Bench Memos

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Alito and Fleeing Felons


Today’s Washington Post article, which I criticize here for its discussion of Alito’s Thornburgh memo, is equally bad in its discussion of a May 1984 memo by Alito. That memo addressed the constitutionality of Tennessee’s fleeing-felon statute, which embodied the common-law rule permitting the use of deadly force to prevent the escape of a felony suspect.

The article asserts that Alito, in disputing the reasoning of a court of appeals that held that a police shooting protected by the statute violated the Fourth Amendment, argued that “the rules regarding deadly force ‘must rest on the general principle that the state is justified.’” The reader would be led to think that Alito was declaring some general proposition that the “state is justified.” In fact, the article clips Alito’s quote in a way that drastically alters its meaning. What Alito wrote (in the course of a scholarly memo that recommended against amicus participation in the case) was: “Any rule permitting the use of deadly force to stop a fleeing suspect must rest on the general principle that the state is justified in using whatever force is necessary to enforce its laws.”

The article then quotes another DOJ attorney “condemning Alito’s logic as a ‘pernicious doctrine’ that ‘would literally destroy some of our most effective civil rights enforcement programs.’” An attentive reader would naturally be puzzled what the heck this means. In fact, the DOJ attorney was responding to another part of Alito’s memo in which Alito criticized that attorney’s contention (as Alito understood it) that application of the fleeing-felon rule amounts to the imposition of punishment without due process.

I’m not eager to enter a minor debate from 20 years ago between two DOJ attorneys, but I can’t say that the position of Alito’s critic—which comes in the course of a memo that describes Alito’s analysis as “thoughtful and complete” and is expressly set forth as a reductio ad absurdum argument—makes any sense to me. And I’m quite sure that the Post reporters had no grasp at all of what was being argued. Evidently it was enough for them that the other DOJ attorney used extravagant rhetoric that they in turn could use against Alito.

One other point that the article failed to mention: Although the Supreme Court in Tennessee v. Garner (1985) affirmed the ruling of the court of appeals by a 6-3 vote, Justice O’Connor, in dissent, adopted the general line of analysis that Alito set forth in his memo.


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