Alito's blank check for cops.

The law, lawyers, and the court.
Dec. 2 2005 6:06 PM

Shoot To Kill

Alito's blank check for cops.

Favors deadly force even when cops don't
Click image to expand.
Favors deadly force even when cops don't

Late on an October night in 1974, Memphis, Tenn., police officer Elton Hymon responded to a call about a break in. At the scene, a neighbor said she'd heard glass shattering and pointed to the house next door. Hymon went behind it. He heard a door slam. Someone ran into the yard and stopped at a 6-foot-high chain-link fence at the yard's edge. Hymon shined his flashlight at the person and saw a teenager who he could tell was unarmed. Hymon called, "Police, halt." The teen started climbing the fence. Hymon shot him in the back of the head, fatally. Edward Garner was a 15-year-old black eighth grader. He was 5 feet 4 inches tall and weighed about 110 pounds. A purse and $10 were found on his body.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

After Edward Garner's death, his father sued, arguing that his son's civil rights had been violated. The 6th Circuit, one of the federal courts of appeal, agreed, ruling that Garner's shooting violated the Fourth Amendment's protection against unreasonable seizures. In the process, the court struck down a Tennessee statute based on an 18th-century common-law "fleeing felon" rule, which allowed police to use deadly force against a felony suspect who was trying to elude arrest. In the Garner case, the 6th Circuit said that before shooting a suspect, a police offer must have probable cause to believe that the suspect poses a danger.

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In 1984, the Memphis Police Department and the state of Tennessee appealed the 6th Circuit's decision to the Supreme Court. Samuel Alito, then a lawyer in the Solicitor General's office, was assigned to help decide whether the Reagan administration should take sides. "I believe that the decision below is wrong," Alito wrote in a cover note, referring to the 6th Circuit's ruling. In a 15-page memo, he argued in favor of letting states give police the power to shoot to kill at their discretion whenever a suspect flees, whether or not he poses a threat. Alito's memo is written with his usual dispassion. But he's forceful in his belief that the Constitution has no role to play in a cop's decision about whether to shoot an unarmed suspect. Alito's memo is also striking for what it doesn't say. In Memphis and across the country, cops were shooting black suspects at a far higher rate than white ones. (The evidence, beginning with studies dating from the 1960s, is collected in a 2004 article in The Annals of the American Academy of Political and Social Science by Northwestern political science professor Wesley G. Skogan and University of Chicago law professor Tracey L. Meares.) Laws like Tennessee's made it easier for the police to shoot unarmed black people, as Edward Garner's father argued in his suit. Alito, however, ignored the racial undertones of the case.

"Was the shooting reasonable?" Alito asked. His answer was yes. "Many of the facts recited by the court of appeals"—like Garner's youth and minor crime—"seem essentially irrelevant." To Alito, the case came down to this: If Officer Hymon shot, "there was the chance that he would kill a person guilty only of a simple breaking and entering; that is essentially what occurred. If he didn't shoot, there was a chance that a murderer or rapist would escape and possibly strike again." Hymon had no reason to think that Garner had done anything violent. Still, Alito concluded, "I do not think the Constitution provides an answer to the officer's dilemma." The Department of Justice ultimately decided not to take sides in the Garner case. But when the Supreme Court eventually ruled, it rejected the arguments Alito made in his memo.

By a vote of 6 to 3, the court ruled in favor of Edward Garner's father. "It is not better that all felony suspects die than that they escape," Justice Byron White wrote for the majority. Alito had argued that the court shouldn't set a constitutional standard for police shootings of fleeing suspects, questioning whether the shooting of Garner counted as a "seizure" as defined by the Fourth Amendment. White dismissed both ideas. "Whenever an officer restrains the freedom of a person to walk away, he has seized that person," White wrote. "There can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." In fact, none of the justices adopted Alito's position. Even the dissent in the case, by Justice Sandra Day O'Connor, accepts White's premise that this was a constitutional question for the court to address.

In striking down Tennessee's fleeing-felon rule, White cautioned that the court would not interfere with a long-standing police practice if to do so "would severely hamper law enforcement." Alito said that this would happen. If suspects could force the police to choose between letting them go and killing them, he argued, then "societal order would quickly break down." But police departments themselves disagreed with Alito. They had scrapped shoot-to-kill policies on their own. Only 7.5 percent of the country's police departments and cities explicitly allowed the use of deadly force against any fleeing felon in 1984; 86.8 percent explicitly did not, according to White's opinion.

Alito wrote his memo 20 years ago, as a government lawyer. The Bush administration has argued repeatedly that the views expressed in similar memos written by Alito (and Chief Justice John Roberts) weren't necessarily their own—and say nothing about the kind of decisions they would make on the court today. But Alito was explicitly trying to persuade the administration to adopt his position. Justice Department lawyers were divided over the case. Alito was expressing his own point of view. His memo is full of the expressions—"I think," "I believe"—that lawyers (and everyone else) use to do that.

What should matter more to the senators who will soon decide whether Alito will sit on the Supreme Court is that his record as an appeals court judge shows that his views have not changed since Garner. In case after case, Alito has taken the side of police and prosecutors. Can the police stop—and hold at gunpoint—members of a family who happened to be standing on the doorstep of an apartment that the cops had come to raid? Can the police frisk a 10-year-old girl who is nowhere mentioned in their warrant? Yes and yes. In one opinion after the next, Alito looks at search-and-seizure cases like a former prosecutor, which he is.

Does it matter that in many of these cases, the people getting the back of the hand from the cops are poor and black? Garner's father argued that the Memphis Police Department's policy toward fleeing felons violated the Fourteenth Amendment's guarantee of equal protection. Between 1969 and 1976, the Memphis police shot and killed eight white suspects and 16 black ones. Only one of the white suspects was neither armed nor assaulting a police officer. Thirteen of the black suspects were. The statistics were part of the evidence presented by Garner's father. Alito may well not have read that brief. And if he had, it probably wouldn't have mattered. His concern isn't the world of Edward Garner.

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