Tennessee v. Garner: The enduring test of “objective reasonableness” (2024)


Thirty-five years ago, Tennessee v. Garner drastically changed the legal landscape concerning the use of deadly force by LEOs, paving the way for a unified standard

March 25, 2020 11:45 PM•

Lance J. LoRusso

Known by most law enforcement officers as “the fleeing felon case,” Tennessee v. Garner 471 U.S. 1(1985) is much more than that. It was in Garner that the U.S. Supreme Court first applied the “reasonableness” standard to police use of deadly force, paving the way for the landmark decision of Graham v. Connor (490 U.S. 386 (1989)) four years later.

While Graham expanded the concept of reasonableness by making it applicable to all police use of force deadly or otherwise, it did not replace Garner. Garner set and remains the standard for evaluating law enforcement use of deadly force.

The case behind Tennessee v. Garner

On the evening of October 3, 1974, Officer Elton Hymon and Leslie Wright of the Memphis Police Department were dispatched to a burglary call. They met with a neighbor who had heard the sound of glass breaking next door. Officer Hymon went to the rear of the house and observed Edward Garner running across the backyard. Hymon ordered Garner to halt, but instead, he began to climb the fence at the edge of the yard. Hymon, who later reported that he saw no weapon and did not believe Garner to be armed, fired his handgun, striking Garner in the back of the head killing him.

At the time, Tennessee, like some nineteen other states, allowed the use of deadly force to apprehend a suspected felon. [1] Garner’s father sued in federal court under 42 U.S.C. §1983 for civil rights violations. The Sixth Circuit Court of Appeals dismissed the action against Officer Hymon, finding he acted in good faith and in accordance with state law. However, the court also found that the law itself was unconstitutional as applied and that the shooting had violated Garner’s constitutional rights. [2] It was this decision that was appealed to the United States Supreme Court.

A change in standards for deadly force

Prior to Tennessee v. Garner, law enforcement uses of force had been analyzed by the federal courts in the light of the Fourteenth Amendment’s Due Process Clause. [3] Under such an analysis, the court would focus on four factors:

  • The need for the use of force;
  • The proportionality of the force used;
  • The extent of injury to the suspect;
  • The subjective intent of the officer.

Of these, the last often proved the most problematic.

In Garner, the United States Supreme Court agreed with the lower court that the shooting violated Garner’s constitutional rights. Instead of relying on the Fourteenth Amendment’s due process clause, however, the Court ruled that police use of deadly force should be viewed in light of the Fourth Amendment as a seizure of a person. As such, the Court decided that going forward, the use of deadly force should be governed by the reasonableness requirement found in the Fourth Amendment. [4]

The police department and officer in Garner argued that under the common law any necessary force, up to and including deadly force, was permissible to apprehend a felon and should therefore be allowed. In response, the Court noted that the common law also prohibited the use of deadly force to apprehend a misdemeanant. While in the past most common law felonies were serious crimes usually punishable by death, in modern times the distinction between misdemeanors and felonies is “minor and often arbitrary.”

Based upon the Fourth Amendment reasonableness standard, the Court in Garner held that:

The use of deadly force to prevent the escape of all felony suspects, whatever the circ*mstances, is constitutionally unreasonable…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.”

Garner’s Legacy

After the Supreme Court’s decision in Garner, all federal courts were required to analyze cases involving law enforcement use of deadly force under the Fourth Amendment reasonableness standard. Lesser uses of force, however, continued to be viewed under the older due process standard from the Fourteenth Amendment. In 1989, the USSC issued its opinion in Graham v. Connor building on the legal framework from Garner and applying an objective reasonableness Fourth Amendment standard to all law enforcement use of force cases.

The reasonableness standard is alive and well nearly four decades later. In 2007, the Court decided Scott v. Harris 550 U.S. 372 (2007), examining the use of deadly force to end a vehicle pursuit. Georgia deputy sheriff Timothy Scott employed a PIT maneuver to stop a fleeing motorist causing him to become a quadriplegic. The Supreme Court reiterated its findings in Garner, ultimately holding that the use of force employed by the deputy was reasonable:

A police officer’s attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death.”

In 2014, the Court further cemented this position in Plumhoff v. Rickard 134 S. Ct. 2012 (2014). In this case, officers shot 15 rounds ending a police chase that exceeded speeds of 100 miles an hour. Here again, the Court looked to the reasonableness of the officer’s actions as a Fourth Amendment seizure, holding

In light of the circ*mstances…it is beyond serious dispute that Ricard’s flight posed a grave public safety risk, and…the police acted reasonably in using deadly force to end that risk.”

