THE OPEN MIND
Host: Richard D. Heffner
Guest: Kenneth Conboy
Title: “The Police and Deadly Force”
I’m Richard Heffner, your host on THE OPEN MIND. Many times we’ve dealt with police and public safety matters at this table. And frequently I’ve turned for wise and insightful discussion in this area to a particularly judicious, highly skilled attorney with a consuming interest in the public’s well being as well as a meticulous concern for constitutional imperatives and for the rights of the accused.
When Kenneth Conboy first appeared on THE OPEN MIND, he was Deputy Police Commissioner of New York, responsible for the police department’s legal matters. Now Mr. Conboy is New York’s Criminal Justice Coordinator. And at a time of heated public debate about crime in the streets of America I’ve asked him here to discuss police use of deadly force. Now, obviously we’re prompted to the recent six-to-three decision of the Supreme Court of the United States in which, speaking for the high court, Associate Justice Byron White notes that, “Apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment, and 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”.
Now, in an editorial, The Washington Post concludes that, “With this sensible and humane decision, the court has wisely reduced the risk of that happening”. But three justices, including the Chief Justice of the United States, dissented. And I want to ask Mr. Conboy to shed some further light on this problem of the police and deadly force.
Mr. Conboy, tell us about this. What do we have to know about the use of deadly force by the police in light of this decision?
CONBOY: Well, Dick, would it be helpful first to just set out the facts of the case and…
HEFFNER: The facts usually help.
CONBOY: Good. The Memphis police received a call on their radio that a burglary was in progress at about 11:30 on a night in October. And two police officers of that department responded to the location and were gestured toward the residence that had been noticed to them by a neighbor. And as they approached the house they saw that the lights were on and that a window had been shattered, so they concluded quite rightly that there had been an unlawful entry. One officer stayed to radio his dispatcher that they had in fact come upon a possible felony in progress. And the second officer went to the rear of the premises. And as he did, he heard, he saw a figure running, leave the back of the house, scurry across a back yard, and reach a six-foot-high chain link fence. He withdrew his weapon and ordered the figure to stop and identified himself as a police officer. But the individual in question, who later turned out to be a young lad by the name of Edward Garner, vaulted over the fence, and as he reached the top of the fence the officer fired his revolver, and the young man was fatally wounded. The statute in Tennessee which controlled the officer’s actions authorized the termination of a felony or the stopping of a fleeing felon by the application of lethal force. It required that the officer identify himself and articulate a warning prior to the use of lethal force. And the courts up and down the line found that he had complied with the Tennessee statute. The survivor, the father of the young Garner, sued the police department and the City of Memphis and the police officer under a civil rights statute which is very broadly referred to as Section 1983, a very important civil rights provision in federal law which authorizes money damages to be paid if it can be established that a person’s civil rights had been impaired by official action by either a government bureaucracy or an individual agent of the government.
The case got to the Supreme Court primarily because there is a division in this country as to whether lethal or deadly force should be applied where there is no evidence in the record that the officer in question, the policeman, or any other person was in danger of having lethal force or in danger of serious injury coming at them from the suspect. There was clearly no indication of that here. The officer testified at the trial court that he assumed that the person was not armed. He thought him to be about 16 or 17, and in fact he turned out to be 15. He did know however that the individual had committed the felony, a burglary, and a residential burglary at night, which makes it aggravated burglary under Tennessee law and most of the statutes in our states. And he therefore proceeded to carry out his authority as he clearly had under state law.
Now, the issue in the Supreme court – and it’s a very interesting decision because it’s not decided on pragmatic grounds which I think might be more availing in terms of deciding what is or is not sound public policy, and we can get into the New York procedure and the practice of the New York police in a bit – what the court decided was that this termination of flight by the use of a pistol or deadly force constitutes a seizure under the Fourth Amendment which requires that all searches and seizures be reasonable. And since the court determined that the termination of this individual’s life was in fact a seizure of the most intrusive kind, the question for the Supreme Court was: Was what this officer did under the command of the Tennessee statute, or I should say the provision of the Tennessee statue, was that reasonable? And the majority of the court found that it was not reasonable to have as a command of law that an officer may terminate any felony with the absence of danger of lethal danger to himself or another in order merely to stop flight, in order to, for the efficiency of apprehension, if you will.
