When may police shoot a fleeing suspect?
On June 28th, New York state police apprehended fugitive David Sweat, who had escaped from a maximum security prison with another inmate, Richard Matt. According to Mr. Sweat, he separated from Mr. Matt after arguing about Mr. Matt’s alcohol use, claiming Mr. Matt was too old and out of shape to keep up with him. Shortly thereafter, Matt was shot and killed by police, who say he pointed a gun at them. (If true, entirely legal.)
Mr. Sweat, on the other hand, was unarmed and fleeing when he was shot by police two days later. He’s currently hospitalized and expected to recover.
After weeks of around-the-clock media frenzy on this story, I see no one asking a question that’s often been asked in other cases: did the police have the right to shoot Mr. Sweat in the back? Because that appears to be what happened, though media reports carefully use the word “torso,” as in this New York Times report:
Sergeant Cook, a firearms instructor who was patrolling by himself, gave chase and finally opened fire, striking Mr. Sweat twice in the torso, because he realized the fugitive was going to make it to the woods and possibly disappear, Mr. D’Amico said.
Unless he was about to disappear into the woods by running backwards, the shot was to Mr. Sweat’s back.
In general, police cannot shoot fleeing suspects merely because they are running away, on the grounds that if they didn’t, the suspect would get away. In a landmark 1985 Supreme Court case, Tennessee vs. Garner, fifteen year old Edward Garner had taken ten dollars and a purse, and was jumping a fence to escape from police. To prevent his escape, officers shot and killed him. Noting that we no longer have the death penalty for most felonies, and that shooting fleeing suspects has little or no deterrence value, the Court held that police may not shoot at an escapee unless the officer reasonably believes that he poses a significant risk of great bodily injury or death to the officer or others in the community.
Was that the case here? Mr. Sweat clearly posed no danger to the officer, since he was running away from him. He was not only unarmed, but he had harmed no one during the three weeks since he’d escaped from prison, or during his incarceration. So could he be said to pose a grave danger to others? On the other hand, Mr. Sweat was a convicted murderer (of a sheriff’s deputy) and a prison escapee. Perhaps those facts alone were sufficient to say that he posed a significant physical danger to the community. If that’s the case, then anyone who has committed a violent felony, even decades before, could lawfully be shot in the back by police. This seems to me to be a deviation from Tennessee’s holding, which disfavors police killings of citizens, even fleeing felons.
In contrast, Walter Scott was shot in the back and killed by North Charleston police officer Michael Slager, who is now charged with murder. Mr. Slager, unaware a citizen was video recording the encounter, also appears to have planted a gun next to Mr. Scott’s body. Mr. Scott was stopped for a broken brake light, and probably ran from police because he’d previously been jailed for failing to pay child support, which had caused him to lose his previous job.
This is how our criminal justice system grinds down the poor.
At any rate, everyone agrees the shooting of Walter Scott does not comply with Tennessee. He was running, but no one was threatened. Walter Scott endangered no one.
In Ferguson, police officer Darren Wilson was said by several witnesses to have shot at a fleeing unarmed Mike Brown, who had no criminal record. Autopsy results showed bullet holes in the back of Mr. Brown’s arm. In the grand jury, the prosecutors gave jurors the wrong law to follow, telling them simply that a police officer could use deadly force to effectuate an arrest. No. Incorrect. In Tennessee the Supreme Court required every police officer in America to hold their fire except in the narrow circumstance of significant risk of grave physical danger.
Darren Wilson was not charged with a crime. He has maintained that Mike Brown grabbed his gun, though the gun was never fingerprinted.
Three high profile cases, three very different outcomes. While the Supreme Court has spoken clearly on this issue, there is little political will to investigate or charge police officers who shoot despised criminals like David Sweat. In the movies, police often shoot the bad guys, taking any opportunity they can to get the kill. The audience cheers. In the real world, these cases should be closely examined to determine whether our police are respecting human life in each and every case, as the law requires.
The views and opinions expressed here are those of the author and do not necessarily represent those of Avvo.
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