Why Didn't Police Use Deadly Force to Stop Looting?

Have you wondered why the police did nothing to stop the arson, burglary and looting of the mob in Ferguson, Mo? Have you wondered why police did not use deadly force to suppress the riots there?

Under the English common law, police were authorized to use deadly force to prevent the commission of a felony, or prevent the escape of a person who had committed the felony. At the same time, under the common law, deadly force could not be used against misdemeanants, except in the case of riot, but even then only after the rioters had been ordered to disperse.

This is why when Major John Pitcairn upon reaching Lexington (April 1775) and finding the colonials, in what he perceived to be an “unlawful armed assembly,” ordered the colonials assembled  to "Lay down your arms, you ... rebels, and disperse!” He was “reading them the riot act.”

But in England before the American Revolution, almost all felonies were punishable by death. That obviously is no longer the case. In Illinois today, for example, crimes such as theft, burglary and robbery no longer carry the death penalty, and are generally punished by imprisonment or by some form of probation.

The leading case on use of deadly force by a police officer is the U.S. Supreme Court's Tennessee v. Garner (1985). In that case, a Memphis police officer, responding to a burglary call, ordered the fleeing suspect to halt. When the suspect ignored the command and continued his flight, the officer shot and killed him.

The officer used deadly force despite being "reasonably sure" the suspect was an unarmed 17- or 18- year-old of slight build. Tennessee v. Garner was a civil case for damages brought by the father of the boy shot by the officer.

The Tennessee statute in question provided that "if, after notice of the intention to arrest (has been communicated by the officer), the defendant either flees or forcibly resists arrest, the officer may use all the necessary means to effect the arrest."

The Supreme Court first held that using deadly force to prevent escape implicates the Fourth Amendment. That Amendment provides the American people with the right “to be secure in their persons against unreasonable seizures. The court then explained:

"Whenever an officer restrains the freedom of a person to walk away, he has seized that person. ... There can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment."

Based on that logic, the court next limited the police officers right to use deadly force, holding: “If the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.”

Given that holding, the reason rioters were allowed to run amok in Ferguson is obvious.

Rioters shown in the news videos were not “threatening police officers with weapons.” And unless there were people present in the businesses being looted and burned, looting and arson did not  “involve the infliction or threaten infliction of serious physical harm.” In short, deadly force would only have been justified if the police had interposed themselves between the mob and the buildings to protect the businesses, and if persons in the mob had first used or threatened deadly force against the officers.

But why put yourself in position to be killed by a mob? And if the police had responded to the mob’s use of deadly force with their own use of deadly force, even if 100 percent justified, what guarantees did the police have that the U.S. Department of Justice would not impanel a federal grand jury to investigate their violation of the mob’s civil rights?

Would the mob have been persuaded that the police officers’ response to the mob’s use of deadly force was justified? Or would the mob have chanted as the NY mobs did, “What do we want? Dead cops!” And then of course, the officers would have been sued civilly by the relatives of dead mob members for wrongful death.

So the police backed off and let the looters have at it. After all, it was only someone else’s property that was destroyed or stolen.

So, is looting and burning of businesses, and chanting “kill cops,” constitutionally protected freedom of expression? Peaceful assembly? I don’t think so. If it is, then the cops and anybody who opposes the looters should be able to chant, “kill looters,” and loot and burn down the homes of the looters.

If it’s fair for you to burn down and loot my business, why doesn’t equal protection guarantee me the right to loot and burn yours?

Posted: Saturday, January 3, 2015 12:00 am
By John Donald O'Shea

Copyright 2015 John Donald O'Shea