Tennessee v. Garner: The enduring test of “objective reasonableness”
Thirty-five years ago, Tennessee v. Garner drastically changed the legal landscape concerning the use of deadly force by LEOs, paving the way for a unified standard
By Lance J. LoRusso, Esq., and Ken W. Davis, Esq.
Known by most law enforcement officers as “the fleeing felon case,” Tennessee v. Garner 471 U.S. 1(1985) is much more than that. It was in Garner that the U.S. Supreme Court first applied the “reasonableness” standard to police use of deadly force, paving the way for the landmark decision of Graham v. Connor (490 U.S. 386 (1989)) four years later.
While Graham expanded the concept of reasonableness by making it applicable to all police use of force deadly or otherwise, it did not replace Garner. Garner set and remains the standard for evaluating law enforcement use of deadly force.
The case behind Tennessee v. Garner
On the evening of October 3, 1974, Officer Elton Hymon and Leslie Wright of the Memphis Police Department were dispatched to a burglary call. They met with a neighbor who had heard the sound of glass breaking next door. Officer Hymon went to the rear of the house and observed Edward Garner running across the backyard. Hymon ordered Garner to halt, but instead, he began to climb the fence at the edge of the yard. Hymon, who later reported that he saw no weapon and did not believe Garner to be armed, fired his handgun, striking Garner in the back of the head killing him.
At the time, Tennessee, like some nineteen other states, allowed the use of deadly force to apprehend a suspected felon.  Garner’s father sued in federal court under 42 U.S.C. §1983 for civil rights violations. The Sixth Circuit Court of Appeals dismissed the action against Officer Hymon, finding he acted in good faith and in accordance with state law. However, the court also found that the law itself was unconstitutional as applied and that the shooting had violated Garner’s constitutional rights.  It was this decision that was appealed to the United States Supreme Court.
A change in standards for deadly force
Prior to Tennessee v. Garner, law enforcement uses of force had been analyzed by the federal courts in the light of the Fourteenth Amendment’s Due Process Clause.  Under such an analysis, the court would focus on four factors:
- The need for the use of force;
- The proportionality of the force used;
- The extent of injury to the suspect;
- The subjective intent of the officer.
Of these, the last often proved the most problematic.
In Garner, the United States Supreme Court agreed with the lower court that the shooting violated Garner’s constitutional rights. Instead of relying on the Fourteenth Amendment’s due process clause, however, the Court ruled that police use of deadly force should be viewed in light of the Fourth Amendment as a seizure of a person. As such, the Court decided that going forward, the use of deadly force should be governed by the reasonableness requirement found in the Fourth Amendment. 
The police department and officer in Garner argued that under the common law any necessary force, up to and including deadly force, was permissible to apprehend a felon and should therefore be allowed. In response, the Court noted that the common law also prohibited the use of deadly force to apprehend a misdemeanant. While in the past most common law felonies were serious crimes usually punishable by death, in modern times the distinction between misdemeanors and felonies is “minor and often arbitrary.”
Based upon the Fourth Amendment reasonableness standard, the Court in Garner held that:
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable…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.”
After the Supreme Court’s decision in Garner, all federal courts were required to analyze cases involving law enforcement use of deadly force under the Fourth Amendment reasonableness standard. Lesser uses of force, however, continued to be viewed under the older due process standard from the Fourteenth Amendment. In 1989, the USSC issued its opinion in Graham v. Connor building on the legal framework from Garner and applying an objective reasonableness Fourth Amendment standard to all law enforcement use of force cases.
The reasonableness standard is alive and well nearly four decades later. In 2007, the Court decided Scott v. Harris 550 U.S. 372 (2007), examining the use of deadly force to end a vehicle pursuit. Georgia deputy sheriff Timothy Scott employed a PIT maneuver to stop a fleeing motorist causing him to become a quadriplegic. The Supreme Court reiterated its findings in Garner, ultimately holding that the use of force employed by the deputy was reasonable:
A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”
In 2014, the Court further cemented this position in Plumhoff v. Rickard 134 S. Ct. 2012 (2014). In this case, officers shot 15 rounds ending a police chase that exceeded speeds of 100 miles an hour. Here again, the Court looked to the reasonableness of the officer’s actions as a Fourth Amendment seizure, holding
In light of the circumstances…it is beyond serious dispute that Ricard’s flight posed a grave public safety risk, and…the police acted reasonably in using deadly force to end that risk.”
