In the Decision: [Decided March 27, 1985 by the United States Supreme Court] Police use of deadly force to prevent the escape of an apparently unarmed suspected felon [held] to violate the Fourth Amendment. Please see, Tennessee v. Garner, 471 US 1, 105, S.Ct. 1694, 85 L Ed.2d 1 (1985).
This case arose from Memphis Tennessee on October 3, 1974. When a Memphis Police Office, Elton Hymon, responding to a dispatch of a "prowler inside call" arrived to the scene to go behind the house where he heard a door slam and saw someone running The officer suspected it was a fleeing "prowler."
The officer then called out "police halt" and proceeded to shoot Edward Eugene Garner in the back of the head as Edward E. Garner attempted to scale over a fence in order to escape capture. (id's at 4, 5, and 17, supra.)
The youth died on the operating table in the hospital at the age of 15. His father sued in a federal court seeking damages under title 42 U.S.C. section 1983 for asserted violations of his son's constitutional rights, (id. at 3, supra). Cleamtee Garner, etc., et al. v. Memphis Police Department, et al. in the United States District Court for the Western District of Tennessee.
The Court dismissed the complaint, ruling that the officer's actions were authorized by a Tennessee statute which allowed the police to use all necessary means to effect an arrest where a supect fled or forcibly resisted after being notified of the intent to arrest and that this statute was Constitional." (id at 1, supra.)
The United Sates Court of Appearls for the Sixth Circuit reversed and remanded, holding that the statute violated the Fourth amendment (710.F2d 240, id at 1, supra0.
The state of Tennessee appealed and so, too did the Memphis Police Deparmtent, et al. (respectively Nos. 83-1035 and 83-1070).
The apepals were writs of certiorari that they petitioned to the United States Supreme Court. Itaffirmed, the United States Court of Apperls for the Sixth Circuit holding:
"The Court held that the Fourth Amendment prohibits the use of deadly force to prevent the escape of a suspected felon unless it is necessary to prevent the escape and the officer had probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Thus, the Tennessee statute was unconstitutional in so far as it authorized the use of deadly force to prevent the escape of an apparently unarmed suspected felon, (id at 1, 2 supra).
The Court took into consideration that the "prevailing rules in individual jurisdictions" (id. at 12, supra). A total of 45 states; codes, statutes, general laws, penal law to name but a few.
Pennsylvania was one of the jurisdictions included.
Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon (eg, Brooks v. Commonwealth, 61 PA 352, 1960, id. at 10, supra). Similar cases were as well taken into account the oldest dating back to 1851.
The Appellants pressed the prevailing rules of most American jurisdictions, supra. In a bid to sway the court that the "before and after" common law rules; as each individual jurisdiction conducted its own law enforcement practices at "the time of the adoption of the fourth amendment and for some time thereafter," (id at 10, supra). They argued that the use of deadly force was indeed reasonable.
However, the Court did not agree with the Appellants argument and instead determined in its analysis "that use of deadly force against a fleeing felon is merely a speedier execution..." (id. at 11, supra). "18 Pa Cons Stat section 508 (1982) "where the person to be arrested poses a threat to human life, (id).
"In California, the police may use deadly force to arrest only if the crime for hwich the arrest is sought was "a forcible and atrocious one which threatens death or serious bodily harm," or there is a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprenhension is delayed," (id at 13, supra emphasis added).
New Years Eve/Day 2009, a transit officer, Johannes Menserle, in Oakland, California is captured on cellphone video cameras shooting an unarmed black man while he was face down on a subway platform; dead; Oscar Grant, 22 years old.
Needless to say, but what ensured was "Black Rage" from the California communities which have cited "the wheels of justice have always turned slowly - if at all - in cases in which cops have used deadly force against unarmed blacks."
"Nothing symbolizes America's long-running era of racial conflict more than these kinds of killings, and the failure of the criminal justice system to do something about them" DeWayene Wickham, USA TODAY - Tuesday 13, 2009, 11A "Post-Racial era? Go tell victims of police shootings." See also William M. Welch, contributing Associated Press, USA TODAY - Friday, January 16, 2009, 3A "Unrest gesters over Bay Area transit killilng / Ex-officer faces charge of murder," also USA TODAY, January 15, 2009, 3A "Across the Nation" "Ex-transit cop charged in video slaying."
Black Rage is a book by Paul Harris. Black Rage Confronts the Law 1997.
So where does all this lead? To our prisoner of course and to the interest of society. This is headline news events taking place in our society of America. The murder or the execution carried out by Johannes Mehserle, 27, present in Nevada with the Douglas County Sheriff's Department; extradited to Alameda County Court and arraigned [sic] on a charge of murder. A first for California so noted by the Alameda County District Attorney.
The attorney for Johannes Mehserle is quoted, "...I fully expect Mr. Mehserle will be clared of the charges against him," (id. at January 16, 2009. 3A) "Unrest festers over Bay area transit killing" "Ex-officer faces charge of murder," supra.
And there is the crux or the point to the argument. As related in Tennessee v. Garner, (supra, at 4, [1a]) (Justice White delivered the opinion of the court). "[1a] This case requires us to determine...We conclude that such force may not be used unless it is necessary to prevent the 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."
In California, which was one of the 45 states whose, Cal Penal Code Ann section 196 (West 1970), the US Supreme Court "In evaluating the reasonableness of Police Procedures under the Fourth Amendment...looked to rpevailing rules in individual jurisdictions." (id. at 12, III C), Tennessee v. Garner, surpa (citations omitted). And Calfiornia's analysis or analytical framework at the US Supreme Court looked at "...a substantial risk that the person whose arrest is sought will cause death or serious bodily harm if apprehension is delayed, Kortum v Alkire, 69 Cal App 3d 325, 333, 138 Cal Eptr 26, 30-31 (1977). See also People v Ceballos, 12 Cal 3d 470, 476-484, 52 P2d 241, 245-250 (1974); Long Beach Police Officers Assn. v. Long Beach, 61 Cal App 3d 364, 373-374, 132 Cal Rptr 348, 353-354 (1976)" id at 13 N. 15 Tennessee v. Garner, citations omitted.
In the matters of defense a logical stance is of course move the prisoner Johannes Mehserles criminal case away from the Oakland area jurisdiction, and in probability, claim it was a necessary execution out of heightened concern of security in that the execution was necessary for fear of death or serious harm. e.g. "explosives."
In the matters of the family of 22 year-old Oscar Grant, an executed prisoner, foregone his fourth amendment constituional right and his family elected to press claims in a law suit actions; it will include a host of their Constituional rights such as his first, fifth, sixth and fourteenth amendemnt rights as guaranteed by the US constitutiona. and just as Cleamtee Garner, etc. each. succeeded as a suit and a case before the US Supreme Court on behalf of an executed prisoner and his remaining family [sic] Justice will prevail.
As a society, a family and prisoner it is vital that we prevail and foremost Oscar Grant's family prevails. It is certain they too will succeed.
The need to ensure protective measures of public transportation in a turrent time, as this prestense, era, being ensnared in these terror stricken modes. Unfortunate episodes of social action and reaction will linger till law evolves and is adapt to the times and situations. In the meantime, there are remedies that we may create, or pursue till another day, when "passing judgement" is a thing of the past.
This concludes 4 prisoners in retrospect: Edward Eugene Garner, Oscar Grant, and Johannes Mehserle, also, Brooks v. Commonwealth, 61 PA 352 (186). So take my word for it, that justie will prevail, however, it is contrived or designed, it will prevail along with the need to comtemplate its very application.
