In 1974, a Memphis police officer shot and killed a man over $10 and a purse.
At around 10:45 p.m., two officers arrived at a home to investigate reports of a prowler. There, they discovered 15 year-old Edward Garner at the base of a chain link fence at the edge of the house’s yard. Though one of the officers called out for Garner to “halt,” Garner started to climb the fence instead — so the officer shot Garner in the head, believing that Garner would otherwise evade capture. The money and the purse Garner had taken from the home were found on his body.
These facts form the basis of Tennessee v. Garner, a 1985 Supreme Court decision which sets constitutional limits that South Carolina police officer Michael Slager should have followed during his deadly encounter with a fleeing suspect named Walter Scott last Saturday. Slager is currently facing murder charges for the killing of Mr. Scott.
Garner involved a Tennessee law that was extraordinarily permissive of police shootings — it provided 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.” The Supreme Court held that this was far too low a bar for the use of deadly force. Instead, the justices explained, “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.”
“Where the suspect poses no immediate threat to the officer and no threat to others,” Justice Byron White explained in his opinion for the Court, “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.”
The facts of the Scott shooting are, admittedly, more muddled than those in Garner, though we do know that it began with an offense far more minor than stealing ten dollars and a purse. According to police reports, Officer Slager initially pulled Scott over for a broken taillight. Scott then fled the scene — his family’s lawyer claims that he did so because owed child support and feared being jailed if this was discovered — and Slager pursued. Eventually, Slager fired his Taser at Scott, but this did not succeed in stopping him.
What happened next is unclear. Shortly after the shooting, Slager radioed “shots fired and the subject is down. He took my Taser.” Video of the shooting, however, does not confirm that Scott had taken a weapon from the officer. Rather, it shows the end of some sort of close-range encounter between Slager and Scott. An object, which may or may not be the Taser, falls behind Slager and Scott turns his back to the officer and runs away. Slager fires eight shots before Scott collapses halfway across a field.
Slager then handcuffs the fallen Scott shortly before another officer arrives on the scene. At one point, Slager drops an unidentified object near Scott’s body.
Under Garner, deadly force may be permissible 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.” So if Scott had actually taken Slager’s Taser and threatened him with it, that might justify the use of deadly force. Even if Scott did threaten Slager with the Taser, however, it is not entirely clear that Slager had the constitutional authority to wield the stun gun in the first place.
That is because a 1989 decision, Graham v. Connor, lays out three factors that police should consider before using force against a suspect: “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Though there are some cases in the federal appeals court which governs South Carolina indicating that a Taser may sometimes be used against fleeing suspects, two of the Graham factors cut strongly against the use of force. Scott was initially stopped only for having a broken taillight, and it’s not at all clear how Scott posed a threat to anyone before the officer decided to escalate the encounter.
It should be noted that both Garner and Graham concern the minimum standards police must comply with under the Constitution. The state of South Carolina remains free to hold its police to a higher standard than this minimum. Slager’s murder trial is likely to focus on whether the officer’s actions violate state law, rather than focusing narrowly on constitutional minimums.
However, The State released a study that found of 209 times South Carolina officers fired a weapon in the last five years, only a handful had been accused of illegally shooting at suspects and zero had been convicted.