U.S. Supreme Court Tennessee v. Garner, 471 U.S. 1 (1985) Tennessee v. Garner No. 83-1035 Argued October 30, 1984 Decided March 27, 1985* 471 U.S.
1 APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR THE SIXTH
CIRCUIT JUSTICE WHITE delivered the opinion of the Court.

															This case requires us to determine the constitutionality of the
use of deadly force to prevent the escape of an apparently unarmed
suspected felon. We conclude that such force may 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. I At about 10:45 p. m. on October 3, 1974, Memphis Police Officers
Elton Hymon and Leslie Wright were dispatched to answer a "prowler
inside call." Upon arriving at the scene, they saw a woman standing
on her porch and gesturing toward the adjacent house. [ Footnote 1 ] She told them she had heard
glass breaking and that "they" or "someone" was breaking in next
door. While Wright radioed the dispatcher to say that they were on
the scene, Hymon went behind the house. He heard a door slam and
saw someone run across the backyard. The fleeing suspect, who was
appellee-respondent's decedent, Edward Garner, stopped at a
6-feet-high chain link fence at the edge of the yard. With the aid
of a flashlight, Hymon was able to see Garner's face and hands. He
saw no sign of a weapon, and, though not certain, was "reasonably
sure" and "figured" that Garner was unarmed. App. 41, 56; Record
219. He thought Garner was 17 or 18 years old and [4 ]

															about 5' 5" or 5' 7" tall. [ Footnote 2 ] While Garner was crouched at the base of the
fence, Hymon called out "police, halt" and took a few steps toward
him. Garner then began to climb over the fence. Convinced that, if
Garner made it over the fence, he would elude capture, [ Footnote 3 ] Hymon shot him. The bullet hit
Garner in the back of the head. Garner was taken by ambulance to a
hospital, where he died on the operating table. Ten dollars and a
purse taken from the house were found on his body. [ Footnote 4 ]

															In using deadly force to prevent the escape, Hymon was acting
under the authority of a Tennessee statute and pursuant to Police
Department policy. The statute provides that

															"[i]f, after notice of the intention to arrest the defendant, he
either flee or forcibly resist, the officer may use all the
necessary means to effect the arrest."

															Tenn.Code Ann. [5 ]

															40-7-108 (1982). [ Footnote
5 ] The Department policy was slightly more restrictive than the
statute, but still allowed the use of deadly force in cases of
burglary. App. 140-144. The incident was reviewed by the Memphis
Police Firearm's Review Board and presented to a grand jury.
Neither took any action. Id. at 57.

															Garner's father then brought this action in the Federal District
Court for the Western District of Tennessee, seeking damages under
42 U.S.C. 1983 for asserted violations of Garner's constitutional
rights. The complaint alleged that the shooting violated the
Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the
United States Constitution. It named as defendants Officer Hymon,
the Police Department, its Director, and the Mayor and city of
Memphis. After a 3-day bench trial, the District Court entered
judgment for all defendants. It dismissed the claims against the
Mayor and the Director for lack of evidence. It then concluded that
Hymon's actions were authorized by the Tennessee statute, which in
turn was constitutional. Hymon had employed the only reasonable and
practicable means of preventing Garner's escape. Garner had
"recklessly and heedlessly attempted to vault over the fence to
escape, thereby assuming the risk of being fired upon." App. to
Pet. for Cert. A10.

															The Court of Appeals for the Sixth Circuit affirmed with regard
to Hymon, finding that he had acted in good faith reliance on the
Tennessee statute, and was therefore within the scope of his
qualified immunity. 600 F.2d 52 (1979). It remanded for
reconsideration of the possible liability of the city, however, in
light of Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), which had come down after the District Court's decision.
The District Court was [6 ]

															directed to consider whether a city enjoyed a qualified
immunity, whether the use of deadly force and hollow point bullets
in these circumstances was constitutional, and whether any
unconstitutional municipal conduct flowed from a "policy or custom"
as required for liability under Monell. 600 F.2d at
54-55.

															The District Court concluded that Monell did not affect
its decision. While acknowledging some doubt as to the possible
immunity of the city, it found that the statute, and Hymon's
actions, were constitutional. Given this conclusion, it declined to
consider the "policy or custom" question. App. to Pet. for Cert.
A37-A39.

															The Court of Appeals reversed and remanded. 710 F.2d 240 (1983).
It reasoned that the killing of a fleeing suspect is a "seizure"
under the Fourth Amendment, [ Footnote 6 ] and is therefore constitutional only if
"reasonable." The Tennessee statute failed as applied to this case,
because it did not adequately limit the use of deadly force by
distinguishing between felonies of different magnitudes -- "the
facts, as found, did not justify the use of deadly force under the
Fourth Amendment." Id. at 246. Officers cannot resort to
deadly force unless they

															"have probable cause . . . to believe that the suspect [has
committed a felony and] poses a threat to the safety of the
officers or a danger to the community if left at large." Ibid. [ Footnote
7 ] [7 ]

															The State of Tennessee, which had intervened to defend the
statute, see 28 U.S.C. 2403(b), appealed to this Court.
The city filed a petition for certiorari. We noted probable
jurisdiction in the appeal, and granted the petition. 465 U.S. 1098
(1984). II Whenever an officer restrains the freedom of a person to walk
away, he has seized that person. United States v.
Brignoni-Ponce, 422
U.S. 873 , 878 (1975). While it is not always clear just
when minimal police interference becomes a seizure, see United
States v. Mendenhall, 446 U. S. 544 (1980), there can be no question that apprehension by the use of
deadly force is a seizure subject to the reasonableness requirement
of the Fourth Amendment. A A police officer may arrest a person if he has probable cause to
believe that person committed a crime. E.g., United States v.
Watson, 423 U. S. 411 (1976). Petitioners and appellant argue that, if this requirement
is satisfied, the Fourth Amendment has nothing to say about how
that seizure is made. This submission ignores the many cases in
which this Court, by balancing the extent of the intrusion against
the need for it, has examined the reasonableness of [8 ]

															the manner in which a search or seizure is conducted. To
determine the constitutionality of a seizure,

															"[w]e must balance the nature and quality of the intrusion on
the individual's Fourth Amendment interests against the importance
of the governmental interests alleged to justify the
intrusion." United States v. Place, 462
U.S. 696 , 703 (1983); see Delaware v. Prouse, 440
U.S. 648 , 654 (1979); United States v.
Martinez-Fuerte, 428
U.S. 543 , 555 (1976). We have described "the balancing
of competing interests" as "the key principle of the Fourth
Amendment." Michigan v. Summers, 452
U.S. 692 , 700 , n. 12 (1981). See also Camara v.
Municipal Court, 387
U.S. 523 , 536 -537 (1967). Because one of the factors is
the extent of the intrusion, it is plain that reasonableness
depends on not only when a seizure is made, but also how it is
carried out. United States v. Ortiz, 422
U.S. 891 , 895 (1975); Terry v. Ohio, 392 U.S.
1 , 28 -29 (1968).

