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Tennessee v. Garner and Missouri’s Use of Force Statute

August 23, 2014 Education, Featured, Laws, Open Forum, Politics, Self-Defense 1 Comment
Case Law Books

by Eric Vought

A grand jury is currently convening in the matter of the Mike Brown shooting in Ferguson and whether the shooting was a justified use of force by Darren Wilson. This post will detail some of the issues of law in Missouri in determining that question and perhaps lead to a debate of what the laws *should be*.

Use of deadly force in Missouri is detailed in Chapter 563. All citizens of Missouri, and especially any who own or carry firearms should read and understand this chapter. RsMo 563.046 “Law Enforcement use of force in making an arrest” item 3 details permissible use of force by law enforcement. Again, the entire item is important, but in brief, a peace officer may use deadly force to effect an arrest or stop a fleeing suspect if the suspect:

(a) Has committed or attempted to commit a felony; or

(b) Is attempting to escape by use of a deadly weapon; or

(c) May otherwise endanger life or inflict serious physical injury unless arrested without delay

Because robbery is a felony as is assaulting a police officer, item (a) is implicated in the Mike Brown case and would, by current law, justify Darren Wilson’s use of force even if the shooting was not in self-defense and even if Mike Brown was fleeing. It would seem that it would be impossible to indict and convict for such an act in Missouri.

But, not so fast: RsMo 563.046 conflicts with the United States Supreme Court case Tennessee v. Garner. In Garner (do not mistake it for Garner v. Texas in a Google search, you will get unexpected results), a teenager was shot in the back by a police officer while climbing a fence to flee a petty burglary. The officer knew that the teen was unarmed because he could clearly see both of the suspect’s hands. The case eventually made it to the Supreme Court, and the court ruled that shooting an unarmed fleeing suspect without an apparent danger to public safety was an Unconstitutional seizure under the 4th Amendment (indeed, taking someone’s life is the most drastic ‘seizure’ that the State can make). The court further ruled that if the fleeing suspect presented a public danger by escaping, the use of deadly force was not Constitutionally unreasonable. Basically, the USSC reduced the permissible justifications quoted above to just (c).

If we agree that RsMo 563.046 is incompatible with the Garner decision, we need to fix it. This will require a legislative change in the next session. The next Missouri legislative session begins 1 January with pre-file of bills starting 1 December 2014. What should this statute look like? It is time to start determining that now so that a bill can be written.

Image courtesy of Keith Robinson.

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  • Arguably, and as someone pointed out elsewhere, item (b) “Is attempting to escape by use of a deadly weapon;” is also implicitly included by Garner but redundant because a felon/suspected felon using a deadly weapon to escape is always going to be considered a “danger to life or serious injury” under Missouri law. So, really, the USSC is just excluding (a) “Has committed or attempted to commit a felony;” from being permissible justification for use of deadly force *absent other circumstances*. Whether or not we would want to leave (b) in a revised statute as a redundant clarifying item would be open to debate and I, personally, have no preference.

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