Police Use of Deadly Force: State Statutes 30 Years after Garner

53 Pages Posted: 2 Feb 2016 Last revised: 12 Jul 2016

See all articles by Chad Flanders

Chad Flanders

Saint Louis University - School of Law

Joseph Welling

Saint Louis University, School of Law, Students

Date Written: February 1, 2016


The recent rash of police shootings has raised troubling questions about when, if ever, police are justified in using deadly force against a suspect. Some police shootings may simply represent wanton violence. But others may present close cases. How do we decide when a police officer can not only use force, but shoot at a suspect — even shoot to kill? When is a police killing a justifiable homicide, and when is it just a homicide? One place to start in drawing the line between justified and unjustified uses of deadly force is the Supreme Court’s 1985 opinion in Tennessee v. Garner. Reading the majority opinion in Garner is a bracing experience. Justice White’s extended discussion of the common law standard of police use of force makes clear on many levels that he did not merely want to replace the common law rule: he wanted to bury it. That police could use any amount of force, including deadly force, to “seize” a fleeing felon — the common law rule which at issue in Garner — was not only constitutionally infirm, it made little sense as a policy matter.

As powerful as the Garner decision was, it also was an importantly limited one. Garner was a case involving a suit under Section 1983, the federal civil rights statute. In deciding such a suit, the Court has to announce what the constitutional rule is — and so in Garner’s lawsuit, the Court had to say what amount of force counted as “reasonable” under the Fourth Amendment. But deciding the constitutional standard for Garner’s civil rights suit didn’t disturb what the standard had to be for state criminal law prosecutions. States still have the authority to dictate under what circumstances police could justifiably use deadly force, and so avoid punishment under state law.

Many states did change their laws after Garner, so compelling was Garner’s reasoning. This essay updates the count of states who still hang on to the common law rule in their statutes, thirty years after Garner and by the same token, records the number of states who have changed their laws. The structure of our essay is as follows: after a recapitulation of Garner — including a discussion of the ambiguity of what is ultimately its holding (Part I) — we turn to our updated count of states that still retain the common law rule (Part II). Part III explains why, contrary to the belief of many, the decision in Garner did not require states to abandon the common law rule. Part IV looks at the most recent legislative efforts to reform the use of police force statute in Missouri.

Keywords: police, deadly force, Tennessee v. Garner, defenses

Suggested Citation

Flanders, Chad and Welling, Joseph, Police Use of Deadly Force: State Statutes 30 Years after Garner (February 1, 2016). St. Louis University Public Law Review, Forthcoming, Saint Louis U. Legal Studies Research Paper No. 2016-1, Available at SSRN: https://ssrn.com/abstract=2725926

Chad Flanders (Contact Author)

Saint Louis University - School of Law ( email )

100 N. Tucker Blvd.
St. Louis, MO 63101
United States

Joseph Welling

Saint Louis University, School of Law, Students ( email )

100 N. Tucker Blvd.
St. Louis, MO 63108
United States

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