The continued application of Garner in these cases and many others is clear: regardless of the method of deadly force, the applicable standard is whether or not the law enforcement action constituted a reasonable seizure under the Fourth Amendment.

Taking a step backward?

While Garner and its offspring have created a clear, simple, fair and well thought out standard, the conceptual underpinning of objective reasonableness has developed some very vocal critics. These critics are often untrained and ill-informed, with a political agenda, and are quick to judge police shootings based on little more than a snippet of video on the nightly news. They malign the objective reasonableness standard as somehow trampling the rights of those who become the subject of law enforcement action.

These critics have pushed forward in states such as California, Washington and Pennsylvania to revise state law concerning police use of force, in some cases to prosecute more LEOs who use deadly force. Proponents of such change ask for a standard that looks beyond reasonableness and also requires necessity in the police use of force. Like most law enforcement critics, their efforts are based firmly in intellectual quicksand.

Federal courts, including ironically the Ninth Circuit Federal Court of Appeals, have already considered and rejected such an approach. For example, in Scott v. Henrich, 39 F.3d 912 (9th Cir. 1994), the Plaintiff argued that an officer should have used “alternate measures” prior to deadly force, essentially arguing that deadly force wasn’t necessary. In response, the Court stated:

… as the text of the Fourth Amendment indicates, the appropriate inquiry is whether the officers acted reasonably, not whether they had less intrusive alternatives available to them. Requiring officers to find and choose the least intrusive alternative would require them to exercise superhuman judgment…Imposing such a requirement would inevitably induce tentativeness by officers, and thus deter police from protecting the public and themselves. It would also entangle the courts in endless second-guessing of police decisions made under stress and subject to the exigencies of the moment.”

It will be interesting to see how these revised state statutes fare in the courts. The proposed standard of “reasonable and necessary,” if allowed to stand, harkens back to the law before Garner, and will inevitably re-create the very problems that Garner, Graham and a host of other court decisions have already solved.

Meanwhile, amid this ongoing debate, LEOs continue to do what they always do: they come to work, answer calls, and put their lives on the line for strangers. When chaos comes, as it has now with the COVID-19 pandemic, they dutifully take their place on the front lines to protect their communities, including their critics. Fortunately, thanks to Garner, there is a strong unified legal standard in place to protect them in their noble endeavors.


1. The opinion in Garner noted that “Some 19 states have codified the common-law rule” (Garner at 16).

2. Courts may find laws unconstitutional “on their face,” or as written and applied to everyone, or “as applied,” where the basis of the law may be constitutional, but it is used in a way that is not.

3. Such an analysis was based on what is known as “substantive due process” and was rooted in the judicial decision of Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973).

4. The Fourth Amendment states that “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

This article was co-authored with Ken Davis, who is an associate attorney at the LoRusso Law Firm and handles a variety of cases involving LEOs. Previously, he was a career law enforcement officer and retired with the rank of major from the Cobb County Sheriff’s Office in Georgia after 29 years of service. During his LE career, Ken worked in assignments that included assistant watch commander at the jail, criminal investigations supervisor, internal affairs commander, training commander and academy director. He is Georgia POST-certified as a senior instructor, firearms instructor and defensive tactics instructor. Ken earned his B.S. degree in criminal justice from Kennesaw State University and his J.D. from Atlanta’s John Marshall Law School while working full-time as an LEO. Ken has been published in the John Marshall Law Journal and has been an adjunct instructor at Reinhardt University and Columbus State University.

Lance J. LoRusso

Lance J. LoRusso, a former law enforcement officer turned attorney, has been a use of force instructor for nearly 30 years and has represented over 100 officers following officer-involved shootings and in-custody deaths. Lance also handles media response, catastrophic personal injury, tractor-trailer wrecks, and wrongful death cases. He is the author of “When Cops Kill: The Aftermath of a Critical Incident” and other books focused upon law enforcement and media relations. He is licensed to practice law in Georgia, Arkansas and Tennessee. Learn more about Lance’s practice at www.lorussolawfirm.com.

Tennessee v. Garner: The enduring test of “objective reasonableness” (2024)


Tennessee v. Garner: The enduring test of “objective reasonableness”? ›

Based upon the Fourth Amendment reasonableness standard, the Court in Garner held that: The use of deadly force to prevent the escape of all felony suspects, whatever the circ*mstances, is constitutionally unreasonable

What is the test for Tennessee v. Garner? ›

According to Tennessee V. Gardner, what is the test that must be satisfied to justify the use of deadly force against a suspect? The officer must believe beyond a reasonable doubt that the suspect is armed.

