Dec 042005

If a police officer doesn’t know why a suspect is fleeing, it’s reasonable for the officer to shoot the suspect to death and ask questions later.

As you pause to consider the absurdity of that proposition, ask yourself why a government lawyer would consider it reasonable for an officer to shoot and kill an unarmed teenager who had just stolen $10 in a burglary. And then ask whether a lawyer who expressed that belief should serve on the Supreme Court.

As an assistant to the Solicitor General, Judge Alito weighed in on a case involving an officer who was investigating a possible burglary. The officer heard a door slam, then went to the backyard where he “shined his flashlight on a youth who appeared to be unarmed and who was trying to climb a six-foot-high chain link fence to escape.” The officer “seized” the kid by shooting him in the head.

The victim’s parents sued the Tennessee officer for violating their son’s constitutional rights. Alito reviewed the case when it reached the Supreme Court to decide whether the federal government should file an amicus brief in support of Tennessee’s position that it is always permissible to use deadly force to stop a felony suspect from fleeing.

The Fourth Amendment requires seizures to be reasonable, and Alito opined that the officer’s decision to seize the unarmed minor by putting a bullet through his head was reasonable. The instant application of the death penalty for a property crime, without the bother of a trial, didn’t appear to concern Alito.

"I think the shooting [in this case] can be justified as reasonable," Alito wrote in a 1984 memo to Justice Department officials. Because the officer could not know for sure why a suspect was fleeing, the courts should not set a rule forbidding the use of deadly force, he said. "I do not think the Constitution provides an answer to the officer’s dilemma," Alito advised.

Alito advised against federal participation in the appeal because federal law enforcement agencies, unlike Tennessee, already had policies prohibiting the use of deadly force against fleeing suspects who are not known to be dangerous. Alito was concerned that the federal policies might undermine Tennessee’s argument. If the feds are capable of understanding that deadly force is unreasonable when the danger to others is speculative, the Court might wonder why Tennessee law enforcement agencies shouldn’t follow the same standard. Better, Alito thought, for the federal government to stay out of it, to avoid explaining the apparent inconsistency.

The Court used the case to announce a rule of constitutional law that has been uncontroversial, perhaps because it is so obvious:

"It is not better that all felony suspects die than that they escape," wrote Justice Byron White for a 6-3 majority in Tennessee vs. Garner. "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."

That Alito would have licensed the police to shoot unarmed teenagers is another reason to conclude that his views are too far outside the mainstream to permit confirmation of his Supreme Court nomination.

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