															Applying these principles to particular facts, the Court has
held that governmental interests did not support a lengthy
detention of luggage, United States v. Place, supra, an
airport seizure not "carefully tailored to its underlying
justification," Florida v. Royer, 460
U.S. 491 , 500 (1983) (plurality opinion), surgery under
general anesthesia to obtain evidence, Winston v. Lee, 471 U. S. 753 (1985), or detention for fingerprinting without probable cause, Davis v. Mississippi, 394 U. S. 721 (1969); Hayes v. Florida, 471
U. S. 811 (1985). On the other hand, under the same
approach it has upheld the taking of fingernail scrapings from a
suspect, Cupp v. Murphy, 412 U. S. 291 (1973), an unannounced entry into a home to prevent the destruction
of evidence, Ker v. California, 374 U. S.
23 (1963), administrative housing inspections without
probable cause to believe that a code violation will be found, Camara v. Municipal Court, supra, and a blood test of a
drunken-driving suspect, Schmerber v. California, 384 U. S. 757 (1966). In each of these cases, the question was whether [9 ]

															the totality of the circumstances justified a particular sort of
search or seizure. B The same balancing process applied in the cases cited above
demonstrates that, notwithstanding probable cause to seize a
suspect, an officer may not always do so by killing him. The
intrusiveness of a seizure by means of deadly force is unmatched.
The suspect's fundamental interest in his own life need not be
elaborated upon. The use of deadly force also frustrates the
interest of the individual, and of society, in judicial
determination of guilt and punishment. Against these interests are
ranged governmental interests in effective law enforcement. [ Footnote 8 ] It is argued that overall
violence will be reduced by encouraging the peaceful submission of
suspects who know that they may be shot if they flee. Effectiveness
in making arrests requires the resort to deadly [10 ]

															force, or at least the meaningful threat thereof. "Being able to
arrest such individuals is a condition precedent to the state's
entire system of law enforcement." Brief for Petitioners 14.

															Without in any way disparaging the importance of these goals, we
are not convinced that the use of deadly force is a sufficiently
productive means of accomplishing them to justify the killing of
nonviolent suspects. Cf. Delaware v. Prouse, supra, at
659. The use of deadly force is a self-defeating way of
apprehending a suspect and so setting the criminal justice
mechanism in motion. If successful, it guarantees that that
mechanism will not be set in motion. And while the meaningful
threat of deadly force might be thought to lead to the arrest of
more live suspects by discouraging escape attempts, [ Footnote 9 ] the presently available
evidence does not support this thesis. [ Footnote 10 ] The fact is that a majority of police
departments [11 ]

															in this country have forbidden the use of deadly force against
nonviolent suspects. See infra at 18-19. If those charged
with the enforcement of the criminal law have abjured the use of
deadly force in arresting nondangerous felons, there is a
substantial basis for doubting that the use of such force is an
essential attribute of the arrest power in all felony cases. See Schumann v. McGinn, 307 Minn. 446, 472, 240 N.W.2d
525 , 540 (1976) (Rogosheske, J., dissenting in part).
Petitioners and appellant have not persuaded us that shooting
nondangerous fleeing suspects is so vital as to outweigh the
suspect's interest in his own life.

															The use of deadly force to prevent the escape of all felony
suspects, whatever the circumstances, is constitutionally
unreasonable. It is not better that all felony suspects die than
that they escape. Where the suspect poses no immediate threat to
the officer and no threat to others, the harm resulting from
failing to apprehend him does not justify the use of deadly force
to do so. It is no doubt unfortunate when a suspect who is in sight
escapes, but the fact that the police arrive a little late or are a
little slower afoot does not always justify killing the suspect. A
police officer may not seize an unarmed, nondangerous suspect by
shooting him dead. The Tennessee statute is unconstitutional
insofar as it authorizes the use of deadly force against such
fleeing suspects.

															It is not, however, unconstitutional on its face. Where the
officer has probable cause to believe that the suspect poses a
threat of serious physical harm, either to the officer or to
others, it is not constitutionally unreasonable to prevent escape
by using deadly force. 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 [12 ]

															feasible, some warning has been given. As applied in such
circumstances, the Tennessee statute would pass constitutional
muster. III A It is insisted that the Fourth Amendment must be construed in
light of the common law rule, which allowed the use of whatever
force was necessary to effect the arrest of a fleeing felon, though
not a misdemeanant. As stated in Hale's posthumously published
Pleas of the Crown:

															"[I]f persons that are pursued by these officers for felony or
the just suspicion thereof . . . shall not yield themselves to
these officers, but shall either resist or fly before they are
apprehended or being apprehended shall rescue themselves and resist
or fly, so that they cannot be otherwise apprehended, and are upon
necessity slain therein, because they cannot be otherwise taken, it
is no felony."

															2 M. Hale, Historia Placitorum Coronae 85 (1736). See
also 4 W. Blackstone, Commentaries *289. Most American
jurisdictions also imposed a flat prohibition against the use of
deadly force to stop a fleeing misdemeanant, coupled with a general
privilege to use such force to stop a fleeing felon. E.g.,
Holloway v. Moser, 193 N.C. 185, 136 S.E. 375 (1927); State v. Smith, 127 Iowa 534, 535, 103 N.W. 944, 945
(1905); Reneau v. State, 70 Tenn. 720 (1879); Brooks
v. Commonwealth, 61 Pa. 352 (1869); Roberts v. State, 14 Mo. 138 (1851); see generally R. Perkins & R.
Boyce, Criminal Law 1098-1102 (3d ed.1982); Day, Shooting the
Fleeing Felon: State of the Law, 14 Crim.L.Bull. 285, 286-287
(1978); Wilgus, Arrest Without a Warrant, 22 Mich.L.Rev. 798,
807-816 (1924). But see Storey v. State, 71 Ala. 329
(1882); State v. Bryant, 65 N.C. 327, 328 (1871); Caldwell v. State, 41 Tex. 86 (1874). [13 ]

															The State and city argue that, because this was the prevailing
rule at the time of the adoption of the Fourth Amendment and for
some time thereafter, and is still in force in some States, use of
deadly force against a fleeing felon must be "reasonable." It is
true that this Court has often looked to the common law in
evaluating the reasonableness, for Fourth Amendment purposes, of
police activity. See, e.g., United States v. Watson, 423
U.S. 411 , 418 -419 (1976); Gersten v. Pugh, 420
U.S. 103 , 111 , 114 (1975); Carroll v. United
States, 267
U.S. 132 , 149 -153 (1925). On the other hand, it

															"has not simply frozen into constitutional law those law
enforcement practices that existed at the time of the Fourth
Amendment's passage." Payton v. New York, 445
U.S. 573 , 591 , n. 33 (1980). Because of sweeping change
in the legal and technological context, reliance on the common law
rule in this case would be a mistaken literalism that ignores the
purposes of a historical inquiry. B It has been pointed out many times that the common law rule is
best understood in light of the fact that it arose at a time when
virtually all felonies were punishable by death. [ Footnote 11 ]

															"Though effected without the protections and formalities of an
orderly trial and conviction, the killing of a resisting or [14 ]

															fleeing felon resulted in no greater consequences than those
authorized for punishment of the felony of which the individual was
charged or suspected."

															American Law Institute, Model Penal Code 3.07, Comment 3, p. 56
(Tentative Draft No. 8, 1958) (hereinafter Model Penal Code
Comment). Courts have also justified the common law rule by
emphasizing the relative dangerousness of felons. See, e.g.,
Schumann v. McGinn, 307 Minn. at 458, 240 N.W.2d at 533; Holloway v. Moser, supra, at 187, 136 S.E. at 376
(1927).

