Bench Memos

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Recycling Bazelon on Fleeing-Felon Memo


The Commerical Appeal, a Memphis newspaper, is recycling one aspect of Emily Bazelon’s wildly distorted account of Alito’s 1984 memo on Tennessee’s fleeing-felon statute. Its article (registration required) states: “Alito’s theory that the shooting did not constitute a seizure ‘is a very extreme position that was endorsed by no one on the Supreme Court,’ said University of Chicago law professor Albert Alschuler, who specializes in constitutional law.”

This passage is deceptive in two respects. First, it obscures what Alito in fact wrote. In a careful analysis, Alito first stated that he was “not sure” that the shooting of a fleeing felony suspect should be analyzed as a seizure under the Fourth Amendment. Although a killing would undoubtedly satisfy the definition of a seizure, he pointed out that what the Sixth Circuit found objectionable was not the mere fact that the suspect was prevented from fleeing but the additional fact that deadly means were used. The analytical question that Alito raised was whether the Fourth Amendment, as opposed to some other provision of the Constitution, “defines the circumstances in which homicide is justifiable.” He opined that a “yes” answer to this question “strikes me as dubious.” At the same time, he acknowledged that “the contrary argument”—that is, the argument that the shooting should be analyzed as a seizure—”has considerable force.” Leaving this issue unresolved, he moved to the next analytical step: Assuming that there was a seizure, was the seizure reasonable?

In short, what the article labels “Alito’s theory” was a position that he only tentatively advanced, and Alschuler’s characterization of the theory as “very extreme” would appear not to rest on careful consideration of what Alito wrote.

Second, the article entirely ignores the fact that Justice O’Connor’s dissent (for herself and two other justices) in Tennessee v. Garner concluded, for reasons essentially the same as Alito’s, that the Tennessee statute did not violate the Fourth Amendment.

The article closes by quoting, and seemingly crediting, an assertion by the attorney for Garner (the father of the shooting victim) that the Court’s decision in Tennessee v. Garner has “saved thousands of lives throughout the country annually.” Mightn’t a reporter be a bit skeptical of this farfetched (and self-serving) statistic?


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