Use of Deadly Force to Prevent Escape 

                            By  
                     John C. Hall, J.D. 

A recent article published in the FBI Law Enforcement Bulletin 
focused on police use of deadly force in the immediate defense of 
life.1 That article discussed cases and concepts relating to the 
authority of police officers to use deadly force when there is 
reason to believe that such force is necessary to counter 
immediate lethal threats posed by criminal suspects. 

In contrast, this article discusses the use of deadly force by 
police in a context that is less universally accepted or 
understood-the use of deadly force to "seize" or prevent the 
escape of criminal suspects. While the use of force in both 
contexts must be "objectively reasonable" under the fourth 
amendment to the U.S. Constitution,2 there are distinctive issues 
raised by each that require separate analysis. 

Consider, for example, a scenario in which an officer is 
confronted by a suspect who, armed with a handgun, fires several 
shots at the officer. The officer would be objectively reasonable 
in perceiving that the "immediate" threat to his life was 
sufficient to justify the use of deadly force in self-     
defense. 

But, consider further that after firing the shots at the officer, 
the suspect turns and runs away. Can it still be said that an 
"immediate" threat to the officer exists when the suspect is 
simply trying to get away?  And, if there is no "immediate" 
threat to the officer or to anyone else, is deadly force still a 
lawful option to prevent the suspect's escape? This article will 
assist in resolving these questions. 

Constitutional Authority and Limitations 

The constitutional authority to use deadly force to prevent 
escape from arrest was defined by the U.S. Supreme Court in 
Tennessee v. Garner3 in 1985. In reviewing the constitutionality 
of a State statute permitting the use of deadly force to prevent 
the escape of all felony suspects, the Court reasoned that if a 
criminal 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."4 

On the other hand, the Court held that deadly force may be used 
when "necessary to prevent 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."5 
(emphasis added). 

The Court explained the standard as follows: 

"...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 feasible, some warning has been given."6 
(emphasis added)  

The Garner decision explicitly recognizes constitutional 
authority for the use of deadly force to prevent escape and 
provides a two-prong test to guide the exercise of that authority. 
First, an officer must have probable cause to believe 
that the fleeing suspect is dangerous, and second, the use of 
deadly force must be necessary to effect the seizure.  

The First Prong: A "Dangerous" Suspect 

In the Garner decision, the Supreme Court rejected the notion    
that the legal terms traditionally used to classify crimes, e.g., 
felony and misdemeanor, provide an adequate basis for determining 
the reasonableness of using deadly force to effect the arrest of 
a suspect. The Court observed, for example, that while burglary 
is a felony in every State, "the fact that an unarmed suspect has 
broken into a dwelling at night does not automatically mean he is 
physically dangerous."7 The Court reasoned that burglary, 
standing alone, is commonly characterized by law enforcement 
agencies as a property crime. 

The Court shifted the focus of the inquiry to the nature of the 
suspect's actions-i.e., whether there is probable cause to 
believe that the suspect's actions involved the infliction or 
threatened infliction of serious physical harm. It is noteworthy 
that a threatened infliction of physical harm is sufficient to 
satisfy this criterion and that probable cause, rather than 
certainty, is the requisite level of proof. 

Both points are illustrated in Ford v. Childers.8 An officer saw 
a masked person standing in a bank with his arm extended toward 
several people who had their arms raised above their heads. 
Because of an obstruction, the officer was unable to see what the 
masked man was holding in his hand but assumed it was a gun. 

Shortly thereafter, the officer saw the same person fleeing the 
bank with a bag in his hand. When the fleeing suspect twice 
failed to comply with commands to stop, the officer and his 
partner each fired shots at him. He continued to flee, ran down 
another street, and was captured shortly thereafter-apparently 
unarmed at the time of his arrest, and suffering from a gunshot 
wound in the back. He recovered from his wound sufficiently to 
become a convicted prisoner and a plaintiff. 

