http://www.msnbc.msn.com/id/10443599/
Alito memo backed burglary suspect’s shooting
1984 memo may shed light on nominee's view on Fourth Amendment rights
Updated: 9:33 p.m. ET Dec. 12, 2005
WASHINGTON - While working in the Reagan administration’s Justice
Department in the mid-1980s, Samuel Alito argued that a police officer
was justified in shooting an unarmed 15-year-old trying to avoid
arrest after a burglary.
The opinion of President Bush’s nominee to replace retiring Justice
Sandra Day O’Connor, outlined in a 1984 memorandum, could provide
insight into his views on criminal procedure and Fourth Amendment
rights, which will be the subject of debate during his Senate
confirmation hearings next month.
The memo was written by Alito, then a lawyer in the solicitor
general’s office — which argues the U.S. government’s side in Supreme
Court cases — when the administration was weighing whether to get
involved in a case called Tennessee v. Garner that was then pending
before the Supreme Court.
Memo based on 1974 case
The case grew out of a police shooting of a burglary suspect in
Memphis in October 1974. Memphis police officer Elton Hymon saw
15-year-old Edward Garner running from a house and shouted for him to
halt. When Garner started to climb a chain-link fence in the backyard,
Hymon shot him in the back of the head.
Garner, who was carrying $10 and a purse taken from the house, died at
the hospital.
His father sued police and the city, arguing the shooting violated the
teenager’s Fourth Amendment right against unreasonable search and
seizure. The city countered that police were acting under state law
and a department policy allowing the use of deadly force in burglary
cases.
Asked to prepare a memo on whether the Reagan administration should
intervene and how the case should be argued, Alito wrote, “The
shooting can be justified as reasonable within the meaning of the
Fourth Amendment.”
The young lawyer contended that “a fleeing suspect in effect states to
the police: ’Kill me or let me escape the legal process, at least for
now.”’
He added, “If every suspect could evade arrest by putting the state to
this choice, societal order would quickly break down.”
Alito argued against overturning the Tennessee law, but recommended
that the administration stay out of the case.
Tennessee law struck down
The Supreme Court ruled 6-3 in early 1985 that the Tennessee statute
and department policy violated Fourth Amendment protections, setting a
precedent forbidding the use of deadly force by police except in
certain circumstances. Justice Byron White wrote the majority’s
decision.
Three justices, including Sandra Day O’Connor and the late Chief
Justice William Rehnquist, dissented, arguing the officer had to shoot
in order to prevent Garner’s escape.
“There’s a kind of robotic logic at work in his memorandum that runs
roughshod over important distinctions between nonviolent and violent
felons,” said Jamin Raskin, a constitutional law professor at American
University.
As an federal appeals court judge in 2002, Alito cited the Garner
decision in a ruling upholding a plaintiff’s right to sue a
Pennsylvania police officer in a fatal shooting. At the same time,
Alito said, the court was not saying that the suspect’s constitutional
rights had been violated.
© 2005 The Associated Press.
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Contempt of Congress meter reading-offscale.
Hello, theocracy with a fundamentalist US Supreme
Court who will ensure church and state are joined
at the hip like clergy and altar boys.
America 1776-Jan 2001 RIP
"As democracy is perfected, the office of president
represents, more and more closely, the inner soul
of the people. On some great and glorious day the
plain folks of the land will reach their heart's
desire at last and the White House will be adorned
by a downright moron." --- H.L. Mencken (1880 - 1956)
Religion is the original war crime.
-Michelle Malkin (Feb 26, 2005)
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