Shot Twice in the Back: A Case Tests the Fleeing Felon Defense – The New York Times

In August 2019, a man stood on a highway bridge over the Colorado River in Rifle, Colo., and pointed a gun to his chest as two police officers urged him not to kill himself.

No! Go away, said the man, Allan George, a 58-year-old construction worker who was wanted for possession of child pornography. He stuffed the gun in his pocket and scratched his head. Then he began to run slowly down the shoulder of the busy highway.

What happened next was captured, as with so many recent fatal encounters with the police, by a bystanders cellphone.

One of the officers took aim at Mr. George as he ran and shot him twice in the back, killing him.

The local district attorney declined to charge the officer.

Now, a year later, Mr. Georges family has filed a federal lawsuit against the officer, the police chief and the city of Rifle, claiming they violated his Fourth Amendment rights by using excessive force.

The suit challenges the fleeing felon defense that has given the police near impunity to use deadly force against a person escaping their custody. It is also unfolding as legislators in Colorado and other states raise the standards for when an officer can intentionally kill someone running away from them.

The complaint cites a 1985 U.S. Supreme Court ruling that restricts the use of lethal force against someone who is fleeing the police to cases in which officers believe the person poses a significant threat to officers or the public.

However, a subsequent Supreme Court ruling and states own interpretations of the 1985 decision have largely protected the police when they are investigated by prosecutors or are sued. In many cases, the police have successfully argued that they felt they had no choice but to use deadly force to protect themselves or the public.

The video of Mr. Georges death could test that defense, legal observers said, especially at a time when states are under growing pressure from a public demanding change after the killing of George Floyd in police custody in Minneapolis.

In Utah this month, Sim Gill, the district attorney in Salt Lake County, sent state legislators recommendations for changing the laws governing the use of force by the police, including that states fleeing-felon statute. Mr. Gill, who said he had long examined how use-of-force statutes conflict with the publics expectations, concluded that state laws were more generous to the police than to the public.

George Floyd sparked our consciousness in a very visible way, in a way that we cant simply talk around it, and that is because of the advent of technology and having the facts in your face, Mr. Gill said.

His recommendations came days after he announced that two officers had acted within state law when they shot an armed man who was running away from them, which led to protests outside his office.

If we want different outcomes, then we have to change the law, he said in an interview.

Until last month, the law in Colorado allowed police officers to use deadly force if they reasonably believed it was necessary to prevent death or injury. Gov. Jared Polis, a Democrat, signed a law that restricts officers from using deadly force except in cases where someone poses an immediate threat.

Colorado and Utah are among other states and towns or cities that have recently announced plans to re-examine standards for the use of deadly force to stop someone who is fleeing from the police, said Raleigh Blasdell, a criminologist at North Central College in Illinois.

What we are seeing at the local level is police departments are updating and amending their policies to provide citizens with greater protections, Professor Blasdell said.

Most states, Professor Blasdell said, have tailored their fleeing-felon statutes around the 1985 Supreme Court ruling in Tennessee v. Garner, a case involving a 15-year-old boy who was killed as he fled from a police officer in Memphis even though the officer who shot him was reasonably sure he was unarmed.

In Graham v. Connor, in 1989, the court ruled that the use of force by the police must be judged from the perspective of a reasonable officer on the scene.

The case involving Mr. George in Colorado is not clear-cut, said Chuck Wexler, the executive director of the Police Executive Research Forum, an organization of law enforcement officials that provides recommendations for police departments.

The charges he faced were more serious than the accusation of using a counterfeit $20 bill that led to Mr. Floyds arrest in Minneapolis. But the circumstances the shooting of a suicidal man who had not threatened anyone but himself are a reminder that departments should not rely on the Graham decision to justify deadly force and instead train officers to consider other tactics, Mr. Wexler said.

If this person had just committed a murder or it was an active-shooter situation, it would be very clear, he said. You want to make sure the bar is high in using deadly force.

The case underscores the tension at the heart of excruciating decisions police officers feel forced to make quickly, said Bianca Harris, director of the criminal justice program at Meredith College in Raleigh, N.C., and a former warden at the North Carolina Correctional Institution for Women.

People want to be safe and protected, she said.

But they want it to look fair, be fair and nonviolent, Ms. Harris said. Unfortunately, the reality is that safety and protection are not always achieved in nice pretty packages and often there must be a decision made that will serve the many and reinforce their safety while costing the few very heavy prices.

Jefferson J. Cheney, the district attorney for Colorados Ninth Judicial District, cited the 1985 ruling when he concluded that the officer who shot Mr. George, Cpl. Dewey Ryan, had acted lawfully.

Mr. George, who pleaded guilty in 2009 to possession of child pornography, knew he was being investigated again for the same offense and had told his wife he did not want to go back to jail. She called the police to tell them that she was worried he might kill himself, and that he had told her he was not going back to jail without a fight, according to Mr. Cheneys report.

Mr. George was driving home from work when Corporal Ryan and another officer pulled him over on a section of State Highway 13 that crosses the Colorado River.

The officers drew their weapons and ordered Mr. George out of the car. He showed them his gun and walked toward the bridge, yelling, Its all over, and threatening to jump.

Corporal Ryan told Mr. George to think of his children and repeatedly told him to drop the gun, Mr. Cheney said in his report, adding that the officers would have been justified in shooting Mr. George the moment he showed them his firearm.

Mr. Cheney wrote that the officers commanded him to drop the gun about 46 times and submit to a lawful arrest.

Corporal Ryan had reason to believe that Mr. George might be running toward downtown Rifle to take cover and shoot officers or others, the report says.

Mr. George bought the gun legally in July 2019, according to the investigation.

David Lane, the lawyer for Mr. Georges family, called the investigation a whitewash of an unlawful killing.

Mr. Cheney said he disagreed with Mr. Lane, but declined to comment further, citing the federal case. Lawyers for Corporal Ryan and Chief Tommy Klein of the Rifle Police Department, who is also named as a defendant in the lawsuit, declined to comment.

There were other ways the officers could have stopped Mr. George, Mr. Lane said, including by using a stun gun.

The police dont get carte blanche to kill people who are suicidal, he said.

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Shot Twice in the Back: A Case Tests the Fleeing Felon Defense - The New York Times

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