How A High-Profile Tennessee Police Shooting In The ’70s Reverberates Today | Nashville Public Radio

How A High-Profile Tennessee Police Shooting In The ’70s Reverberates Today

Feb 15, 2019

A Supreme Court decision in the 1980s known as Tennessee v. Garner is back in the public eye. It came up during the court proceedings for Nashville police officer Andrew Delke, who this week pleaded not guilty to  a first-degree murder charge for a fatal shooting in July. 

The 1985 decision created a higher bar that police officers had to meet to shoot a fleeing suspect, and its impact is still felt today. But how much can Garner tell us about the possible outcome of Delke's case? Not much, experts say.

Supreme Court Overturns Law

In 1974, Memphis police officer Elton Hymon was responding to a house burglary, and he spotted 15-year-old Edward Garner running away from the scene. The officer called for Garner to halt. When he kept running, Hymon fired. It was fatal.

Fast forward a decade: The U.S. Supreme Court is hearing this case because Garner's father is suing for damages for his son's death. Tennessee law at the time said police could use deadly force to prevent a suspected felon from escaping, as long as they gave a warning to stop.

But the court decides that rule is not constitutional.

"A police officer may not seize an unarmed, non-dangerous suspect by shooting him dead," Justice Byron Write writes. "We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others."

More: Nashville Grand Jury Indicts Officer Andrew Delke On First-Degree Murder Charge

Tennessee had to overhaul its laws after the Supreme Court decision, said Chris Slobogin, a criminal justice law professor at Vanderbilt. The state's law today closely mirrors the wording from Garner: Police now have to consider the threat of bodily harm to them or to others.

"It was a sea change in the law involving police use of deadly force," Slobogin said.

And more than three decades later, it's still being cited: Nashville judge Melissa Blackburn referenced Tennessee v. Garner last month in her decision to send Andrew Delke's case to a grand jury.

Limitations Of The Case

But Katherine MacFarlane with the University of Idaho College of Law says, unless the facts line up exactly, the Garner decision is not very useful. For example, unlike most fatal shooting cases, even the police in Garner agreed the victim was unarmed. 

"Based on the way it's been interpreted in future cases, the holding of Tennessee v. Garner has really been limited since 1985," she said. "It's a case that gets cited often, but it's not a case that provides an easy win for anyone that wants to prove that police use of force was unconstitutional." 

Experts say what matters in a criminal prosecution is whether the jury thinks the officer's reaction, in that moment, was reasonable.

"That's the word you find in Garner; that's the word you find in the Tennessee criminal law statute," Slobogin says.

The concept of reasonability means a jury could acknowledge an officer made a mistake in using deadly force, "but nonetheless, given the circumstances, the officer was reasonable in using it," he says.

MacFarlane says that allows for officers to be acquitted even if they shoot someone holding a cell phone that looks like a gun, for example. 

"The idea of what may be reasonable and what may not be reasonable gives the officer the benefit of the doubt," she says.

In Delke's case, the officer's attorneys will likely argue that Daniel Hambrick's possession of a gun — and their assertion that Hambrick turned around while running away — gave Delke the ability to reasonably shoot.

Indeed, the standard of reasonability has resulted in very few officer convictions around the country. MacFarlane says what is becoming slightly more common, though, is for the family of the victim to get a monetary settlement — just like the family of Edward Garner.