Following presentation of the plaintiff's case at trial, the 
district court directed a verdict for the defendant officers. On 
appeal, the appellate court held: 

"The uncontroverted evidence establishes that [the officer], 
after warning [the plaintiff] on two separate occasions, fired at 
[the plaintiff] because he reasonably believed that the suspect 
had committed a felony involving the threat of deadly force, was 
armed with a deadly weapon, and was likely to pose a danger of 
serious harm to others if not immediately apprehended...Even 
though [the officer] did not actually see a weapon in the 
suspect's hand...[he] reasonably concluded that the suspect was 
armed and dangerous."9 

Although this language could be read as suggesting that a suspect 
must be viewed as armed in order to be viewed as dangerous, there 
is nothing in the Garner decision to support that view. Indeed, 
the Garner decision appears to recognize a presumption that one 
who has committed a crime involving infliction or threatened 
infliction of serious physical harm poses a continuing threat and 
that no further proof is needed to establish a reasonable belief 
that the suspect is dangerous.   

The Second Prong: "Necessity" to Use Deadly Force 

If, as suggested above, there is a presumption that "dangerous" 
suspects will continue to be dangerous, courts also appear to 
presume that their capture is "necessary." This is an important 
consideration, because it limits the issue of "necessity" to the 
consideration of how, as opposed to whether, a dangerous suspect 
will be seized. 

In Garner, the Court held that whenever feasible, a suspect 
should be given a verbal warning and an opportunity to surrender 
before deadly force is used.10 If verbal warnings are not 
feasible, or if the fleeing suspect ignores them, the officer 
must then consider other available options. In doing so, it is 
not necessary that all possible options be considered, only those 
that offer a reasonably safe means of seizing the suspect. 

The constitutionality of an officer's action does not turn on 
whether the officer chooses the least intrusive alternative; 
rather, it turns on whether the alternative chosen is 
"objectively reasonable."11 It can undoubtedly be said that in 
virtually every case, there are less intrusive alternatives to 
the use of deadly force to prevent escape of a dangerous person. 
But they are not reasonable alternatives if they significantly 
increase the danger to the officers or to the public. Consider, 
for example, two often-suggested options-chasing or permitting 
the escape of dangerous suspects. 

It is a common misconception that chasing a fleeing "dangerous" 
suspect is usually a reasonable option to using deadly force. In 
fact, foot pursuits of dangerous suspects are seldom "safe" 
alternatives for an officer. When weighing that alternative, 
several factors should be considered. 

First, if the suspect is believed to possess a firearm, serious 
thought must be given to the vulnerability of a pursuing officer 
to a sudden, unexpected attack. The officer is placed in the 
distinctly disadvantageous position of having to react to a 
threatening action that is already underway. This threat is even 
more pronounced if the suspect has managed to reach cover from 
which to fire. 

A second consideration is the threat of ambush, particularly when 
an officer is unable to keep the fleeing suspect in sight. Annual 
statistics disclose the number of officers killed as the result 
of ambush, frequently occurring during foot pursuits of fleeing 
suspects.12 

Third, even in cases where a suspect is not believed to be armed 
with a deadly weapon, the potential threat of the suspect's 
gaining access to the officer's weapon cannot be discounted. 
Although officers are generally trained in defensive tactics and 
weapon retention, even well-trained officers can lose control of 
their firearms in the course of a physical struggle. 

A resisting suspect intent on seizing an officer's sidearm has a 
simpler task than does the officer, who faces the broader 
challenge of overcoming resistance while re-taining the firearm. 
The number of officers killed each year with their own service 
weapons continues to highlight the gravity of the problem.13 

If pursuing a fleeing, dangerous suspect is a high-risk option 
for police officers, the second most tempting option, i.e., 
permitting the suspect to escape, shifts the risks to the public. 
A dangerous suspect who evades capture today may very well be 
located and safely apprehended another day without further harm. 
Or, the suspect may, as one court put it, "continue his deadly 
doings."14  The risks may be speculative, but they exist 
nonetheless, and should not simply be discounted. 

Cases Applying the Garner Principles 

In Krueger v. Fuhr,15 an officer received a radio report of an 
assault that had just occurred, along with a description of the 
suspect and the fact that the suspect was armed with a knife. 
Among other reports received was one that stated the suspect was 
believed to be on drugs and "very high" and that he "had some 
type of knife" on him. 

Responding to these reports, the officer drove to the area and 
saw a person matching the description of the suspect lying on his 
stomach between two parked cars. The officer got out of his 
police car, drew his revolver, identified himself as a police 
officer, and ordered the suspect to freeze. When the suspect 
suddenly jumped to his feet and began running away, the officer 
chased him on foot for about 70 yards, repeatedly calling for the 
suspect to stop. The officer stated that when he closed to within 
3 to 4 yards of the suspect, he saw the suspect reach to the area 
of his right hip and "heard the sound of an object being pulled" 
from the waistband area. The officer then saw that the suspect 
had pulled a knife and was gripping it in his fist. 

