Fifteen-year-old Edward Garner was killed by Memphis Police Department Officer Elton Hymon when Garner fled the scene of a suspected burglary. His father, Cleamtree Garner, sued the Department under U.S.C.A. § 1983 for violating his son’s Fourth Amendment right against unreasonable seizures. The U.S. District Court ruled that the shooting was not an unreasonable seizure. The U.S. Court of Appeals reversed. The U.S. Supreme Court affirmed.

WHITE, J., joined by BRENNAN, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ.

FACTS

At about 10:45 P.M. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a “prowler inside call.” Upon arriving at the scene they saw a woman standing on her porch gesturing toward the adjacent house. She told them she had heard glass breaking and that “they” or “someone” was breaking in next door. While Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house. He heard a door slam and saw someone run across the backyard.

The fleeing suspect, Edward Garner, stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner’s face and hands. He saw no sign of a weapon, and though not certain, was “reasonably sure” and “figured” that Garner was unarmed. He thought Garner was 17 or 18 years old and about 5’5” or 5’7” tall. While Garner was crouched at the base of the fence, Hymon called out “ police, halt” and took a few steps toward him.

Garner began to climb over the fence. Convinced that if Garner made it over the fence he would elude capture, Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his body.

In using deadly force to prevent escape, Hymon was acting under the authority of a Tennessee statute, and pursuant to Police Department policy. The statute provides that “if, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.” Tenn. Code Ann. § 40–7-108 (1982). The Department policy was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary. The incident was reviewed by the Memphis Police Firearm’s Review Board and presented to a grand jury. Neither took any action.

Cleamtree Garner, Edward’s father, then brought this action in the Federal District Court for the Western District of Tennessee, seeking damages under 42 U.S.C. § 1983 for asserted violations of Garner’s constitutional rights. The complaint alleged that the shooting violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. It named as defendants Officer Hymon, the Police Department, its Director, and the Mayor and City of Memphis.

After a 3-day bench trial, the District Court entered judgment for all defendants. It dismissed the claims against the Mayor and the Director for lack of evidence. It then concluded that Hymon’s actions were authorized by the Tennessee statute. Hymon had employed the only reasonable and practicable means of preventing Garner’s escape. Garner had “recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon.” The District Court found that the statute, and Hymon’s actions, were constitutional. The Court of Appeals reversed and remanded.

OPINION

Whenever an officer restrains the freedom of a person to walk away, he has seized that person. 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. A police officer may arrest a person if he has probable cause to believe that person committed a crime. Tennessee and the City of Memphis argue that if this requirement is satisfied the Fourth Amendment has nothing to say about how that seizure is made. The submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of the manner in which a search or seizure is conducted.

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. [Emphasis added] 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. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

Officer Hymon could not reasonably have believed that Garner—young, slight, and unarmed—posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent escape. The fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or to others.

AFFIRMED.

DISSENT

O’CONNOR, J., joined by BURGER, C.J., and REHNQUIST, J.

The public interest involved in the use of deadly force as a last resort to apprehend a fleeing burglary suspect relates primarily to the serious nature of the crime. Household burglaries represent not only the illegal entry into a person’s home, but also “pose a real risk of serious harm to others.” According to recent Department of Justice statistics, “Three-fifths of all rapes in the home, three-fifths of all home robberies, and about a third of home aggravated and simple assaults are committed by burglars.”

Against the strong public interests justifying the conduct at issue here must be weighed the individual interests implicated in the use of deadly force by police officers. The majority declares that “the suspect’s fundamental interest in his own life need not be elaborated upon.” This blithe assertion hardly provides an adequate substitute for the majority’s failure to acknowledge the distinctive manner in which the suspect’s interest in his life is even exposed to risk. For purposes of this case, we must recall that the police officer, in the course of investigating a nighttime burglary, had reasonable cause to arrest the suspect and ordered him to halt. The officer’s use of force resulted because the suspected burglar refused to heed this command and the officer reasonably believed that there was no means short of firing his weapon to apprehend the suspect.

The policeman’s hands should not be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement personnel.

Professor Uviller asks the following questions: Would the rule in this case permit an officer to shoot a drunk driver swerving erratically down the road headed toward a town? A person wanted for a series of violent crimes but not presently armed who flees from the police? How would you answer Professor Uviller’s questions? Defend your answers.