Alito backed vast police powers

Reagan-era memo finds killing a fleeing unarmed teen reasonable under Constitution


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 fatally shooting 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 v. 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 Fourth 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."

Alito's 15-page memo was among several hundred pages of Justice Department files that were released this week by the National Archives. Another was a legal analysis in which he laid out a strategy for overturning the 1973 Roe v. Wade decision that established a constitutional right to abortion.

That memo prompted the chairman of the Senate Judiciary Committee, Arlen Specter, a Pennsylvania Republican who is an abortion rights supporter, to meet again privately with Alito yesterday. Specter said afterward that Alito assured him 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 has made decisions in his 15 years as a federal judge.

The same year he wrote the abortion memo, Alito drafted a legal analysis of the police shooting case.

Alito's conservative view in the case of the fleeing teenager matched that of the justice he would 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.

In the 20 years since then, 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 6-foot 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, the 15-year old who had tried to flee, died a few hours later. Ten dollars and a purse were found on his body.

Tennessee law allowed the police to use "all necessary means" to stop a fleeing suspect. Garner's father sued the city and its police department 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 is unconstitutional for officers to use deadly force to stop a fleeing suspect unless they believe he "poses 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, then a 34-year-old assistant to the U.S. solicitor general, reviewed the case to decide whether the Reagan administration should file a friend-of-the-court brief on Tennessee's side.

"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, to his surprise, that the FBI and other federal law enforcement agencies already had firm rules forbidding agents from shooting escaping persons who were not dangerous.

David G. Savage writes for the Los Angeles Times.

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