State law tends to favor police who shoot a fleeing suspect, particularly one suspected of violence, but a landmark U.S. Supreme Court decision puts parameters around violating a suspect’s civil rights, experts on the issue say.
On Aug. 3, Colorado Springs police responding to an armed robbery report stopped De’Von Bailey and Lawrence Stoker, 19, on the street. As an officer approached to pat him down, Bailey ran and ignored officers’ demands to put his hands up, body camera footage shows. Officers then shot Bailey three times in back and once in the right arm, killing him.
Officers found a gun on him after he was shot.
Much less is known about a shooting two days later in Rifle. On Aug. 5, police were attempting to arrest Allan George on an outstanding warrant for possessing child pornography when “things escalated,” according to the Glenwood Springs Post Independent newspaper. In a video shared with the paper, a person appearing to be George is seen jogging away from police when he’s shot in the back. Police said the man was armed. He died shortly after the incident.
According to Colorado law, officers are justified in using deadly force if they “reasonably believe that it is necessary” to defend themselves or another person from imminent serious harm.
But the law also directly addresses scenarios involving “fleeing felons,” which may be most applicable to Bailey’s case. The statute states that an officer may use deadly force in order to “effect an arrest or to prevent the escape from custody, of a person whom he reasonably believes .. has committed or attempted to commit a felony involving the use or threatened use of a deadly weapon.”
The latter statute “couldn’t be any more on point” when it comes to the Colorado Springs shooting, said Mitch Morrissey, a former Denver district attorney. The report to police came in as an armed robbery, making the suspects a danger to the community if they escaped, he said.
“Colorado law is clear on a violent, fleeing felon,” Morrissey said. “You can use deadly force to stop them from fleeing.”
However, in a landmark 1985 U.S. Supreme Court case, Tennessee v. Garner, the justices ruled that shooting fleeing suspects who are not an imminent threat violates the person’s constitutional rights.
“It is not better that all felony suspects die than that they escape,” the majority wrote in its opinion.
The ruling has been cited by some police shooting experts and attorneys representing Bailey’s family as potentially applicable in that case.
The problem, said Nancy Leong, a professor of the University of Denver’s Sturm College of Law, is proving intent.
“How do we know that the officer willfully violated someone’s rights?” Leong said in an email. “It’s quite rare for officers to be convicted under this statute.” There are exceptions, notably the conviction of Michael Slager, a former North Charleston, S.C., police officer sentenced to 20 years in prison for violating the civil rights of Walter Scott. Slager shot and killed unarmed Scott as he fled a traffic stop in 2015.
Videos of the police shooting can also put public pressure on prosecutors to charge officers, Leong said.
“I study these issues for a living and this is the most disturbing police-involved shooting video I have ever seen in Colorado,” she wrote.
Still, video represents only a fraction of what the district attorney will look consider. The officers will be interviewed, witnesses will be brought in, the call into dispatch will be analyzed.
“It’s extremely hard on the prosecutor to make sure they make the right decision,” Morrissey said. “People are mourning, people are grieving, people are protesting. But you have to make the decision and it has to ethical one based on the law. It’s hard to do.”
Updated 6:50 p.m. Aug. 16, 2019 This story has been revised to correct the spelling of University of Denver law professor Nancy Leong’s name.