															Neither of these justifications makes sense today. Almost all
crimes formerly punishable by death no longer are or can be. See, e.g., Enmund v. Florida, 458 U.
S. 782 (1982); Coker v. Georgia, 433 U.
S. 584 (1977). And while in earlier times "the gulf
between the felonies and the minor offences was broad and deep," 2
Pollock & Maitland 467, n. 3; Carroll v. United States,
supra, at 158, today the distinction is minor, and often
arbitrary. Many crimes classified as misdemeanors, or nonexistent,
at common law are now felonies. Wilgus, 22 Mich.L.Rev. at 572-573.
These changes have undermined the concept, which was questionable
to begin with, that use of deadly force against a fleeing felon is
merely a speedier execution of someone who has already forfeited
his life. They have also made the assumption that a "felon" is more
dangerous than a misdemeanant untenable. Indeed, numerous
misdemeanors involve conduct more dangerous than many felonies.
[ Footnote 12 ]

															There is an additional reason why the common law rule cannot be
directly translated to the present day. The common law rule
developed at a time when weapons were rudimentary. Deadly force
could be inflicted almost solely in a hand-to-hand struggle during
which, necessarily, the safety [15 ]

															of the arresting officer was at risk. Handguns were not carried
by police officers until the latter half of the last century. L.
Kennett & J. Anderson, The Gun in America 150-151 (1975). Only
then did it become possible to use deadly force from a distance as
a means of apprehension. As a practical matter, the use of deadly
force under the standard articulation of the common law rule has an
altogether different meaning -- and harsher consequences -- now
than in past centuries. See Wechsler & Michael, A
Rationale for the Law of Homicide: I, 37 Colum.L.Rev. 701, 741
(1937). [ Footnote 13 ]

															One other aspect of the common law rule bears emphasis. It
forbids the use of deadly force to apprehend a misdemeanant,
condemning such action as disproportionately severe. See
Holloway v. Moser, 193 N.C., at 187, 136 S.E. at 376; State v. Smith, 127 Iowa at 535, 103 N.W. at 945. See
generally Annot., 83 A.L.R. 3d 238 (1978).

															In short, though the common law pedigree of Tennessee's rule is
pure on its face, changes in the legal and technological context
mean the rule is distorted almost beyond recognition when literally
applied. C In evaluating the reasonableness of police procedures under the
Fourth Amendment, we have also looked to prevailing [16 ]

															rules in individual jurisdictions. See, e.g., United States
v. Watson, 423 U.S. at 421-422. The rules in the States are
varied. See generally Comment, 18 Ga.L.Rev. 137, 140-144
(1983). Some 19 States have codified the common law rule, [ Footnote 14 ] though in two of
these the courts have significantly limited the statute. [ Footnote 15 ] Four States, though
without a relevant statute, apparently retain the common law rule.
[ Footnote 16 ] Two States
have adopted the Model Penal Code's [17 ]

															provision verbatim. [ Footnote
17 ] Eighteen others allow, in slightly varying language, the
use of deadly force only if the suspect has committed a felony
involving the use or threat of physical or deadly force, or is
escaping with a deadly weapon, or is likely to endanger life or
inflict serious physical injury if not arrested. [ Footnote 18 ] Louisiana and Vermont, though
without statutes or case law on point, do forbid the use of deadly
force to prevent any but violent felonies. [ Footnote 19 ] The remaining States either have no
relevant statute or case law or have positions that are unclear.
[ Footnote 20 ] [18 ]

															It cannot be said that there is a constant or overwhelming trend
away from the common law rule. In recent years, some States have
reviewed their laws and expressly rejected abandonment of the
common law rule. [ Footnote
21 ] Nonetheless, the long-term movement has been away from the
rule that deadly force may be used against any fleeing felon, and
that remains the rule in less than half the States.

															This trend is more evident and impressive when viewed in light
of the policies adopted by the police departments themselves.
Overwhelmingly, these are more restrictive than the common law
rule. C. Milton, J. Halleck, J. Lardner, & G. Abrecht, Police
Use of Deadly Force 45-46 (1977). The Federal Bureau of
Investigation and the New York City Police Department, for example,
both forbid the use of firearms except when necessary to prevent
death or grievous bodily harm. Id. at 40-41; App. 83. For
accreditation by the Commission on Accreditation for Law
Enforcement Agencies, a department must restrict the use of deadly
force to situations where

															"the officer reasonably believes that the action is in defense
of human life . . . or in defense of any person in immediate danger
of serious physical injury."

															Commission on Accreditation for Law Enforcement Agencies, Inc.,
Standards for Law Enforcement Agencies 1-2 (1983) (italics
deleted). A 1974 study reported that the police department
regulations in a majority of the large cities of the United States
allowed the firing of a weapon only when a [19 ]

															felon presented a threat of death or serious bodily harm. Boston
Police Department, Planning & Research Division, The Use of
Deadly Force by Boston Police Personnel (1974), cited in Mattis
v. Schnarr, 547 F.2d 1007, 1016, n.19 (CA8 1976), vacated
as moot sub nom. Ashcroft v. Mattis, 431 U.
S. 171 (1977). Overall, only 7.5% of departmental and
municipal policies explicitly permit the use of deadly force
against any felon; 86.8% explicitly do not. K. Matulia, A Balance
of Forces: A Report of the International Association of Chiefs of
Police 161 (1982) (table). See also Record 1108-1368
(written policies of 44 departments). See generally W.
Geller & K. Karales, Split-Second Decisions 33-42 (1981); Brief
for Police Foundation et al. as Amici Curiae. In
light of the rules adopted by those who must actually administer
them, the older and fading common law view is a dubious indicium of
the constitutionality of the Tennessee statute now before us. D Actual departmental policies are important for an additional
reason. We would hesitate to declare a police practice of long
standing "unreasonable" if doing so would severely hamper effective
law enforcement. But the indications are to the contrary. There has
been no suggestion that crime has worsened in any way in
jurisdictions that have adopted, by legislation or departmental
policy, rules similar to that announced today. Amici note
that,

															"[a]fter extensive research and consideration, [they] have
concluded that laws permitting police officers to use deadly force
to apprehend unarmed, non-violent fleeing felony suspects actually
do not protect citizens or law enforcement officers, do not deter
crime or alleviate problems caused by crime, and do not improve the
crime-fighting ability of law enforcement agencies." Id. at 11. The submission is that the obvious state
interests in apprehension are not sufficiently served to warrant
the use of lethal weapons against all fleeing felons. See
supra at 10-11, and n. 10. [20 ]

															Nor do we agree with petitioners and appellant that the rule we
have adopted requires the police to make impossible, split-second
evaluations of unknowable facts. See Brief for Petitioners
25; Brief for Appellant 11. We do not deny the practical
difficulties of attempting to assess the suspect's dangerousness.
However, similarly difficult judgments must be made by the police
in equally uncertain circumstances. See, e.g., Terry v.
Ohio, 392 U.S. at 20, 27. Nor is there any indication that, in
States that allow the use of deadly force only against dangerous
suspects, see nn. 15 17-19 supra, the standard has been difficult to apply or has led
to a rash of litigation involving inappropriate second-guessing of
police officers' split-second decisions. Moreover, the highly
technical felony/misdemeanor distinction is equally, if not more,
difficult to apply in the field. An officer is in no position to
know, for example, the precise value of property stolen, or whether
the crime was a first or second offense. Finally, as noted above,
this claim must be viewed with suspicion in light of the similar
self-imposed limitations of so many police departments. IV The District Court concluded that Hymon was justified in
shooting Garner because state law allows, and the Federal
Constitution does not forbid, the use of deadly force to prevent
the escape of a fleeing felony suspect if no alternative means of
apprehension is available. See App. to Pet. for Cert.
A9-A11, A38. This conclusion made a determination of Garner's
apparent dangerousness unnecessary. The court did find, however,
that Garner appeared to be unarmed, though Hymon could not be
certain that was the case. Id. at A4, A23. See
also App. 41, 56; Record 219. Restated in Fourth Amendment
terms, this means Hymon had no articulable basis to think Garner
was armed.