Now, the dissenting opinions, which I think deserve a great deal of study…Although I agreed with the result, they pointed out, the three justices who dissented, and Justice O’Connor wrote the opinion, that the Supreme Court in this decision effectively invalidated or revoked the common law practice and standard which is 500 years old, and that the standard embodied in the Tennessee standard is in fact the standard in at least half of our states. So what was at issue here beyond the humane question as to whether it was sound and appropriate public policy to authorize police to do this was the larger question of federalism. And the disposition on the part of some of the justices that legislatures ought to be left to fashion their own policies, and if these policies are grounded in constitutional practice and precedent, as clearly this was, that the Supreme Court should not intervene. The majority, on the other hand, felt that circumstances and the practical context in which police function had radically changed since colonial times and before. Justice White pointed out, for example, that there is a, the distinction between felonies and misdemeanors, for example, is radically different now than it was in the 18th century. He pointed out that the types of weapons used by police are considerably more lethal. That in the 18th century the typical police officer was not armed, and that the force applied was normally fists and bodily force. Justice O’Connor didn’t feel that this was particularly availing since clearly the definition of a felony as opposed to misdemeanor is, by everybody’s agreement, a local, and appropriately a local decision to make.
HEFFNER: Do you feel otherwise?
CONBOY: No. I think that the practice as struck down by the Supreme Court was pernicious. At least…
HEFFNER: “The practice”, you mean the use of deadly force?
CONBOY: Yes. Firing…
HEFFNER: Even when there was no danger to the officer or to any member of the public.
CONBOY: Yeah. Firing to terminate a felony simply as an efficient means of apprehension. I don’t think that it’s a prudent policy, particularly in cities like Memphis, and more particularly in cities like New York where the discipline of large numbers of police, which is obviously a primary and serious obligation of a police commissioner, mayor, is made infinitely m ore difficult by having a statue of that kind of the books.
Now, interestingly, the New York statute authorizes the termination of flight by lethal force where there’s a probable cause to believe a violent felony has been committed. In other words, it’s more restrictive than the Tennessee statute, but it is broader than that which is approved by the Supreme Court and which will now be invalidated. However, I want to hasten to add that the practice in the New York police department and in many other large departments, and the Supreme Courts sets this out in its opinion, prevents the application of lethal force in any felony, whether it’s violent or not, if there is no immediate danger to the life of the officer or a bystander.
HEFFNER: Do you think though that this will be interpreted by the public as just another effort on the part of the judiciary to foster the criminals’ interest rather than those of the constable?
CONBOY: I think it will. And I think that what we should try and do is educate the public on how dangerous the firing of weapons is by officers in hot pursuit of felons in the city like New York, for example. You know, Dick, it’s interesting, the New York police rule which says that an officer cannot fire unless he is in danger or another citizen is in danger was implemented in the department almost 15 years ago because of a tragic incident very similar to what we’ve described, what I’ve described in the Garner versus Memphis case. And officer was in pursuit of an individual – this was in broad daylight now – in a Manhattan street. He fired his service revolver in an attempt to stop the flight. It was in a narrow street. The bullet ricocheted off of a building and killed a small child on a terrace. And that prompted the police commissioner and others to consider how prudent it is to have this policy of indiscriminate – and that’s what it amounts to, because you don’t discriminate if you have a broad rule that says you can terminate in the case of any felony – for instance, the New York police now don’t allow the use of warning shots, because a warning shot can be as lethal to an innocent as a directed shot.
HEFFNER: But Mr. Conboy, people who watch this program now are watching in, let’s say, Washington, DC, or watching in Los Angeles and San Diego and Boston and Miami and a number of other cities. What are they finding in those cities generally in terms of police action in our country?
CONBOY: Well, I think that to the degree that you have restraint and restraining rules of the kind you have wit the New York police, to the extent that you have these kinds of rules across the country, you have less accidental firings, you have less cases of mistaken identity, you have less tragedies. Now, it’s true that the price for this is that in certain cases felons who have committed serious crimes – and by the way, as Justice O’Connor pointed out, residential burglary is a very serious crime; large numbers of rapes and large numbers of robbery and large numbers of assaults occur as a result of burglars entering dwelling houses in the nighttime when they confront persons who live there – so there’s no question that there is a downside to this, Dick. And like in most attempts to fashion a sound, prudent, middle ground, there are downsides on both sides of the coin.
HEFFNER: The downside at this point in our country though is so extraordinary when more and more people are concerned for their own public and private safety, that it would seem that the, well, the Supreme Court, as Mr. Dooley said otherwise, isn’t really following the election returns here.
CONBOY: Well, they’re not, and that’s not altogether a bad thing. I think that the analysis of the New York experience and the experience of other large cities that have rules like New York, for example, Chicago and Miami, is very positive with respect to striking a middle course between the obviously broad requirement of safety as it relates to passers-by who might get hit in the crossfire, to police officers who may be too quick to fire. Now…
HEFFNER: Can you tell that, if I may interrupt, can you tell that with a straight face to someone whose house has just been burglarized, to someone who has just experienced a felony and who attributed his or her panic and deficits here to what the courts have just done and to a softer approach to this on the part of the police? How do you tell them that on balance it works out?
