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'84 Alito Memo Backed Police Who Shot Unarmed Suspect
By David G. Savage
The Los Angeles Times
Saturday 03 December 2005
The Supreme Court nominee wrote that killing the teen could be 'justified as reasonable.' It reinforces his image as pro-law enforcement. Washington - Supreme Court nominee Samuel A. Alito Jr.'s views on abortion caused a stir this week, but another memo that surfaced from his years as a Reagan administration lawyer was notable for its strong support of the police.
Alito wrote that he saw no constitutional problem with a police officer shooting and killing an unarmed teenager who was fleeing after a $10 home burglary.
"I think the shooting [in this case] can be justified as reasonable," Alito wrote in a 1984 memo to Justice Department officials.
Because the officer could not know for sure why a suspect was fleeing, the courts should not set a rule forbidding the use of deadly force, he said.
"I do not think the Constitution provides an answer to the officer's dilemma," Alito advised.
A year later, however, the Supreme Court used the same case to set a firm national rule against the routine use of "deadly force" against fleeing suspects who pose no danger.
"It is not better that all felony suspects die than that they escape," wrote Justice Byron White for a 6-3 majority in Tennessee vs. Garner. "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."
The 4th Amendment forbids "unreasonable searches and seizures" by the government, and the high court said that killing an unarmed suspect who was subject to arrest amounted to an "unreasonable seizure."
Said White: "A police officer may not seize an unarmed, nondangerous suspect by shooting him dead."
Alito's 15-page memo was among more than 300 hundred pages of Justice Department files that were released this week by the National Archives.
Another document was a legal analysis in which Alito laid out a strategy for overturning the 1973 Roe vs. Wade decision that legalized abortion.
The Roe memo prompted Senate Judiciary Committee Chairman Arlen Specter (R-Pa.), an abortion rights supporter, to meet again privately with Alito on Friday. Specter said afterward that Alito assured the senator that he would not allow any personal opposition to abortion to affect his judgment as a justice.
Specter said Alito drew a "sharp distinction" between views he expressed 20 years ago as a lawyer in the Reagan administration and the way he had made decisions in his 15 years as a federal judge.
"With respect to his personal views on a woman's right to choose, he says that that is not a matter to be considered in the deliberation on a constitutional issue of a woman's right to choose," said Specter.
The same year he wrote the abortion memo, Alito drafted a legal analysis of the police shooting case that adds to the perception that Alito probably would lean in favor of law enforcement in most areas of criminal law.
After leaving the Reagan administration, Alito served as the U.S. attorney in Newark, N.J. If confirmed to the Supreme Court, he will be the only justice in recent decades other than current Justice David H. Souter to have significant experience as a prosecutor.
Alito's conservative view in the case of the fleeing teenager matched that of the justice he has been nominated to replace. Justice Sandra Day O'Connor spoke for the dissenters, saying that shooting a fleeing person is necessary as a "last resort" to prevent an escape. "I cannot accept the majority's creation of a constitutional right to flight for burglary suspects," she said. Then-Chief Justice Warren E. Burger and Justice William H. Rehnquist agreed with her.
In the 20 years since the court's decision, the rule against shooting fleeing suspects who pose no danger has stood largely unchallenged.
The Tennessee case began when two Memphis police officers were called at 10:45 p.m. by a woman who said she heard someone breaking into a house next door.
When one officer entered the house, he heard a door slam.
In the backyard, the officer shined his flashlight on a youth who appeared to be unarmed and who was trying to climb a six-foot-high chain link fence to escape.
"Police! Halt!" the officer called out.
When the youth continued to climb, the officer shot him in the head.
Edward Garner, 15, died a few hours later.
Ten dollars and a purse taken from the house were found on his body.
Tennessee law allowed the police to use "all the necessary means" to stop a fleeing suspect. Garner's father sued the city and its Police Department in federal court for violating his son's constitutional rights.
A federal judge threw out the complaint. But the U.S. Court of Appeals revived it, ruling it was unconstitutional for officers to use deadly force to stop a fleeing suspect unless they believed he posed a "threat to the safety of the officers or a danger to the community." When Tennessee appealed to the Supreme Court, the justices agreed to hear the case.
Alito was then a 34-year-old assistant to the U.S. solicitor general, and he reviewed the case to decide whether the Reagan administration should file a friend-of-the-court brief supporting Tennessee.
"In my judgment, the Court of Appeals' decision is wrong and should be reversed," Alito wrote.
Nonetheless, he recommended against U.S. participation in the case because he had learned that - to his surprise - the FBI and other federal law enforcement agencies already had firm rules forbidding agents from shooting escaping people who were not dangerous.
"The extremely restrictive policies of the federal agencies militate against participation" in the Supreme Court case by federal lawyers, he said. "The court might wonder why state and local police cannot follow the same rule as federal agencies."
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