Criminal Justice

Excessive force case tests fleeing felon defense for cops

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An excessive force lawsuit filed against police officers in Rifle, Colorado, tests the contours of the so-called fleeing felon defense.

The lawsuit claims officers violated the Fourth Amendment when they shot and killed a man who jogged away from them after threatening to take his own life. Before fleeing, the man had stepped over the guardrail to the Colorado River, held a gun to his chest, and then placed it in his pocket. One officer had ordered him to put the gun down at least 34 times. Another issued the order at least 12 times.

The man, Allan George, was under investigation for possession of child pornography, and police had a warrant for his arrest. Before the August 2019 incident, George’s wife had called police to inform them she was worried her husband might kill himself, according to a New York Times story on the lawsuit and the defense.

Prosecutors declined to charge the officer who pulled the trigger, citing Colorado’s fleeing felon law, Westword reported in its story on the February lawsuit.

The Colorado law said a police officer is justified in using deadly force when he reasonably believes it necessary to make an arrest, or to prevent an escape from custody, of a person who is “likely to endanger human life or to inflict serious bodily injury to another unless apprehended without delay.” The law also allows deadly force to defend an officer or third person from the “imminent use of deadly physical force.”

When George ran with a handgun in his possession, the officers had reason to believe George might be running to take cover and engage the officers or others with his handgun, according to a report by District Attorney Jefferson Cheney. The officers had a duty to protect themselves, each other and innocent members of the public, Cheney said.

The DA also cited the 1985 Supreme Court case Tennessee v. Garner, which said an officer may use deadly force when he has probable cause to believe that the suspect poses a threat of serious physical injury, either to the officers or others. Cheney also cited a second Supreme Court case decided in 1989, Graham v. Connor, which said the reasonableness of use of force should be judged “from the perspective of a reasonable officer on the scene, rather than 20/20 hindsight.”

Lawyers who sued on behalf of George’s family say officers weren’t protected by the Colorado law because they didn’t have probable cause to believe George was likely to endanger human life.

The suit also quotes from a different portion of Tennessee v. Garner, which said: “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. 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.”

Many fleeing felon laws are based on Tennessee v. Garner, North Central College professor Raleigh Blasdell told the New York Times. Now lawmakers in several states are considering revisions to lethal force laws following the death of George Floyd. Colorado’s governor signed an amendment to the state’s law last month. The new law says officers can’t use deadly force unless someone “poses an immediate threat.”

The Denver Post calls the new law “one of the most comprehensive police reform packages in the county.” The section on deadly force sets an objective standard to evaluate when officers are reasonable in use of deadly force.

The law also bans chokeholds, requires police to wear body cameras and removes qualified immunity as a defense to officer liability.

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