Before we look at the different use-of-deadly-force standards we must look to the overriding standard of Graham v. Conner(4). In Graham, the United States Supreme Court stated that the proper measure to determine whether a law enforcement officer's use of force is excessive, is the "objective reasonableness" test under the Fourth Amendment. The Court stated that the Graham analysis applies to all alleged law enforcement excessive force claims - deadly or not - in the course of an arrest, investigatory stop, or other "seizure" of a free citizen. Therefore, regardless of which use-of-deadly-force standard an agency adopts, the use of force must meet the Graham Fourth Amendment "objective reasonableness" requirement of seizures.
Now let's look at six major use-of-deadly-force standards. The lowest, least restrictive, use-of-deadly-force standard is the standard enumerated by the United States Supreme Court in Tennessee v. Garner. The Garner standard, which is also referred to as the "fleeing felon standard," allows for the limited use of deadly force against fleeing felons under three restrictive criteria. Under the Garner "fleeing felon standard," a law enforcement officer can use deadly force against a fleeing felon if: (1) the use of deadly force is necessary to prevent the felon's escape, (2) the fleeing felon has threatened the officer with a weapon or the officer has probable cause to believe that the felon has committed a crime involving the infliction or threatened infliction of serious physical harm, AND (3) the officer gives the felon some warning of the imminent use of deadly force - if feasible.
Some jurisdictions which do allow the use of deadly force under the Garner standard do not include all three Garner requirements in their use-of-deadly-force statute. Remember, since a law enforcement officer's use of force is subject to the requirements of the United States Constitution, and because of the Constitution's Supremacy Clause, a state, or lower government subdivision, cannot create a use-of-force standard that is less restrictive than the standard defined by U.S. Supreme Court and federal case law as it pertains to individual jurisdictions. A law enforcement agency which adopts the "fleeing felon" standard (assuming the agency is in a jurisdiction that allows the use of deadly force under the "fleeing felon standard") must be sure to include Garner's three requirements - even if these requirements are not enumerated in the state statutes. Therefore, if an agency is in a jurisdiction which allows the use of deadly force under the "fleeing felon standard", the lowest standard that could be adopted must meet the Garner and Graham requirements. It is important to note that some jurisdictions (such as Alaska) do not allow the use of deadly force against a "fleeing felon" as defined by Garner.
An interesting question that arises is whether today, or in the foreseeable future, the United States Supreme Court would uphold the "fleeing felon" standard as an "objectively reasonable" seizure under Graham? If Graham is the test for ALL law enforcement use of force (deadly or non- deadly), then today would the U.S. Supreme Court uphold the use of deadly force (against a fleeing felon) under Garner "objectively reasonable" under Graham?
If the Commission on Accreditation for Law Enforcement Agencies (CALEA), many law enforcement agencies, and many law enforcement experts are stating that deadly force can only be "reasonably" used in deadly force confrontations, in defense of life or under the deadly-force-defense standard, then the use of deadly force (against a fleeing felon)) under Garner may be held to be unreasonable by future appellate courts. Additionally, with some law enforcement agencies and certain individual experts promulgating the "preservation of life" standard as the only reasonable standard, then the use of deadly force against a fleeing felon under Garner is definitely not a "reasonable" use of force.
A slightly higher standard (than the Garner "fleeing felon standard") is the Model Penal Code Standard(6). The Model Penal Code Standard provides, in relevant part, that a law enforcement officer may use deadly force against an individual, in the course of an arrest, if the officer believes that: (1) the arrest is for a felony; (2) the person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized as a peace officer; (3) the officer believes that the force employed creates no substantial risk of injury to innocent persons; AND (4) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force, or there is a substantial risk that the person to be arrested will cause death or serious bodily injury if his apprehension is delayed.
The next, gradually becoming more restrictive, standard is the "Deadly-Force- Defense Standard." Under the "Deadly-Force-Defense Standard" a law enforcement officer may intentionally use deadly force against an individual only if the officer objectively reasonably believes that such force is necessary to prevent the individual from inflicting imminent death or great bodily harm on the officer or others. The "deadly-force-defense standard" is the standard that most closely approximates most self-defense statutes.
Moving up the restrictiveness ladder, the next standard is the "defense of life standard." Often called the "CALEA(7) defense of life standard," the standard requires that, "an officer may use deadly force only when the officer reasonably believes that the action is in defense of human life, including the officer's own life, or in defense of any person in immediate danger of serious physical injury."(8) CALEA expressly prohibits the use of deadly force under the Garner "fleeing felon standard" and the Model Penal Code Standard.(9)
Those three standards/conditions are beyond what the Arlington, Texas PD comprehends.
About six weeks ago a guy killed several people in Fort Worth and kidnapped a young child. He dropped the child off in SE Arlington and told that person that he had more people to take care off.
The Arlington PD cornered him in his vehicle on a residential street. SWAT was called out and he was confined in their perimeter as a confirmed armed, Capital Murder suspect.
After a six hour stand off, the actor drove around the SWAT vehicle and escaped. A vehicle chase ensued and he crashed into Lake Arlington and then shot himself. No LEO fired a shot at the fleeing felon. The APD said that they didn't have a plan to stop such a person.
*Snip..."Authorities say that on Oct. 12, Arthur Jackson, 32, shot his 36-year-old estranged wife and her two children, ages 13 and 7. Jackson then drove to an Arlington church and handed over his 3-year-old daughter, who was covered in blood but uninjured."
...Despite being blocked in by heavy equipment and armed officers for more than six hours, Jackson somehow managed to slip out and drive away.
..."I'm confident it won't happen again," (APD Chief)Bowman said. After reviewing the report the Arlington City Council agreed that while mistakes were made, good police work prevented others from being hurt.