What was declared unconstitutional in Tennessee v. Garner? ›

The Court held that the Tennessee statute was unconstitutional in so far as it authorized the use of deadly force to stop a fleeing suspect who posed no immediate threat to the officer or others. “It is not better that all felony suspects die than that they escape” stated the Court.

What did Scotus decide in Tennessee v. Garner quizlet? ›

In Tennessee v. Garner (1985), SCOTUS decided that: Police cannot shoot a fleeing suspect if the suspect poses no imminent danger.

What is one factor that typically helps determine whether deadly force was excessive for a civil case proceeding? ›

In making this determination, judges use the perspective of a reasonable officer on the scene, lacking the benefit of hindsight. With this perspective, courts analyze factors such as: The severity of the underlying crime or circ*mstances. Whether an immediate threat to the safety of the officer or others existed.

Why is Tennessee v. Garner so important? ›

Garner. In 1985 the U.S. Supreme Court ruling in Tennessee v. Garner severely restricted the circ*mstances under which law enforcement officers may use deadly force to arrest a suspect.

What is the purpose of Tennessee v. Garner? ›

In Tennessee v. Garner, the U.S. Supreme Court addressed the constitutionality of a Tennessee statute that authorized the use of deadly force by law enforcement to prevent the escape of a fleeing suspect.

Which of the following best characterizes the 1985 Supreme Court ruling in Tennessee v. Garner? ›

which of the following best describes the court's ruling in Tennessee v. Garner? police cannot use deadly force to prevent the escape of a felon unless the suspect poses a significant threat of death or serious injury to the officer or others.

Does Tennessee have a no-chase law? ›

“The Tennessee Highway Patrol can pursue anybody that they feel is evading their traffic stop or evading them,” said Carlisle, noting that this differs from the Memphis Police Department's chase policy. The Highway Patrol follows state laws, leaving chases at the discretion of the officer or deputy.

What were the stipulations of Tennessee v. Garner? ›

Under the Fourth Amendment of the U.S. Constitution, a police officer may use deadly force to prevent the escape of a fleeing suspect only if the officer has a good-faith belief that the suspect poses a significant threat of death or serious physical injury to the officer or others.

Which United States Supreme Court case established the objective reasonable standard to be applied to law enforcement officers in use of force incidents? ›

Introduced in Graham v. Connor, the “objectively reasonable” standard establishes the necessity for the use and level of force to be based on the individual officer's evaluation of the situation considering the totality of the circ*mstances.

Which of the following best describes the court's ruling in Tennessee v. Garner 2009 )? ›

Which of the following best describes the court's ruling in Tennessee v. Garner? Police cannot use deadly force to prevent the escape of a felon unless the suspect poses a significant threat of death or serious injury to the officer or others.

What is objective reasonableness? ›

Objectively Reasonable: The reasonableness of a particular use of force is based on the totality of circ*mstances known by the officer at the time of the use of force and weighs the actions of the officer against the rights of the subject, in light of the circ*mstances surrounding the event.

What is objective reasonableness in the 4th Amendment? ›

Under the Fourth Amendment, a police officer may use only such force as is “objectively reasonable” under all of the circ*mstances. You must judge the reasonableness of a particular use of force from the perspective of a reasonable officer on the scene and not with the 20/20 vision of hindsight.

What is the objective reasonableness standard of use of force? ›

The Court stated, “The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” The objective test requires the court to envision a reasonable officer and ask: Based on the totality of the facts and ...

What is the three prong test in Tennessee v. Garner? ›

The proportionality of the force used; The extent of injury to the suspect; The subjective intent of the officer.

What is the state testing for Tennessee? ›

Tennessee Comprehensive Assessment Program (TCAP) has been the state's testing program since 1988, and it includes TCAP assessments in math, English language arts, social studies, and science, as well as alternative assessments, like MSAA and TCAP-Alt, for students with special needs.

What is the Tennessee Ready test? ›

TNReady measures students' understanding of our current state standards in English language arts, math, social studies, and science, but it is more than just a state test. It is a way to assess what our students know and what we can do to help them succeed in the future.

What is case testing in Tennessee? ›

CASE Benchmark Assessments ensure curriculum alignment to the written, taught, and tested curriculum. CASE curriculum specialists, all former teachers and curriculum administrators, analyze state-released tests and other state curriculum support documents.

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