															In reversing, the Court of Appeals accepted the District Court's
factual conclusions and held that "the facts, as found, did not
justify the use of deadly force." 710 F.2d at 246. [21 ]

															We agree. Officer Hymon could not reasonably have believed that
Garner -- young, slight, and unarmed -- posed any threat. Indeed,
Hymon never attempted to justify his actions on any basis other
than the need to prevent an escape. The District Court stated in
passing that "[t]he facts of this case did not indicate to Officer
Hymon that Garner was nondangerous.'" App. to Pet. for Cert.
A34. This conclusion is not explained, and seems to be based solely
on the fact that Garner had broken into a house at night. However,
the fact that Garner was a suspected burglar could not, without
regard to the other circumstances, automatically justify the use of
deadly force. Hymon did not have probable cause to believe that
Garner, whom he correctly believed to be unarmed, posed any
physical danger to himself or others. The dissent argues that the shooting was justified by the fact
that Officer Hymon had probable cause to believe that Garner had
committed a nighttime burglary. Post at 29, 32. While we
agree that burglary is a serious crime, we cannot agree that it is
so dangerous as automatically to justify the use of deadly force.
The FBI classifies burglary as a "property," rather than a
"violent," crime. See Federal Bureau of Investigation,
Uniform Crime Reports, Crime in the United States 1 (1984). [ Footnote 22 ] Although the armed
burglar would present a different situation, the fact that an
unarmed suspect has broken into a dwelling at night does not
automatically mean he is physically dangerous. This case
demonstrates as much. See also Solem v. Helm, 463
U.S. 277 , 296 -297, and nn. 22-23 (1983). In fact, the
available statistics demonstrate that burglaries only rarely
involve physical violence. During the 10-year period from
1973-1982, only 3.8% of all burglaries involved violent crime.
Bureau of Justice Statistics, House [22 ]

															hold Burglary 4 (1985). [ Footnote 23 ] See also T. Reppetto, Residential
Crime 17, 105 (1974); Conklin & Bittner, Burglary in a Suburb,
11 Criminology 208, 214 (1973). V We wish to make clear what our holding means in the context of
this case. The complaint has been dismissed as to all the
individual defendants. The State is a party only by virtue of 28
U.S.C. 2403(b), and is not subject to liability. The possible
liability of the remaining defendants -- the Police Department and
the city of Memphis -- hinges on Monell v. New York City Dept.
of Social Services, 436 U. S. 658 (1978), and is left for remand. We hold that the statute is invalid
insofar as it purported to give Hymon the authority to act as he
did. As for the policy of the Police Department, the absence of any
discussion of this issue by the courts below, and the uncertain
state of the record, preclude any consideration of its
validity.

															The judgment of the Court of Appeals is affirmed, and the case
is remanded for further proceedings consistent with this
opinion. So ordered. * Together with No. 83-1070, Memphs Police Department et al.
v. Garner et al., on certiorari to the same court.

															JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE
REHNQUIST join, dissenting.

															The Court today holds that the Fourth Amendment prohibits a
police officer from using deadly force as a last resort to [23 ]

															apprehend a criminal suspect who refuses to halt when fleeing
the scene of a nighttime burglary. This conclusion rests on the
majority's balancing of the interests of the suspect and the public
interest in effective law enforcement. Ante at 8.
Notwithstanding the venerable common law rule authorizing the use
of deadly force if necessary to apprehend a fleeing felon, and
continued acceptance of this rule by nearly half the States, ante at 14, 16-17, the majority concludes that Tennessee's
statute is unconstitutional inasmuch as it allows the use of such
force to apprehend a burglary suspect who is not obviously armed or
otherwise dangerous. Although the circumstances of this case are
unquestionably tragic and unfortunate, our constitutional holdings
must be sensitive both to the history of the Fourth Amendment and
to the general implications of the Court's reasoning. By
disregarding the serious and dangerous nature of residential
burglaries and the longstanding practice of many States, the Court
effectively creates a Fourth Amendment right allowing a burglary
suspect to flee unimpeded from a police officer who has probable
cause to arrest, who has ordered the suspect to halt, and who has
no means short of firing his weapon to prevent escape. I do not
believe that the Fourth Amendment supports such a right, and I
accordingly dissent. I The facts below warrant brief review because they highlight the
difficult, split-second decisions police officers must make in
these circumstances. Memphis Police Officers Elton Hymon and Leslie
Wright responded to a late-night call that a burglary was in
progress at a private residence. When the officers arrived at the
scene, the caller said that "they" were breaking into the house
next door. App. in No. 81-5605 (CA6), p. 207. The officers found
the residence had been forcibly entered through a window, and saw
lights [24 ]

															on inside the house. Officer Hymon testified that, when he saw
the broken window, he realized "that something was wrong inside," id. at 656, but that he could not determine whether anyone
-- either a burglar or a member of the household -- was within the
residence. Id. at 209. As Officer Hymon walked behind the
house, he heard a door slam. He saw Edward Eugene Garner run away
from the house through the dark and cluttered backyard. Garner
crouched next to a 6-foot-high fence. Officer Hymon thought Garner
was an adult, and was unsure whether Garner was armed because Hymon
"had no idea what was in the hand [that he could not see] or what
he might have had on his person." Id. at 658-659. In fact,
Garner was 15 years old and unarmed. Hymon also did not know
whether accomplices remained inside the house. Id. at 657.
The officer identified himself as a police officer and ordered
Garner to halt. Garner paused briefly and then sprang to the top of
the fence. Believing that Garner would escape if he climbed over
the fence, Hymon fired his revolver and mortally wounded the
suspected burglar.

															Appellee-respondent, the deceased's father, filed a 42 U.S.C.
1983 action in federal court against Hymon, the city of Memphis,
and other defendants, for asserted violations of Garner's
constitutional rights. The District Court for the Western District
of Tennessee held that Officer Hymon's actions were justified by a
Tennessee statute that authorizes a police officer to "use all the
necessary means to effect the arrest," if "after notice of the
intention to arrest the defendant, he either flee or forcibly
resist." Tenn.Code Ann. 40-7-108 (1982). As construed by the
Tennessee courts, this statute allows the use of deadly force only
if a police officer has probable cause to believe that a person has
committed a felony, the officer warns the person that he intends to
arrest him, and the officer reasonably believes that no means less
than such force will prevent the escape. See, e.g., Johnson v.
State, 173 Tenn. 134, 114 S.W.2d [25 ]

															(1938). The District Court held that the Tennessee statute is
constitutional, and that Hymon's actions, as authorized by that
statute, did not violate Garner's constitutional rights. The Court
of Appeals for the Sixth Circuit reversed on the grounds that the
Tennessee statute "authorizing the killing of an unarmed,
nonviolent fleeing felon by police in order to prevent escape"
violates the Fourth Amendment and the Due Process Clause of the
Fourteenth Amendment. 710 F.2d 240, 244 (1983).

