Blank Slate

Published December 7, 2005

National Review Online

I’ve just run across Emily Bazelon’s recent Slate essay “Shoot to Kill.” I’m not a regular reader of Slate‘s legal commentators, so perhaps I’m wrong in my impression, formed in part by what Eugene Volokh charitably described as Dahlia Lithwick’s “rather overheated criticism” of Alito on the day of his nomination, that Bazelon’s title describes Slate‘s strategic approach to Alito.

In any event, Bazelon’s latest essay is strikingly dishonest or incompetent — or both. Bazelon’s essay concerns a memorandum that Alito wrote in 1984 concerning the Sixth Circuit’s ruling in a case called Garner v. Memphis Police Department. In that case, the court ruled that Tennessee’s “fleeing felon” statute, which authorized police officers to use deadly force to capture suspects fleeing from felonies, violated the Fourth Amendment and the due-process clause of the Fourteenth Amendment.

When the Supreme Court decided to review the Sixth Circuit’s ruling, Alito, as an assistant in the solicitor general’s office, was assigned to recommend whether the United States should take part as an amicus in the case. More precisely, given the federal government’s own law-enforcement interests and the jurisprudential outlook of the Reagan administration, the real question was whether the United States should file an amicus brief in support of the state of Tennessee and in opposition to the ruling below.

Alito explained in his 15-page memo that he believed that the Sixth Circuit decision was wrong. On the Fourth Amendment question, he first stated that he was “not sure” that the shooting of a fleeing felony suspect should be analyzed as a seizure. As he explained, although a killing is undoubtedly a seizure, 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 has considerable force.” Leaving this issue unresolved, he moved to the next analytical step: Assuming that there was a seizure, was the seizure reasonable?

On the question whether the seizure was reasonable, Alito found “highly relevant, if not dispositive,” the fact that the fleeing-felon rule was “universally accepted” when the Fourth Amendment was adopted. In addition, he explained at length that any rule on the topic involved “difficult moral and philosophical choices and a balancing of values that is peculiarly suited for legislative rather than judicial resolution.”

Notwithstanding this determination that the Sixth Circuit’s ruling was wrong, Alito recommended against amicus participation, and the solicitor general followed his recommendation. In the ensuing Supreme Court decision (recaptioned Tennessee v. Garner), the Court affirmed the Sixth Circuit by a 6 to 3 vote. Specifically, the Court ruled that the “use of deadly force to prevent the escape of an apparently unarmed suspected felon” violates the Fourth Amendment “unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.” Any hint of judicial legislating there? Writing in dissent, Justice O’Connor concluded, for reasons essentially the same as Alito’s, that the Tennessee statute did not violate the Fourth Amendment.

So what does Bazelon make of all this? First, she asserts that Alito “argued in favor of letting states give police the power to shoot to kill at their discretion whenever a suspect flees.” Yes, that is one very tendentious way of characterizing the conclusion that state legislatures, not federal judges, are constitutionally enabled to craft state policies on apprehending fleeing felons. But it does obscure Alito’s central point.

Second, Bazelon finds Alito’s memo “striking for what it doesn’t say” — namely, that in “Memphis and across the country, cops were shooting black suspects at a far higher rate than white ones.” As it happens, the Sixth Circuit opinion didn’t have anything to say about this either. Nor did the Supreme Court. And for good reason. What possible bearing does this point have on the Fourth Amendment question? Or on the due-process issue? Bazelon states that the victim’s father used this evidence to argue that the fleeing-felon policy “violated the Fourteenth Amendment’s guarantee of equal protection.” And perhaps he did. But that equal-protection claim was simply not part of the case at the time Alito wrote his memo. And it is a vicious smear to contend, as Bazelon does, that Alito “ignored the racial undertones of the case” and had no concern with the world of the black victim.

Third, Bazelon transmutes Alito’s unresolved stance on the question whether the shooting constituted a seizure into a position that it didn’t, as she charges that “none of the justices adopted Alito’s position.” She uses this verbal trick to avoid acknowledging that O’Connor’s position was essentially the same as Alito’s.

Fourth, Bazelon contends that “Alito was explicitly trying to persuade the administration to adopt his position.” Flat wrong. How could Alito’s recommendation that the United States not take part in a case possibly be characterized as an effort to get the administration to adopt his position? Bazelon would seem not to know up from down.

Bazelon’s distortions abound. For example, she claims that Alito opined that the police can “frisk a 10-year-old girl who is nowhere mentioned in the warrant.” But Alito’s precise point (in Doe v. Groody) was that the warrant should have been read to incorporate the attached affidavit and thereby to have covered the challenged frisk.

As the Left recklessly shoots to kill, truth is the primary victim. An honest debate, instead of lies and distortions, would be refreshing.

Edward Whelan is president of the Ethics and Public Policy Center and is a regular contributor to NRO’s “Bench Memos” blog on judicial nominations.

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