter-terrorism message leads to increased violence against Americans themselves. Today, according to experts, in the average American is much more likely to be killed by police firing, than from a terrorist attack. And there is also a great opportunity to be affected by a stray bullet (Lewinski, 2008).
Striking examples of that are recent incidents in New York City. In the course of Perge, the police neutralized killer on Fifth Avenue, (he was killed), and six bystanders were under fire. All of them were injured and are now suing the city.
In another case, the police shot on the addict on Times Square. The police have made at least a dozen shots, but the addict wasn’t shot. Later he was defused by taizer, but two passers-by were injured (Hueske, 2006).
In this context, there should be also noted the recent events taking place in Ferguson. Ferguson in recent years has been suffering from "white flight" that generates the enclaves of structural poverty and deep isolation of black citizens. According to the Census Bureau, 22 per cent of the population of Ferguson is below the poverty line, which is two times more than in 2000. With this in mind, actions of the police are not unusual. Authorities often find it necessary to tighten control over the order in the cities in which the number of blacks and the poor increases. Such supervision periodically turns into harassment, associated with the "broken windows theory", which suggests that these methods help deal with crime. This theory put forward by James Wilson, argues that disorder generates criminal activity (Hueske, 2006).
Wilson believed that the garbage disposal and replacement of broken windows - as well as prompt punishment of deviants and offenders, even for minor offenses - reduce the number of crimes. That is, taking care of the little things, you save yourself from some of the major problems. This theory is well settled down, and the government began to use it throughout the country. Say, Mayor Rudolph Giuliani and Police Commissioner Bill Bratton applied this theory in New York - and crime rate, apparently, really decreased. However, the policy of "stop and search", which allowed police to inspect arbitrary legally abiding citizens in search of drugs, weapons and other prohibited items, has increased tension between the "color" community and the police that led to the arrests of a large number of the representatives of the minorities (Lewinski, 2008).
In practice, the use of the theory of broken windows usually means harassment of young black men. Thus, it sows hatred in the same degree that prevents crime. Say, the New York police used the controversial practice of "stop and search" basically just against black and Latino youth. According to the latest report of the Center for Constitutional Rights, in the framework of this program, blacks and Hispanics are stopped more often than whites - and this applies to areas with mixed or predominantly white population. In addition, says the report, "with blacks and Hispanics treated harshly than whites. They are more often arrested, instead of just handing a subpoena, and the police often use force against them.
In December 1979, in Miami, Florida, 33-year-old motorcyclist Arthur McDuffie black man committed a traffic violation, but refused to stop his motorcycle at the request of the police. After a short pursuit by four policemen in residential neighborhoods, he was arrested and brutally beaten with batons, and died four days later (Hueske, 2006).
After the jury trial the accused police officers were fully justified. The acquittal caused a flurry of indignation of the black community, and as a consequence, of very extensive and devastating urban riots arose. Along with the police forces, there were put National Guard troops by order of the governor of the city in order to restore public order. As a result, after the nine-day chaos, 67 people were killed, 1400 were arrested (Lewinski, 2008).
After 12 years, almost a mirror image incident and its consequences took place in another case. On March 2, 1991, 25-year-old African American Rodney King drove his car, exceeded the allowed car speed and tried to escape from pursuing him police officers. Police officers gave more than 50 baton kicks to lying on the ground unarmed man, which called mass outrage of American citizens of unjustified police brutality. All four police officer participating in the beating have been charged. However, despite the presence a video in the record, under the verdict of the jury of April 29, 1992, three of the four accused officers were acquitted, and the fourth one was imposed a symbolic punishment (Hueske, 2006).
As we can see, the use of force by the police against unarmed suspects has long been rather contradictory and controversial issue. Essential role in this context the case of Tennessee v. Garner had, in which the court recognized unconstitutional a legally enforceable in many states "rule fleeing criminal," which allowed the police to resort to the use of firearms (up to causing death) against unarmed suspect, who attempted to escape the arrest. From then on, the use of extreme measures of coercion were recognized as legitimate and justified only if there was reason to believe that the suspect posed a significant threat to the life or health of a police officer or other people.
Certainly, this is a landmark decision in the judicial practice of the US, however, normative regulations providing specific circumstances of the use of deadly force by the police against unarmed people, seem to be insufficient even today. The number of cases of police’ arbitrary use of deadly violence against unarmed suspects who were trying to escape increased significantly. On the other hand, it is often difficult to define the appropriate degree necessary force of the police in respect of suspects in separate situations. Obviously, as it was stated in the Supreme Court’s decision, in each separate case there should be leaved a room for the judicial discretion.
References
Lewinski, B. (2008). “The attention study: A study on the presence of selective attention in firearms officers.” Law Enforcement Executive Forum, 8(6), 107-139.
Hueske, E. E. (2006). Practical Analysis and Reconstruction of Shooting Incidents. Boca Raton, FL: CRC/Taylor & Francis.
[471 U.S. 1, 5] 40-7-108, 1982.
42 U.S.C.2401, 1983.
710 F. 2d 240, 1983.
710 F.2d 247, 1983.
Pp. 471 U. S. 7-12.
Pp. 471 U.S. 12-20.