The continued application of Garner in these cases and many others is clear: regardless of the method of deadly force, the applicable standard is whether or not the law enforcement action constituted a reasonable seizure under the Fourth Amendment.
Taking a step backward?
While Garner and its offspring have created a clear, simple, fair and well thought out standard, the conceptual underpinning of objective reasonableness has developed some very vocal critics. These critics are often untrained and ill-informed, with a political agenda, and are quick to judge police shootings based on little more than a snippet of video on the nightly news. They malign the objective reasonableness standard as somehow trampling the rights of those who become the subject of law enforcement action.
These critics have pushed forward in states such as California, Washington and Pennsylvania to revise state law concerning police use of force, in some cases to prosecute more LEOs who use deadly force. Proponents of such change ask for a standard that looks beyond reasonableness and also requires necessity in the police use of force. Like most law enforcement critics, their efforts are based firmly in intellectual quicksand.
Federal courts, including ironically the Ninth Circuit Federal Court of Appeals, have already considered and rejected such an approach. For example, in Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994), the Plaintiff argued that an officer should have used “alternate measures” prior to deadly force, essentially arguing that deadly force wasn’t necessary. In response, the Court stated:
… as the text of the Fourth Amendment indicates, the appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them. Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment…Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment.”
It will be interesting to see how these revised state statutes fare in the courts. The proposed standard of “reasonable and necessary,” if allowed to stand, harkens back to the law before Garner, and will inevitably re-create the very problems that Garner, Graham and a host of other court decisions have already solved.
Meanwhile, amid this ongoing debate, LEOs continue to do what they always do: they come to work, answer calls, and put their lives on the line for strangers. When chaos comes, as it has now with the COVID-19 pandemic, they dutifully take their place on the front lines to protect their communities, including their critics. Fortunately, thanks to Garner, there is a strong unified legal standard in place to protect them in their noble endeavors.
1. The opinion in Garner noted that "Some 19 states have codified the common-law rule" (Garner at 16).
2. Courts may find laws unconstitutional “on their face,” or as written and applied to everyone, or “as applied,” where the basis of the law may be constitutional, but it is used in a way that is not.
3. Such an analysis was based on what is known as “substantive due process” and was rooted in the judicial decision of Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973).
4. The Fourth Amendment states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
About the authors
Lance LoRusso is a litigator with a law enforcement background. Lance focuses his practice on cases involving LEOs, responds to critical incidents and shootings, and handles catastrophic personal injury and wrongful death cases on behalf of injured LEOs, their families and friends. To date, he has represented nearly 100 LEOs in critical incidents and officer-involved shootings. Lance serves as General Counsel to the Georgia Fraternal Order of Police. He is a trainer at heart and speaks to law enforcement groups around the United States and internationally. He has been a firearms instructor for nearly 30 years and was a member of the Georgia Governor’s Twenty, the top 20 police marksmen in Georgia, for six years. He is the author of “When Cops Kill: the aftermath of a critical incident,” “Peacemaking” and “Blue News.” All profits from these books benefit law enforcement charities. He released his first novel, “Hunting of Men” in February 2020. The books are available on lancelorussobooks.com, Amazon and huntingofmen.com. For more information, visit http://www.lorussolawfirm.com.
Ken Davis is an associate attorney at the LoRusso Law Firm and handles a variety of cases involving LEOs. Previously, he was a career law enforcement officer and retired with the rank of major from the Cobb County Sheriff’s Office in Georgia after 29 years of service. During his LE career, Ken worked in assignments that included assistant watch commander at the jail, criminal investigations supervisor, internal affairs commander, training commander and academy director. He is Georgia POST-certified as a senior instructor, firearms instructor and defensive tactics instructor. Ken earned his B.S. degree in criminal justice from Kennesaw State University and his J.D. from Atlanta’s John Marshall Law School while working full-time as an LEO. Ken has been published in the John Marshall Law Journal and has been an adjunct instructor at Reinhardt University and Columbus State University.