Tennessee v. Garner and the Democratic Practice of Judicial Review


In Tennessee v. Garner, the Supreme Court considered the constitutionality of the former Tennessee statute that codified the common law fleeing felon doctrine. Under that doctrine, the police were permitted to use deadly force when necessary to prevent the escape of a fleeing suspect who the officer reasonably believed had committed a felony. Although the doctrine did not permit the use of deadly force to prevent the escape of suspected misdemeanants, it recognized no distinctions between suspected felons who were violent and dangerous and those who were not. The historical roots of the doctrine lay deep in the common law, going back to the tenth century and concepts of forfeiture and summary punishment that were inherent in the traditional notion of felony.

Garner involved the shooting death of a fifteen-year-old fleeing burglary suspect who had entered a house when no one was home and stolen a coin purse containing ten dollars. The officer shot Garner to prevent his escape despite the fact that the officer had concluded that Garner was unarmed. The Court held that the shooting violated the fourth amendment. It upheld the constitutionality of the Tennessee statute only as applied to situations in which”the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others…” It arrived at this standard by applying the balancing test developed in Terry v. Ohio and its progeny, “balancing the extent of the intrusion against the need for it, [and] examin[ing] the reasonableness of the manner in which a search or seizure is conducted.” That analysis yielded the relatively obvious conclusion that: “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.

At the time of the Garner decision, almost half the states ostensibly still followed the common law rule. Eighteen states did so by statute, four others by case law. In two states, the courts had narrowly construed existing statutes to authorize deadly force to prevent escape only in cases involving forcible felonies or where necessary to prevent injury. Of the remaining states, two applied standards more restrictive than the common law rule as a matter of case law. The others had statutes that either adopted the limiting principles of the Model Penal Code provision or otherwise specified the felonies justifying the use of deadly force. Three states had no relevant statute or case law and two had unclear positions, but seemed to be more restrictive than the common law.

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