The Court of Appeals of Georgia decided Allen v. City of Atlanta,[i] in which the court sided with an officer who was suspended without pay for a shooting in which a passenger in a car was accidentally shot when the officer was shooting at the driver. Although the case was decided over twenty years ago, it is still applicable today because the statute interpreted by the court remains the same. The relevant facts of Allen, taken directly from the case, are as follows:
Atlanta Police Officer Kenneth Allen and two other officers were on duty in Gilliam Park where there had been complaints of drug use and prostitution. They approached a parked Jeep with two people in it. The officers identified themselves as police and Allen saw that the vehicle’s steering column was broken. The people sitting in the vehicle ignored the officers’ orders to get out of the Jeep. The person sitting in the driver’s seat started the vehicle and drove toward Allen. As the vehicle came at him, Allen fired a shot from his gun into the driver’s side window. The shot hit the driver and grazed the person sitting in the passenger seat. When the Jeep stopped, the police found cocaine in it and determined that the vehicle had been stolen.
Based on the incident, the Atlanta Police Department charged Allen with violating the department’s employee work rule 6.09 [***2] (e), which provides: “A firearm shall not be discharged if the lives of innocent persons may be in danger.” After a hearing on the charge, the department suspended Allen for three days without pay, finding that he violated rule 6.09 (e) by firing his gun and wounding the innocent passenger. Allen appealed his suspension to the Atlanta Civil Service Board, which upheld the suspension. He then filed a petition for writ of certiorari in superior court. The court denied the petition. We granted Allen’s application for discretionary review.[ii]
On appeal, Allen argued that the department policy is more restrictive than Georgia law allows. Allen cited two statutes. First, he cited OCGA § 16-3-21. Subsection (a) of this code section reads as follows:
A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force; however, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or to prevent the commission of a forcible felony.” O.C.G.A. § 16-3-21 (a).[iii]
Further, Subsection (c) of this code section reads as follows:
Any rule, regulation, or policy of any agency of the state or any ordinance, resolution, rule, regulation, or policy of any county, municipality, or other political subdivision of the state which is in conflict with this Code section shall be null, void, and of no force and effect.” O.C.G.A. § 16-3-21 (c).[iv]
Thus, no police agency can enact a policy that is more restrictive than this code section. The court of appeals held that the City of Atlanta policy that states an officer “shall not” discharge his firearm if an innocent person would be in danger violates the provision of subsection (c).
Second, Allen cited OCGA § 17-4-20, the state’s arrest statute. Subsection (b) of this code section reads as follows:
[Officers] may use deadly force to apprehend a suspected felon only when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others; or when there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm.” O.C.G.A. § 17-4-20 (b).[v]
Further, subsection (d) of this code section reads as follows:
No law enforcement agency of this state or of any political subdivision of this state shall adopt or promulgate any rule, regulation, or policy which prohibits a peace officer from using that degree of force to apprehend a suspected felon which is allowed by the statutory and case law of this state.” O.C.G.A. § 17-4-20 (d).[vi]
As before, this subsection means that no police agency can enact a policy that is more restrictive than this code section. The court of appeals held that the City of Atlanta policy that states an officer “shall not” discharge his firearm if an innocent person would be in danger violates the provision of subsection (d).
After considering the facts the case and the code sections above, court of appeals stated
[U]nder state law the presence of a bystander at a crime or arrest scene does not override all other considerations and automatically require that an officer not use deadly force, including the discharge of a weapon. Conversely, the mandatory language of rule 6.09 (e) would lead to such a result. Such a requirement contravenes not only state law, but the Department of Public Safety’s own firearms policy.[vii]
The court then examined another City of Atlanta policy that was also in conflict with rule 6.09(e).
The court then overturned Allen’s suspension for the violation of rule 6.09.
Practice Pointers:
- In light of much societal and/or political pressure in the current times, law enforcement agencies in Georgia should be mindful that they cannot adopt a rule or policy more restrictive than the state law allows.
- OCGA § 17-4-20(b) does not require officers to use deadly force. Rather, it states that they “may” use deadly force. Officers are called to arrest armed and dangerous felons. Often armed and dangerous felons resist arrest. This is very dangerous for officers. This statute strikes a balance for officers by providing them with the authority to protect themselves and the public by the use of deadly force under the circumstance listed in that subsection.
- It is also noteworthy that language of OCGA § 17-4-20(b) is very similar to the language of used by the United States Supreme Court in Tennessee v. Garner,[viii] where the Court discussed situations where it would be constitutionally reasonable to use deadly force to apprehend a fleeing suspect. Specifically, the Court stated
Where the officer has [1] 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. Thus, [2] if the suspect threatens the officer with a weapon or [3] there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.[ix]
For comparison, OCGA § 17-4-20(b) states
[Officers] may use deadly force to apprehend a suspected felon only [1] when the officer reasonably believes that the suspect possesses a deadly weapon or any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; [2] when the officer reasonably believes that the suspect poses an immediate threat of physical violence to the officer or others; or [3] when there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm.
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Citations
[i] 235 Ga. App. 516 (1998)
[ii] Id. at 1-2
[iii] Id. at 2-3
[iv] Id. at 3
[v] Id.
[vi] Id. at 4
[vii] Id. at 6
[viii] 471 U.S. 1 (1985)
[ix] Id. at 11-12 (emphasis added)