CONBOY: Well, I think that what you have to do is get into the statistics. And you have to ask people to focus upon the practical consequences of having, for example, in New York City 30,000 police officers with the unrestricted right to fire at persons they believe to be fleeing felons from sites of felony crime. Now, the case before the Supreme Court was a simple one to decide in terms of the facts. It was an enclosure, it was private property, it was a circumstance where they had a call in advance. Let’s assume for the sake of discussion the typical case in New York is not quite as clear as that. There is an officer on a beat, it’s a crowded street, he is immediately, his attention is drawn to the owner of a grocery store who yells, “I’ve just been robbed”, and he points in the direction of what the officer assumes to be a young fellow going in a northerly direction and in fact the culprit has proceeded in a southerly direction. The mere shouting of “Stop” and then firing a weapon might in many, many cases result in the tragic error and miscalculation of an innocent person being either wounded or killed. There are many, many cases of this character.
Now, to the extent that a burglar in the circumstance like that in Tennessee escapes, there is no question that that is a distressing result. But shall we apply the same test to misdemeanors, for example, and allow a state statute that authorizes deadly force to be applied for someone who’s committed a misdemeanor?
HEFFNER: Is that the case anywhere?
CONBOY: No, it’s not.
CONBOY: And the reason why it’s not is because distinctions are drawn and there are, there is a recommendation that sound public polity has to address the consequences of over-broad authority in the use of lethal force. And that’s what the rule in New York, the New York police rule seeks to do. It seeks to require careful and judicious use of that firearm. And frankly there is a very, very broad perception even on the part of police in New York that this is a sound rule. If you talk to the rank and file police officer, the typical officer in New York City, he will agree that this restraint is in the long term a prudent and broadly sensible procedural approach.
HEFFNER: Can we assume then that the three justices of the Supreme Court, including the Chief Justice, were concerned about this essentially on a more philosophical, jurisprudential grounds?
CONBOY: Well, yes, they were. They were. I don’t want to minimize however the significant arguments made that burglary is a very serious crime and that large amounts of violence are associated with burglary, as I’ve indicated, rape and robbery, and that it might not be prudent to regard a suspect fleeing from a burglary the same as a suspect fleeing from a shoplifting case. For example, I think that the shoplifting is a very serious problem in New York. Many cases of shoplifting may in fact be felonies. The statutory level is $250. I think that there may be a cause for concern if the general rule were that for shoplifters and car thieves that police should not be required to be any more restrained than simply ordering a halt and then firing and shooting to kill. I don’t think that that would be viewed as a prudent course.
Now, what Justice O’Connor said was that at least in term of majority they should have viewed burglary as a violent crime. And therefore made the argument or allowed the argument to stand that a person who commits a burglary does constitute an imminent, violent threat to the public at large.
HEFFNER: Even without evidence of a firearm?
CONBOY: Correct. That was the opinion of Justice O’Connor.
HEFFNER: And the burglary would have to consist of what? The burglar would have to be going after $5, $10…what was it, $15 or $10 in this case?
CONBOY: There was $10 and a purse was found on his person. But Dick, in a burglary the law doesn’t draw distinctions with respect to the amount of property. The extraordinarily frightening character of a breaking and entry is what the law seeks to punish by making it a felony. And of course the law makes these distinctions all the time. So the justices in the dissent would have been a lot happier to have seen this case and the Tennessee statute applied and sustained on the ground that burglary is inherently violent and that the officer was justified in firing because he was dealing with an inherently violent person who, had he escaped, would have constituted a threat, quote/unquote, to another individual.
HEFFNER: Now, that opinion, or that dissenting opinion in this instance, based again upon this notion as you suggested that Justice O’Connor pointed out that historically speaking at the time of the construction of the Constitution and of the first ten amendments that deadly force could be used then and that we shouldn’t be monkeying around now with something that prevailed at the time of the formation of the Constitution?
CONBOY: Well, the real bone of contention, Dick, is the issue of what’s reasonable. And reasonableness in many, many of the court’s opinions over the last several decades has turned upon the systematic and broad adherence to a rule in a historical context over a long period of time. Where the Supreme Court itself has constantly reviewed cases where this issue has been raised in the past. So what they were suggesting is not just a slavish adherence to something that had become anachronistic, but rather that this was a continuing view of legislatures and police departments across the country on a very broad scale, and that it was not merely a kind of curiosity from the 18th century.
