Fair Warning: Why the Officer Who Shot Walter Scott Likely Had to Give Some Warning Before Shooting

I've been asked a lot today about the shooting of Walter Scott. The topic that always comes up is the so-called "fleeing felon" rule. Here is the thumbnail explanation of this rule by the Supreme Court in Tennessee v. Garner:

This case requires us to determine the constitutionality of the use of deadly force to prevent the escape of an apparently unarmed suspected felon. We conclude that such force may not be used 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.

Obviously, anyone watching the video of the shooting likely has serious doubts about whether such probable cause could have existed. Even if those doubts could be quelled, however, there is a second problem for the police officer who shot Scott. In a later portion of the Garner opinion, the Court noted that

if the suspect threatens the officer with a weapon or 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. 

In other words, even if the police officer who shot Scott could establish probable cause, he had to give some warning (e.g., "Stop or I'll shoot) before using lethal force...if such a warning was feasible. Given that the video of the shooting seems to show no such warning, the question becomes whether a warning was feasible.

The clear answer seems to be "yes." As far as we can tell, Scott did not have a weapon. He was in a small park off a dirt road, not a crowded intersection. Moreover, Scott was a 50 year-old man who seemed to be lumbering in the wake of an altercation with the officer, not a spry young man sprinting away. Given these circumstances, it seems likely that some warning was feasible, meaning that the officer's use of lethal force was unreasonable even if he somehow did have probable cause to believe that Scott posed "a significant threat of death or serious physical injury to the officer or others." See, e.g., Pablo Hernandez v. City of Miami, 302 F.Supp.2d 1373, 1377 (S.D.Fla. 2004).

-CM