Recently listening to a 2021 national update on police reforms, I heard a police “expert” discuss the impact that Colorado’s Senate Bill 20-217 had on the “fleeing felon” rule. He incorrectly described the pre-2020 fleeing felon rule, announced in Tennessee v. Garner (1985), as “essentially say[ing] that an officer can use deadly force to stop a fleeing felon” and that SB 20-217 changed this rule. This misstatement from a “police expert” in a national presentation is very concerning and potentially deadly. Hopefully, your law enforcement jurisdiction employs an experienced police chief and legal advisor that would spot this serious error. The error can be spotted by a simple comparison of the court’s decision in Tennessee v. Garner and the relevant language in SB 20-217 and HB 21-1250.

In Tennessee v. Garner, the Memphis police relied on state law and police department policy in using deadly force against a fleeing felon. At about 10:45 p.m., the police responded to a “prowler inside call.” After arriving at the house in question, the police heard a door slam and saw someone fleeing across a backyard. They saw no weapon and were “reasonably sure” that the fleeing suspect was unarmed. When the suspect tried to escape over a fence, after a police order to “halt,” the police fatally shot him. The Tennessee statute allowed for the use of “all necessary means to effect the arrest” in this case. The U.S. Supreme Court (the “Court”) ruled that “[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” The Court further ruled that, “[w]here the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force.” Three years later, in Graham v. Connor (1989), the Court provided additional guidance and limitations on the use of deadly force.

SB 20-217 and HB 21-1250 have similar language where the police attempt an arrest for a felony involving the “use or threatened use of deadly physical force.” Section 4 of SB 20-217 and Section 8 of HB 21-1250 (now codified as C.R.S. § 18-1-707(3)) allow police to use deadly force to arrest a suspected felon “when all other means of apprehension are unreasonable given the circumstances,” and “the suspect poses an immediate threat of death or serious bodily injury to the peace officer or to another person.” The force used must not create substantial risk of injury to other persons. Notably, before SB 20-217, Colorado state law also limited the use of deadly force to stop a fleeing felon. Bottom line, it has been unlawful for many years under federal and state law for the police to use deadly force against a person solely because they are a fleeing felon. Training and policies are essential to ensuring that this law is properly understood and applied.