															The Court affirms on the ground that application of the
Tennessee statute to authorize Officer Hymon's use of deadly force
constituted an unreasonable seizure in violation of the Fourth
Amendment. The precise issue before the Court deserves emphasis,
because both the decision below and the majority obscure what must
be decided in this case. The issue is not the constitutional
validity of the Tennessee statute on its face or as applied to some
hypothetical set of facts. Instead, the issue is whether the use of
deadly force by Officer Hymon under the circumstances of this case
violated Garner's constitutional rights. Thus, the majority's
assertion that a police officer who has probable cause to seize a
suspect "may not always do so by killing him," ante at 9,
is unexceptionable, but also of little relevance to the question
presented here. The same is true of the rhetorically stirring
statement that "[t]he use of deadly force to prevent the escape of
all felony suspects, whatever the circumstances, is
constitutionally unreasonable." Ante at 11. The question
we must address is whether the Constitution allows the use of such
force to apprehend a suspect who resists arrest by attempting to
flee the scene of a nighttime burglary of a residence. II For purposes of Fourth Amendment analysis, I agree with the
Court that Officer Hymon "seized" Gamer by shooting him. Whether
that seizure was reasonable, and therefore permitted by the Fourth
Amendment, requires a careful balancing [26 ]

															of the important public interest in crime prevention and
detection and the nature and quality of the intrusion upon
legitimate interests of the individual. United States v.
Place, 462
U.S. 696 , 703 (1983). In striking this balance here, it
is crucial to acknowledge that police use of deadly force to
apprehend a fleeing criminal suspect falls within the "rubric of
police conduct . . . necessarily [involving] swift action
predicated upon the on-the-spot observations of the officer on the
beat." Terry v. Ohio, 392 U.S.
1 , 20 (1968). The clarity of hindsight cannot provide
the standard for judging the reasonableness of police decisions
made in uncertain and often dangerous circumstances. Moreover, I am
far more reluctant than is the Court to conclude that the Fourth
Amendment proscribes a police practice that was accepted at the
time of the adoption of the Bill of Rights and has continued to
receive the support of many state legislatures. Although the Court
has recognized that the requirements of the Fourth Amendment must
respond to the reality of social and technological change, fidelity
to the notion of constitutional -- as opposed to purely
judicial -- limits on governmental action requires us to impose a
heavy burden on those who claim that practices accepted when the
Fourth Amendment was adopted are now constitutionally
impermissible. See, e.g., United States v. Watson, 423
U.S. 411 , 416 -421 (1976); Carroll v. United
States, 267
U.S. 132 , 149 -153 (1925). Cf. United States v.
Villamonte-Marquez, 462
U.S. 579 , 585 (1983) (noting "impressive historical
pedigree" of statute challenged under Fourth Amendment).

															The public interest involved in the use of deadly force as a
last resort to apprehend a fleeing burglary suspect relates
primarily to the serious nature of the crime. Household burglaries
not only represent the illegal entry into a person's home, but also
"pos[e] real risk of serious harm to others." Solem v.
Helm, 463
U.S. 277 , 315 -316 (1983) (BURGER, C.J., dissenting).
According to recent Department of Justice statistics,

															"[t]hree-fifths of all rapes in the home, [27 ]

															three-fifths of all home robberies, and about a third of home
aggravated and simple assaults are committed by burglars."

															Bureau of Justice Statistics Bulletin, Household Burglary 1
(January 1985). During the period 1973-1982, 2.8 million such
violent crimes were committed in the course of burglaries. Ibid. Victims of a forcible intrusion into their home by a
nighttime prowler will find little consolation in the majority's
confident assertion that "burglaries only rarely involve physical
violence." Ante at 21. Moreover, even if a particular
burglary, when viewed in retrospect, does not involve physical harm
to others, the "harsh potentialities for violence" inherent in the
forced entry into a home preclude characterization of the crime as
"innocuous, inconsequential, minor, or nonviolent.'" Solem
v. Helm, supra, at 316 (BURGER, C.J., dissenting). See
also Restatement of Torts 131, Comment g (1934) (burglary is
among felonies that normally cause or threaten death or serious
bodily harm); R. Perkins & R. Boyce, Criminal Law 1110 (3d
ed.1982) (burglary is dangerous felony that creates unreasonable
risk of great personal harm). Because burglary is a serious and dangerous felony, the public
interest in the prevention and detection of the crime is of
compelling importance. Where a police officer has probable cause to
arrest a suspected burglar, the use of deadly force as a last
resort might well be the only means of apprehending the suspect.
With respect to a particular burglary, subsequent investigation
simply cannot represent a substitute for immediate apprehension of
the criminal suspect at the scene. See President's
Commission on Law Enforcement and Administration of Justice, Task
Force Report: The Challenge of Crime in a Free Society 97 (1967).
Indeed, the Captain of the Memphis Police Department testified
that, in his city, if apprehension is not immediate, it is likely
that the suspect will not be caught. App. in No. 81-5605 (CA6), p.
334. Although some law enforcement agencies may choose to assume
the risk that a criminal will remain at large, the [28 ]

															Tennessee statute reflects a legislative determination that the
use of deadly force in prescribed circumstances will serve
generally to protect the public. Such statutes assist the police in
apprehending suspected perpetrators of serious crimes and provide
notice that a lawful police order to stop and submit to arrest may
not be ignored with impunity. See, e.g., Wiley v. Memphis
Police Department, 548 F.2d 1247, 1252-1253 (CA6), cert.
denied, 434 U.S. 822 (1977); Jones v. Marshall, 528
F.2d 132, 142 (CA2 1975).

															The Court unconvincingly dismisses the general deterrence
effects by stating that "the presently available evidence does not
support [the] thesis" that the threat of force discourages escape,
and that "there is a substantial basis for doubting that the use of
such force is an essential attribute to the arrest power in all
felony cases." Ante at 10, 11. There is no question that
the effectiveness of police use of deadly force is arguable, and
that many States or individual police departments have decided not
to authorize it in circumstances similar to those presented here.
But it should go without saying that the effectiveness or
popularity of a particular police practice does not determine its
constitutionality. Cf. Spaziano v. Florida, 468
U.S. 447 , 464 (1984) ("The Eighth Amendment is not
violated every time a State reaches a conclusion different from a
majority of its sisters over how best to administer its criminal
laws"). Moreover, the fact that police conduct pursuant to a state
statute is challenged on constitutional grounds does not impose a
burden on the State to produce social science statistics or to
dispel any possible doubts about the necessity of the conduct. This
observation, I believe, has particular force where the challenged
practice both predates enactment of the Bill of Rights and
continues to be accepted by a substantial number of the States.

															Against the strong public interests justifying the conduct at
issue here must be weighed the individual interests implicated in
the use of deadly force by police officers. The [29 ]

															majority declares that "[t]he suspect's fundamental interest in
his own life need not be elaborated upon." Ante at 9. This
blithe assertion hardly provides an adequate substitute for the
majority's failure to acknowledge the distinctive manner in which
the suspect's interest in his life is even exposed to risk. For
purposes of this case, we must recall that the police officer, in
the course of investigating a nighttime burglary, had reasonable
cause to arrest the suspect and ordered him to halt. The officer's
use of force resulted because the suspected burglar refused to heed
this command and the officer reasonably believed that there was no
means short of firing his weapon to apprehend the suspect. Without
questioning the importance of a person's interest in his life, I do
not think this interest encompasses a right to flee unimpeded from
the scene of a burglary. Cf. Payton v. New York, 445
U.S. 573 , 617 , n. 14 (1980) (WHITE, J., dissenting)
("[T]he policeman's hands should not be tied merely because of the
possibility that the suspect will fail to cooperate with legitimate
actions by law enforcement personnel"). The legitimate interests of
the suspect in these circumstances are adequately accommodated by
the Tennessee statute: to avoid the use of deadly force and the
consequent risk to his life, the suspect need merely obey the valid
order to halt.