HEFFNER: Do you think, in terms of your experiences, that the police are hindered, or that the quest for justice is hindered by these reasonable restrictions?
CONBOY: Well, it depends on which you’re talking about.
HEFFNER: These and the whole slew of others that you and I have discussed here at other times.
CONBOY: Well, to the extent that the law, be it constitutional law of statute law, becomes opaque and ambiguous, it becomes difficult to communicate and to teach individual officers what they can and cannot do. The law must ultimately be a teacher, and it must speak in a clear voice, especially when you’re dealing with something as sensitive as police power. So, for example, if in the area of the exclusionary rule for example…the courts themselves can’t decide whether a police officer has to get a warrant to look into a briefcase of paper bag, maybe a different rule there, or a luggage compartment. Whether it’s locked or not, does that have a bearing? How far is the magistrate? What kinds of time elements are involved in the traveling? There are certain areas of constitutional law which have become so esoteric that not even circuit court judges, Dick, understand what the previous precedents were.
Let me give you one quick example. There is a case called Aguilar versus Texas, which essentially seeks to teach police how they can, to what extent they should rely upon an informant. It goes to reliability, which is a key element in getting a search warrant. And Aguilar, which is now, I guess, at least 20 years old, developed – and it’s not necessary to go into the details – but what’s called a two-pronged test of reliability. One prong goes to reliability of the informant himself in terms of his background and his credibility, and the other goes tot the reliability of the basic information which he has proffered to the police, which they now want to use as a basis to get a warrant. Well, there are over 600 citations of Aguilar in the law books. And there is still not a settled view as to what reliability means. Now, I’m not suggesting that we simply abandon the quest for clarity, but in those instances, Dick, where the law is so complex, the waters are so muddied, what you essentially have are police officers who are beyond the law, who are in this thicket of subjectivity. That’s very bad.
HEFFNER: I remember there at this table you once talked about a case in which, in terms of the various levels of judicial decision or dealing with the case there must have been 17 or 23 judges who lined up…
CONBOY: That’s right.
HEFFNER: …perhaps almost evenly…
CONBOY: That’s right.
HEFFNER: …at the level of the different jurisdiction. But you know, we just have a couple minutes left, and the question I want to put to you is, and it’s not obviously yes or no, but do you think in general that judicial concern for constitutional limitations have been a plus or a minus for my safety and the safety of the other people here in this studio?
CONBOY: Very difficult to answer that, Dick.
HEFFNER: Absolutely. I wouldn’t ask you if it weren’t difficult.
CONBOY: I think that the trend of the last five years is on balance salutary to the security, to the safety, the public safety and security of you and all other citizens who are looking to our courts and our criminal justice system and the judges to create an environment in which police can effectively function. There is a decided trend with respect to, for example, Miranda warnings, with respect to what’s called a good-faith exception to the exclusionary rule, with respect to a right to counsel. There has been a sobering practicality introduced in what had up to the last five years been, I think, a kind of unremitting theoretical approach to police practice and procedure. I think it…
HEFFNER: On the parts of the courts.
CONBOY: On the parts of the courts. And I think it is being…there is an adjustment. And this always happens in constitutional law. Anyone who looks back at the history of the court sees there is a pendulum effect, and this is now what is underway. I think that the police must be spoken to with clarity. There’s no question about it. Our police and the police power and its exercise is one of the most sensitive functions of the government, be it local, state, or national. And I think that the extent to which the court is introducing practical, a practical understanding of the burdens and difficulties of the cop on the beat, it’s positive for the cop, it’s positive for John Q. Public, and it’s positive for the defendants.
HEFFNER: I remember the matter of “If you can’t stand the heat, get out of the kitchen”. Are you looking for something that makes it overly easy for the police?
CONBOY: No, I think that that’s why I’ve suggested that this restraint in the Garner versus Memphis case is useful, because it does put a restraint on police in an area of great sensitivity, the taking of human life. And I think that to the extent that police impose upon themselves, as the New York police did ten years ago, reasonable and intelligent restraints, the courts applaud, the public is proud of the police, because they are not totally insensitive to the ramifications of indiscriminate firing of weapons in crowded streets. That’s what’s required, responsible and intelligent legal standards in the departments themselves, and an appropriate role of supervision and control by the courts.
HEFFNER: And you think we’re getting more of that around the country.
CONBOY: I think so, yes.
HEFFNER: Mr. Conboy, thank you so much for joining me today.
CONBOY: Thanks, Dick.
HEFFNER: And thanks too, to you in the audience. I hope that you’ll join us again next time here on THE OPEN MIND. Meanwhile, as an old friend used to say, “Good night and good luck”.