"...He argued in favor of letting states give police the power to shoot to kill at their discretion whenever a suspect flees, whether or not he poses a threat."

That's a quote from a must read Slate article by Emily Bazelon about a memo Supreme court nominee Samuel Alito wrote as counsel in the Solicitor general's article 20 years ago. Heads up from Geeky Chic 2.0, who noted the issue before the article came out and provided a few pointers.

From the Slate article:

In the process, the court struck down a Tennessee statute based on an 18^th-century common-law "fleeing felon" rule, which allowed police to use deadly force against a felony suspect who was trying to elude arrest. In the Garner case, the 6^th Circuit said that before shooting a suspect, a police offer must have probable cause to believe that the suspect poses a danger.

A couple of points here: 1) Deadly force is something that doesn't allow for a lot of misunderstandings. When a cop is pointing a gun and deciding whether or not to shoot based on the training and instructions and cultural taboos (or lack thereof) he or she's been given by his or her department, there is no functional difference between "trying to elude arrest," or appearing to be trying to elude arrest. All citizens who shrug and think that this entire discussion doesn't affect them or their loved ones, because they're good old law-abiding citizens, should keep that in mind--especially friends of the deaf. 2) It's not that hard to be a felony suspect. First of all, felonies are a very broad category--everything from murder to posession of certain drugs to welfare fraud. In many states, a lot of nonviolent crimes are considered felonies. A theft turns from a misdemeanor to a felony depending on the dollar amount stolen, for example. Secondly, the act of being a suspect is entirely passive--it is the police who decide you are a suspect, not the other way around. Back to the Slate article:

To Alito, the case came down to this: If Officer Hymon shot, "there was the chance that he would kill a person guilty only of a simple breaking and entering; that is essentially what occurred. If he didn't shoot, there was a chance that a murderer or rapist would escape and possibly strike again." Hymon had no reason to think that Garner had done anything violent. Still, Alito concluded, "I do not think the Constitution provides an answer to the officer's dilemma."

It's often said that an ideal of American law is that it is better to let 10 guilty people go than to unjustly imprison one innocent person. That some disagree enough to assert that it is better to jail an innocent person than to let a guilty person go--referring to decisions made in the controlled, careful environs of the court system--is shocking enough. But Alito turns this on its head--it's better to shoot innocent people rather than let one possibly guilty person go.

It's impossible to ignore the race problems studiously ignored by Alito.

Alito's memo is also striking for what it doesn't say. In Memphis and across the country, cops were shooting black suspects at a far higher rate than white ones. (The evidence, beginning with studies dating from the 1960s, is collected in a 2004 article in The Annals of the American Academy of Political and Social Science by Northwestern political science professor Wesley G. Skogan and University of Chicago law professor Tracey L. Meares.) Laws like Tennessee's made it easier for the police to shoot unarmed black people, as Edward Garner's father argued in his suit. Alito, however, ignored the racial undertones of the case.

Geeky Chic wrote:

Also, I remember the discussion of Garner in my Crim law class. Professor Randall Kennedy asked, "If you're a Black man in America, and you haven't done anything wrong, and you see a cop, isn't running away a pretty logical response?"

Emily Bazelon makes a particularly good point forestalling possible defenses of Alito: he wrote this article in the Justice Department, trying to convince the Justice department to take his view--not merely reciting the views of his bosses. In fact, the Justice department didn't listen to him, and stayed out of the case. Dahlia Litwick has another must read article in today's Slate about Alito's overall extreme stance on matters of civil liberties, and how the Roe v. Wade debate may be overlooking Bush's real reason for wanting Alito on the court. She wrote, "It's hard to conceive of someone who loves police powers more than the police. But that someone may be our next Supreme Court justice."