															A proper balancing of the interests involved suggests that use
of deadly force as a last resort to apprehend a criminal suspect
fleeing from the scene of a nighttime burglary is not unreasonable
within the meaning of the Fourth Amendment. Admittedly, the events
giving rise to this case are, in retrospect, deeply regrettable. No
one can view the death of an unarmed and apparently nonviolent
15-year-old without sorrow, much less disapproval. Nonetheless, the
reasonableness of Officer Hymon's conduct for purposes of the
Fourth Amendment cannot be evaluated by what later appears to have
been a preferable course of police action. The officer pursued a
suspect in the darkened backyard of a house that from all
indications had just been burglarized. The [30 ]

															police officer was not certain whether the suspect was alone or
unarmed; nor did he know what had transpired inside the house. He
ordered the suspect to halt, and when the suspect refused to obey
and attempted to flee into the night, the officer fired his weapon
to prevent escape. The reasonableness of this action for purposes
of the Fourth Amendment is not determined by the unfortunate nature
of this particular case; instead, the question is whether it is
constitutionally impermissible for police officers, as a last
resort, to shoot a burglary suspect fleeing the scene of the
crime.

															Because I reject the Fourth Amendment reasoning of the majority
and the Court of Appeals, I briefly note that no other
constitutional provision supports the decision below. In addition
to his Fourth Amendment claim, appellee-respondent also alleged
violations of due process, the Sixth Amendment right to trial by
jury, and the Eighth Amendment proscription of cruel and unusual
punishment. These arguments were rejected by the District Court
and, except for the due process claim, not addressed by the Court
of Appeals. With respect to due process, the Court of Appeals
reasoned that statutes affecting the fundamental interest in life
must be "narrowly drawn to express only the legitimate state
interests at stake." 710 F.2d at 245. The Court of Appeals
concluded that a statute allowing police use of deadly force is
narrowly drawn, and therefore constitutional only if the use of
such force is limited to situations in which the suspect poses an
immediate threat to others. Id. at 246-247. Whatever the
validity of Tennessee's statute in other contexts, I cannot agree
that its application in this case resulted in a deprivation
"without due process of law." Cf. Baker v. McCollan, 443
U.S. 137 , 144 -145 (1979). Nor do I believe that a
criminal suspect who is shot while trying to avoid apprehension has
a cognizable claim of a deprivation of his Sixth Amendment right to
trial by jury. See Cunningham v. Ellington, 323 F.
Supp. 1072 , 1075-1076 (WD Tenn.1971) (three-judge court).
Finally, because there is no indication that the use [31 ]

															of deadly force was intended to punish, rather than to capture,
the suspect, there is no valid claim under the Eighth Amendment. See Bell v. Wolfish, 441
U.S. 520 , 538 -539 (1979). Accordingly, I conclude that
the District Court properly entered judgment against
appellee-respondent, and I would reverse the decision of the Court
of Appeals. III Even if I agreed that the Fourth Amendment was violated under
the circumstances of this case, I would be unable to join the
Court's opinion. The Court holds that deadly force may be used only
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." Ante at 11. The Court ignores the more general
implications of its reasoning. Relying on the Fourth Amendment, the
majority asserts that it is constitutionally unreasonable to use
deadly force against fleeing criminal suspects who do not appear to
pose a threat of serious physical harm to others. Ibid. By
declining to limit its holding to the use of firearms, the Court
unnecessarily implies that the Fourth Amendment constrains the use
of any police practice that is potentially lethal, no matter how
remote the risk. Cf. Los Angeles v. Lyons, 461 U. S.
95 (1983).

															Although it is unclear from the language of the opinion, I
assume that the majority intends the word "use" to include only
those circumstances in which the suspect is actually apprehended.
Absent apprehension of the suspect, there is no "seizure" for
Fourth Amendment purposes. I doubt that the Court intends to allow
criminal suspects who successfully escape to return later with 1983
claims against officers who used, albeit unsuccessfully, deadly
force in their futile attempt to capture the fleeing suspect. The
Court's opinion, despite its broad language, actually decides only
that the [32 ]

															shooting of a fleeing burglary suspect who was in fact neither
armed nor dangerous can support a 1983 action.

															The Court's silence on critical factors in the decision to use
deadly force simply invites second-guessing of difficult police
decisions that must be made quickly in the most trying of
circumstances. Cf. Payton v. New York, 445 U.S. at 619
(WHITE, J., dissenting). Police are given no guidance for
determining which objects, among an array of potentially lethal
weapons ranging from guns to knives to baseball bats to rope, will
justify the use of deadly force. The Court also declines to outline
the additional factors necessary to provide "probable cause" for
believing that a suspect "poses a significant threat of death or
serious physical injury," ante at 3, when the officer has
probable cause to arrest and the suspect refuses to obey an order
to halt. But even if it were appropriate in this case to limit the
use of deadly force to that ambiguous class of suspects, I believe
the class should include nighttime residential burglars who resist
arrest by attempting to flee the scene of the crime. We can expect
an escalating volume of litigation as the lower courts struggle to
determine if a police officer's split-second decision to shoot was
justified by the danger posed by a particular object and other
facts related to the crime. Thus, the majority opinion portends a
burgeoning area of Fourth Amendment doctrine concerning the
circumstances in which police officers can reasonably employ deadly
force. IV The Court's opinion sweeps broadly to adopt an entirely new
standard for the constitutionality of the use of deadly force to
apprehend fleeing felons. Thus, the Court "lightly brushe[s]
aside," Payton v. New York, supra, at 600, a longstanding
police practice that predates the Fourth Amendment and continues to
receive the approval of nearly half of the state legislatures. I
cannot accept the majority's creation of a constitutional right to
flight for burglary suspects [33 ]

															seeking to avoid capture at the scene of the crime. Whatever the
constitutional limits on police use of deadly force in order to
apprehend a fleeing felon, I do not believe they are exceeded in a
case in which a police officer has probable cause to arrest a
suspect at the scene of a residential burglary, orders the suspect
to halt, and then fires his weapon as a last resort to prevent the
suspect's escape into the night. I respectfully dissent. Footnotes [ Footnote 1 ]

															The owner of the house testified that no lights were on in the
house, but that a back door light was on. Record 160. Officer
Hymon, though uncertain, stated in his deposition that there were
lights on in the house. Id. at 209.

															[ Footnote 2 ]

															In fact, Garner, an eighth-grader, was 15. He was 5' 4" tall and
weighed somewhere around 100 or 110 pounds. App. to Pet. for Cert.
A5.

															[ Footnote 3 ]

															When asked at trial why he fired, Hymon stated:

															"Well, first of all it was apparent to me from the little bit
that I knew about the area at the time that he was going to get
away because, number 1, I couldn't get to him. My partner then
couldn't find where he was because, you know, he was late coming
around. He didn't know where I was talking about. I couldn't get to
him because of the fence here, I couldn't have jumped this fence
and come up, consequently jumped this fence and caught him before
he got away because he was already up on the fence, just one leap
and he was already over the fence, and so there is no way that I
could have caught him."

															App. 52.

															He also stated that the area beyond the fence was dark, that he
could not have gotten over the fence easily because he was carrying
a lot of equipment and wearing heavy boots, and that Garner, being
younger and more energetic, could have outrun him. Id. at
53-54.

