Deadly Force to Prevent the Escape of a Violent Felon
By Jack Ryan

Most discussions on law enforcement’s use of deadly force focuses on those circumstances where an officer is faced with an imminent threat of serious bodily harm or death to him or herself or some third party who is present at the scene of some law enforcement event. Little time is usually spent on discussing when an officer may use deadly force to prevent a suspect’s escape. A recent case, Mason v. Horan 2003 WL 22000316 (9th Cir. 2003) from the United States Court of Appeal for the 9th Circuit reiterated the rule announced in Tennessee v. Garner.

Danny Mason, the plaintiff in this case, filed suit after being shot during a pursuit with law enforcement officers. During the pursuit Mason had driven his truck in reverse straight toward a law enforcement officer causing the officer to jump out of the way and land in a cactus. Agent Horan of the DEA observed this apparent assault and fired at Mason as he drove away, attempting to flee. Mason, was charged with, and pled guilty to, assault on the agent with his motor vehicle.

The United States Court of Appeal for the 9th Circuit reviewed the trial court’s grant of qualified immunity for Agent Horan. The real question was whether an officer could prevent this type of escape by the use of deadly force. Secondly, if this use of force was not reasonable, then was the law clearly established that the use of deadly force under these circumstances sufficient to put an officer on notice that such a use would violate the Constitution.

In upholding the grant of qualified immunity, the court simply quoted the language from Tennessee v. Garner: “The standard for the use of deadly force against fleeing suspects was articulated by the Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985). While noting that ‘the use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable,’ the Court held that ‘where the officer has probable cause to believe the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.’ Thus, said the Court, ‘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 to prevent escape’ and if warning has been given.”

The court concluded that Mason’s use of the vehicle in driving toward the other agent, gave Agent Horan the probable cause to believe that Mason had been involved in the type of violent felony contemplated by Garner and thus, his use of deadly force to prevent Mason’s escape was protected by qualified immunity.

Policy Considerations

Many deadly force policies from police agencies around the country more significantly restrict the use of deadly force as a means to prevent escape. A common theme in many policies prohibits the use of deadly force when officers are dealing with assaults by means of a motor vehicle. This case provides an example of a court’s current interpretation of the law as it relates to the constitutional use of deadly force. It is also an example of how agency policies are sometimes more restrictive than the law.

Best Practices would include a strict limitation on the use of deadly force to prevent escape to only those circumstances where the fleeing violent suspect poses a threat to others by his escape.