Believing that the suspect was going to turn and attack him with 
the knife, the officer fired four rounds, striking the suspect 
twice in the back and once in the base of the skull. Subsequent 
investigation by the police disclosed a knife approximately 43 
feet from the suspect's body. 

The parents of the deceased suspect filed a suit against the 
officer and his department pursuant to 42 U.S.C. sec. 1983, 
alleging violations of their son's 4th and 14th amendment rights. 
The defendants filed motions for summary judgment, which were 
denied by the trial court. Upon reconsideration, the court 
entered summary judgment for the department but again denied 
summary judgment for the officer. 

Applying the Garner standard to the facts, the appellate court 
concluded that "it was objectively reasonable for [the officer] 
to believe that the individual he was chasing had committed a 
crime involving the infliction or threatened infliction of 
serious physical harm,"16 i.e., assault. That reasonable belief, 
standing alone, satisfies the first prong of the Garner test--the 
assessment of a suspect's dangerousness. 

Although the officer "also knew that the suspect probably had a 
knife and was inebriated," and those factors are undoubtedly 
relevant to a reasonable officer's concern for safety, they are 
not essential to establish a reasonable belief that the suspect 
is dangerous. For this particular case, they are perhaps more 
relevant to the second prong of the Garner test, i.e., whether 
deadly force was necessary. In that regard, the court concluded 
that the officer's "use of deadly force was necessary to prevent 
escape in accordance with the standards enunciated in Garner."17    

The point is particularly instructive considering that the 
pursuing officer came within 3 to 4 yards of the fleeing suspect 
and could have conceiveably closed that distance. However, the 
officer's reasonable belief that the suspect was armed with a 
knife made that alternative unacceptably risky.  

Another noteworthy point in the Krueger decision is the court's 
response to plaintiffs' contention that the suspect had been shot 
in the back and the suggestion that "a wound in the back raises 
serious issues of material fact regarding the use of excessive 
force." The court responded: 

"In the instant case, there is no evidence that requires us to 
attribute special significance to the fact that [the officer]      
shot [the suspect] in the back....it is not remarkable that an 
escaping felony suspect would be shot in the back."18  

A second case in which the court clearly focused on the "escape" 
issue is Smith v. Freeland.19 An officer attempted to stop an 
automobile after observing traffic violations. A high-speed chase 
ensued, during which the suspect apparently tried to ram the 
police car and to evade the efforts of other officers to stop 
him. Finally, the suspect vehicle turned down a dead-end street, 
turned around, and came to a stop facing the pursuing police car. 

As the officer got out of his car to approach the suspect, the 
suspect accelerated forward into the police car, then backed up 
and swerved around it to escape onto the main street. As the 
suspect sped past him, the officer fired one shot from his 
service weapon, which entered the passenger window, passed 
through the seat, and fatally wounded the suspect in the right 
side. 

In the resulting lawsuit against the officer, the chief of 
police, and the department, the U.S. district court granted 
summary for the defendants, noting that the officer's actions 
were reasonable under the fourth amendment, even though the 
officer "was not in any immediate personal danger at the time he   
discharged his weapon...." The district court's conclusion is 
interesting in that the officer had originally attempted to 
justify the use of deadly force by claiming that he acted in 
self-defense. 

The court's decision illustrates that such a claim is not 
necessary. The appellate court affirmed this judgment: 

"In an instant [the officer] had to decide whether to allow     
his suspect to escape. He decided to stop him, and no rational 
jury could say he acted unreasonably."20 

The common element in these cases is the apparent presumption 
that the escape of a dangerous suspect poses a continuing threat 
to the public and that a suspect's actions in attempting to 
escape support a reasonable belief that those efforts will 
continue. Thus, in Freland, the court noted: 

"Even if there were a roadblock...[the officer] could reasonably 
believe that [the suspect] could escape the roadblock, as he had 
escaped several times previously... rather than confronting the 
roadblock, he could have stopped his car and entered one of the 
neighboring houses, hoping to take hostages. [He] had proven he 
would do almost anything to avoid capture; [the officer] could 
certainly assume he would not stop at threatening others."21   

In neither Krueger nor Freland did the court require the officers 
to calculate the "probability" of future danger if the suspects 
were permitted to escape. This approach is not only consistent 
with the language of Garner but it is also realistic. Officers 
confronted with the need to make "split-second judgments-in 
circum- stances that are tense, uncertain and 
rapidly-evolving..."22 are hardly in a position to compute the 
statistical odds that a dangerous suspect will continue to do 
harm. Fortunately, the law does not require them to do so. 