															[ Footnote 4 ]

															Garner had rummaged through one room in the house, in which, in
the words of the owner, "[a]ll the stuff was out on the floors, all
the drawers was pulled out, and stuff was scattered all over." Id. at 34. The owner testified that his valuables were
untouched, but that, in addition to the purse and the 10 dollars,
one of his wife's rings was missing. The ring was not recovered. Id. at 34-35.

															[ Footnote 5 ]

															Although the statute does not say so explicitly, Tennessee law
forbids the use of deadly force in the arrest of a misdemeanant. See Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819
(1938).

															[ Footnote 6 ]

															"The right of the people to be secure in their persons . . .
against unreasonable searches and seizures, shall not be violated.
. . ." U.S.Const., Amdt. 4.

															[ Footnote 7 ]

															The Court of Appeals concluded that the rule set out in the
Model Penal Code "accurately states Fourth Amendment limitations on
the use of deadly force against fleeing felons." 710 F.2d at 247.
The relevant portion of the Model Penal Code provides:

															"The use of deadly force is not justifiable . . . unless (i) the
arrest is for a felony; and (ii) the person effecting the arrest is
authorized to act as a peace officer or is assisting a person whom
he believes to be authorized to act as a peace officer; and (iii)
the actor believes that the force employed creates no substantial
risk of injury to innocent persons; and (iv) the actor believes
that (1) the crime for which the arrest is made involved conduct
including the use or threatened use of deadly force; or (2) there
is a substantial risk that the person to be arrested will cause
death or serious bodily harm if his apprehension is delayed."

															American Law Institute, Model Penal Code 3.07(2)(b) (Proposed
Official Draft 1962).

															The court also found that "[a]n analysis of the facts of this
case under the Due Process Clause" required the same result,
because the statute was not narrowly drawn to further a compelling
state interest. 710 F.2d at 246-247. The court considered the
generalized interest in effective law enforcement sufficiently
compelling only when the the suspect is dangerous. Finally, the
court held, relying on Owen v. City of Independence, 445 U. S. 622 (1980), that the city was not immune.

															[ Footnote 8 ]

															The dissent emphasizes that subsequent investigation cannot
replace immediate apprehension. We recognize that this is so, see n 13, infra; indeed, that is the reason why there is any
dispute. If subsequent arrest were assured, no one would argue that
use of deadly force was justified. Thus, we proceed on the
assumption that subsequent arrest is not likely. Nonetheless, it
should be remembered that failure to apprehend at the scene does
not necessarily mean that the suspect will never be caught.

															In lamenting the inadequacy of later investigation, the dissent
relies on the report of the President's Commission on Law
Enforcement and Administration of Justice. It is worth noting that,
notwithstanding its awareness of this problem, the Commission
itself proposed a policy for use of deadly force arguably even more
stringent than the formulation we adopt today. See President's Commission on Law Enforcement and Administration of
Justice, Task Force Report: The Police 189 (1967). The Commission
proposed that deadly force be used only to apprehend

															"perpetrators who, in the course of their crime, threatened the
use of deadly force, or if the officer believes there is a
substantial risk that the person whose arrest is sought will cause
death or serious bodily harm if his apprehension is delayed."

															In addition, the officer would have "to know, as a virtual
certainty, that the suspect committed an offense for which the use
of deadly force is permissible." Ibid. [ Footnote 9 ]

															We note that the usual manner of deterring illegal conduct --
through punishment -- has been largely ignored in connection with
flight from arrest. Arkansas, for example, specifically excepts
flight from arrest from the offense of "obstruction of governmental
operations." The commentary notes that this

															"reflects the basic policy judgment that, absent the use of
force or violence, a mere attempt to avoid apprehension by a law
enforcement officer does not give rise to an independent
offense."

															Ark.Stat.Ann. 41-2802(3)(a) (1977) and commentary. In the few
States that do outlaw flight from an arresting officer, the crime
is only a misdemeanor. See, e.g., Ind.Code 35-44-3-3
(1982). Even forceful resistance, though generally a separate
offense, is classified as a misdemeanor. E.g., Ill.Rev.Stat., ch. 38, 1131-1 (1984); Mont.Code Ann. 45-7-301
(1984); N.H.Rev.Stat.Ann. 642:2 (Supp.1983); Ore.Rev.Stat. 162.315
(1983).

															This lenient approach does avoid the anomaly of automatically
transforming every fleeing misdemeanant into a fleeing felon --
subject, under the common law rule, to apprehension by deadly force
-- solely by virtue of his flight. However, it is in real tension
with the harsh consequences of flight in cases where deadly force
is employed. For example, Tennessee does not outlaw fleeing from
arrest. The Memphis City Code does, 22-34.1 (Supp. 17, 1971),
subjecting the offender to a maximum fine of $50, 1-8 (1967). Thus,
Garner's attempted escape subjected him to (a) a $50 fine, and (b)
being shot.

															[ Footnote 10 ] See Sherman, Reducing Police Gun Use, in Control in the
Police Organization 98, 120-123 (M. Punch ed.1983); Fyfe,
Observations on Police Deadly Force, 27 Crime & Delinquency
376, 378-381 (1981); W. Geller & K. Karales, Split-Second
Decisions 67 (1981); App. 84 (affidavit of William Bracey, Chief of
Patrol, New York City Police Department). See generally Brief for Police Foundation et al. as Amici
Curiae. [ Footnote 11 ]

															The roots of the concept of a "felony" lie not in capital
punishment but in forfeiture. 2 F. Pollock & F. Maitland, The
History of English Law 465 (2d ed.1909) (hereinafter Pollock &
Maitland). Not all felonies were always punishable by death. See id. at 466-467, n. 3. Nonetheless, the link was
profound. Blackstone was able to write:

															"The idea of felony is indeed so generally connected with that
of capital punishment that we find it hard to separate them; and to
this usage the interpretations of the law do now conform. And
therefore if a statute makes any new offence felony, the law
implies that is shall be punished with death, viz. by
hanging, as well as with forfeiture. . . ."

															4 W. Blackstone, Commentaries *98. See also R. Perkins
& R. Boyce, Criminal Law 14-15 (3d ed.1982); 2 Pollock &
Maitland 511.

															[ Footnote 12 ]

															White-collar crime, for example, poses a less significant
physical threat than, say, drunken driving. See Welsh v.
Wisconsin, 466 U. S. 740 (1984); id. at 755 (BLACKMUN, J., concurring). See Model Penal Code Comment at 57.

															[ Footnote 13 ]

															It has been argued that sophisticated techniques of apprehension
and increased communication between the police in different
jurisdictions have made it more likely that an escapee will be
caught than was once the case, and that this change has also
reduced the "reasonableness" of the use of deadly force to prevent
escape. E.g., Sherman, Execution Without Trial: Police
Homicide and the Constitution, 33 Vand.L.Rev. 71, 76 (1980). We are
unaware of any data that would permit sensible evaluation of this
claim. Current arrest rates are sufficiently low, however, that we
have some doubt whether, in past centuries, the failure to arrest
at the scene meant that the police had missed their only chance in
a way that is not presently the case. In 1983, 21% of the offenses
in the Federal Bureau of Investigation crime index were cleared by
arrest. Federal Bureau of Investigation, Uniform Crime Reports,
Crime in the United States 159 (1984). The clearance rate for
burglary was 15%. Ibid. [ Footnote 14 ]

															Ala.Code 13A-3-27 (1982); Ark.Stat.Ann. 41-510 (1977); Cal.Penal
Code Ann. 196 (West 1970); Conn.Gen.Stat. 53a-22 (1972); Fla.Stat.
776.05 (1983); Idaho Code 19-610 (1979); Ind.Code 35-41-3-3 (1982);
Kan.Stat.Ann. 21-3215 (1981); Miss.Code Ann. 97-3-15(d)
(Supp.1984); Mo.Rev.Stat. 563.046 (1979); Nev.Rev.Stat. 200.140
(1983); N.M.Stat.Ann. 30-2-6 (1984); Okla.Stat., Tit. 21, 732
(1981); R.I.Gen.Laws 12-7-9 (1981); S.D.Codified Laws 22-16-32,
22-16-33 (1979); Tenn.Code Ann. 40-7-108 (1982); Wash.Rev.Code 9 A.
16.040(3) (1977). Oregon limits use of deadly force to violent
felons, but also allows its use against any felon if "necessary."
Ore.Rev.Stat. 161.239 (1983). Wisconsin's statute is ambiguous, but
should probably be added to this list. Wis.Stat. 939.45(4)
(1981-1982) (officer may use force necessary for "a reasonable
accomplishment of a lawful arrest"). But see Clark v.
Ziedonis, 368 F.
Supp. 544 (ED Wis.1973), aff'd on other grounds, 513
F.2d 79 (CA7 1975).

															[ Footnote 15 ]

															In California, the police may use deadly force to arrest only if
the crime for which the arrest is sought was "a forcible and
atrocious one which threatens death or serious bodily harm," or
there is a substantial risk that the person whose arrest is sought
will cause death or serious bodily harm if apprehension is delayed. Kortum v. Alkire, 69 Cal. App. 3d
325 , 333, 138 Cal. Rptr. 26, 30-31 (1977). See also People
v. Ceballos, 12 Cal. 3d
470 , 476-484, 526 P.2d 241, 245-250 (1974); Long Beach
Police Officers Assn. v. Long Beach, 61 Cal. App. 3d
364 , 373-374, 132 Cal. Rptr. 348, 353-354 (1976). In Indiana,
deadly force may be used only to prevent injury, the imminent
danger of injury or force, or the threat of force. It is not
permitted simply to prevent escape. Rose v.
State, 431 N.E.2d
521 (Ind.App.1982).

															[ Footnote 16 ]

															These are Michigan, Ohio, Virginia, and West Virginia. Werner v. Hartfelder, 113 Mich.App. 747, 318 N.W.2d 825
(1982); State v. Foster, 60 Ohio Misc. 46, 59-66, 396
N.E.2d 246, 255-258 (Com.Pl.1979) (citing cases); Berr v.
Hamman, 203 Va. 596, 125 S.E.2d 851 (1962); Thompson v.
Norfolk & W. R. Co., 116 W.Va. 705, 711-712, 182 S.E. 880,
883-884 (1935)

															[ Footnote 17 ]

															Haw.Rev.Stat. 703-307 (1976); Neb.Rev.Stat. 28-1412 (1979).
Massachusetts probably belongs in this category. Though it once
rejected distinctions between felonies, Uraneck v. Lima, 359 Mass. 749, 750, 269 N.E.2d 670, 671 (1971), it has since
adopted the Model Penal Code limitations with regard to private
citizens, Commonwealth v. Klein, 372 Mass. 823, 363
N.E.2d 1313 (1977), and seems to have extended that decision to
police officers, Julian v. Randazzo, 380 Mass. 391, 403
N.E.2d 931 (1980).

															[ Footnote 18 ]

															Alaska Stat.Ann. 11.81.370(a) (1983); Ariz.Rev.Stat.Ann. 13-410
(1978); Colo.Rev.Stat. 18-1-707 (1978); Del.Code Ann., Tit. 11, 467
(1979) (felony involving physical force and a substantial risk that
the suspect will cause death or serious bodily injury or will never
be recaptured); Ga.Code 16-3-21(a) (1984); Ill.Rev.Stat., ch. 38,
7-5 (1984); Iowa Code 804.8 (1983) (suspect has used or threatened
deadly force in commission of a felony, or would use deadly force
if not caught); Ky.Rev.Stat. 503.090 (1984) (suspect committed
felony involving use or threat of physical force likely to cause
death or serious injury, and is likely to endanger life unless
apprehended without delay); Me.Rev.Stat.Ann., Tit. 17-A, 107 (1983)
(commentary notes that deadly force may be used only "where the
person to be arrested poses a threat to human life"); Minn.Stat.
609.066 (1984); N.H.Rev.Stat.Ann. 627:5(II) (Supp.1983);
N.J.Stat.Ann. 2C-3-7 (West 1982); N.Y. Penal Law 35.30 (McKinney
Supp.1984-1985); N.C.Gen.Stat. 15A-401 (1983); N.D.Cent.Code
12.1-05-07.2.d (1976); 18 Pa.Cons.Stat. 508 (1982); Tex.Penal Code
Ann. 9.51(c) (1974); Utah Code Ann. 76-2-404 (1978).

															[ Footnote 19 ] See La.Rev.Stat.Ann. 14:20(2) (West 1974);
Vt.Stat.Ann., Tit. 13, 2305 (1974 and Supp.1984). A Federal
District Court has interpreted the Louisiana statute to limit the
use of deadly force against fleeing suspects to situations where
"life itself is endangered or great bodily harm is threatened." Sauls v. Hutto, 304 F.
Supp. 124 , 132 (ED
La.1969).

															[ Footnote 20 ]

															These are Maryland, Montana, South Carolina, and Wyoming. A
Maryland appellate court has indicated, however, that deadly force
may not be used against a felon who "was in the process of fleeing
and, at the time, presented no immediate danger to . . . anyone. .
. ." Giant Food, Inc. v. Scherry, 51 Md.App. 586, 589,
596, 444 A.2d 483 , 486, 489 (1982).

															[ Footnote 21 ]

															In adopting its current statute in 1979, for example, Alabama
expressly chose the common law rule over more restrictive
provisions. Ala.Code 13A-3-27, Commentary, pp. 67-63 (1982).
Missouri likewise considered but rejected a proposal akin to the
Model Penal Code rule. See Mattis v. Schnarr, 547 F.2d
1007, 1022 (CA8 1976) (Gibson, C.J., dissenting), vacated as
moot sub nom. Ashcroft v. Mattis, 431 U.
S. 171 (1977). Idaho, whose current statute codifies the
common law rule, adopted the Model Penal Code in 1971, but
abandoned it in 1972.

															[ Footnote 22 ]

															In a recent report, the Department of Corrections of the
District of Columbia also noted that "there is nothing inherently
dangerous or violent about the offense," which is a crime against
property. D.C. Department of Corrections, Prisoner Screening
Project 2 (1985).

															[ Footnote 23 ]

															The dissent points out that three-fifths of all rapes in the
home, three-fifths of all home robberies, and about a third of home
assaults are committed by burglars. Post at 26-27. These
figures mean only that, if one knows that a suspect committed a
rape in the home, there is a good chance that the suspect is also a
burglar. That has nothing to do with the question here, which is
whether the fact that someone has committed a burglary indicates
that he has committed, or might commit, a violent crime.

															The dissent also points out that this 3.8% adds up to 2.8
million violent crimes over a 10-year period, as if to imply that
today's holding will let loose 2.8 million violent burglars. The
relevant universe is, of course, far smaller. At issue is only that
tiny fraction of cases where violence has taken place and an
officer who has no other means of apprehending the suspect is
unaware of its occurrence.