Conclusion 

The use of deadly force by law enforcement officers under any 
circumstances is fraught with consequences. This is particularly 
true when deadly force is used for the sole purpose of preventing 
the escape of a criminal suspect.  

The Supreme Court in Tennessee v. Garner observed that the use of 
deadly force not only impinges an individual's interests in his 
own life but it also "frustrates the interest of the individual, 
and of society, in judicial determination of guilt and 
punishment."23 Accordingly, the Court concluded that it is not 
necessarily better that all felony suspects be shot than that 
they escape. At the same time, however, the Court struck the 
balance between the competing interests of the individual and 
society by holding that deadly force is constitutionally 
permissible, when necessary, to prevent escape of "dangerous" 
suspects, i.e., when there is probable cause to believe that the 
suspect committed a crime involving infliction or threatened 
infliction of serious physical harm. 

The balance is undoubtedly a delicate one. The Constitution does 
not impose an affirmative duty on the police to use deadly force 
to prevent escape of dangerous suspects. Accordingly, officers, 
as a matter of discretion, and departments, as a matter of 
policy, are free to be more restrictive than the Federal 
constitutional standard. Indeed, there may be legitimate 
practical or policy reasons for doing so. However, when 
considering that choice, the need to maintain the balance of 
interests should not be forgotten. 

Endnotes 

1 See, Hall, "Deadly Force in Defense of Life," FBI Law 
Enforcement Bulletin, August, 1993, 27-32. 
2 In Graham v. Connor, 490 U.S. 386, 395 (1989), the Supreme 
Court held that "...all claims that law enforcement officers have 
used excessive force-deadly or not-in the course of an arrest, 
investigatory stop, or other 'seizure' of a free citizen should 
be analyzed under the Fourth Amendment and its reasonableness 
standard...." 
3 471 U.S. 1 (1985). 
4 Id. at. 9-10. 
5 Id. at 4. 
6 Id. at 10. 
7 Id. at 16. 
8 855 F. 2d 1271 (7th Cir. 1988). 
9 Id. at 1275. Rather than suggesting that a suspect must be 
"armed" to be dangerous, it is more likely that the court in Ford viewed the issue as relevant to the officer's belief that the 
crime involved a threatened infliction of serious physical harm.  
10 Garner, supra, at 10. 
11 See, Illinois v. Lafayette, 462 U.S. 640, 647 (1983): "The 
reasonableness of any particular governmental activity does not 
necessarily or invariably turn on the existence of alternative 
'less intrusive' means." 
12 Uniform Crime Reports, Federal Bureau of Investigation, Law 
Enforcement Officers Killed And Assaulted, 1990. Of the 762 
officers slain during the period 1981-1990, 72 officers were 
killed in ambush. 
13 Id. Of the 56 officers slain with firearms in 1990, 3 were 
shot with their own firearms; of the 57 officers shot to death in 
1989, 10 were slain with their own weapons. 
14 Daniels v. Terrell, 783 F. Supp. 1211, 1213 (E.D.Mo.1992). 
15 991 F. 2d 435 (8th Cir. 1993). 
16 Id. at 439. 
17 Id. at 440. 
18 Id. at 439-440. The court distinguished this case from Samples 
on Behalf of Samples v. City of Atlanta, 846 F. 2d 1328 (11th 
Cir. 1988), wherein a police officer stated that he shot the 
suspect who was advancing on him with a knife, and the court 
suggested that under those circumstances, a shot to the suspect's 
back could suggest a contradictory explanation. In Krueger, the 
officer's statement of facts was consistant with the wounds 
inflicted on the suspect. 
19 954 F. 2d 343 (6th Cir. 1992). 
20 Id. at 347. 
21 Id. See also, Daniels v. Terrell, 783 F. Supp. 1211 (E.D.Mo. 
1992). 
22 Graham v. Connor, 490 U.S. 386, 397 (1989). 
23 471 U.S. 1, 8 (1985).