We concur with Justice White’s interpretation of Tennessee State law. However, we propose that more restrictive standards should be used by policemen when dealing with imminently dangerous circumstances.
The necessity standard that White proposes for governing the use of lethal force strikes the right balance in regulating violence. He insists that the police act reasonably by evaluating whether the felon’s interest in life outweighs the state’s interest in seizing the felon by lethal force. Because we honor the supreme value of human life, lethal force should only be used when there is a reasonable belief that the felon poses a significant threat to the policeman or society.
More restrictive standards of policing will minimize discretion and prevent unnecessary violence. The decision to impose death on a criminal should be left to the discretion of the judges rather than the police. A slight error in the judgement of the policeman can impose a death penalty on someone who does not deserve it. Furthermore, policemen can be driven to use lethal force because of personal biases and reluctance or incapability to seize the felon through non-violent methods.
White’s standard is less restrictive than the standard governing self-defense and the death penalty. The doctrine of self-defense requires the presence of the four conditions- imminence, necessity, proportionality and no intent to punish- whereas White’s standard only requires necessity for the use of lethal force. White’s standard should be less restrictive than the standard of self-defense because the police have legitimate authority to use violence to maintain order and safety in society. Law asks us to be better than we would otherwise be. Hence the victim of self-defense is required to follow a very high standard before using any sort of violence. The standard of self-defense would be too rigid for the police to follow as it hinders them from performing their primary duty of protecting society. The conditions for imposing the death penalty require guided jury discretion and the fulfillment beyond a reasonable doubt of at least one of the ten statutory aggravating factors. The rules of the jurisprudence of death are different from any other rules of jurisprudence. This is because ‘death is different.’ Death takes away a person’s right to have rights.
Discretion is essential for the effective functioning of law in controlling private violence and judging individuals subjectively. If discretion is expunged from the judicial system, then law would become an automatic gun and fail to take into account the totality of circumstances. However, police discretion should be limited because policemen must make quick decisions while jury discretion is far more calculated and logical.
White’s standard allows for too much police discretion. By only using necessity as the standard for the use of lethal force, White gives too much leeway to the police. Police are hyper-sensitive to signs of suspicion. They rely on stereotypes and seek human beings at their worst. To be a policeman is to face the reality of facing danger every day. Because of these reasons, we cannot allow the police to use discretion under such a broad standard of necessity. Just fulfilling the standard of necessity before using lethal force undermines the supreme value of human life. It is better that ten criminals walk free than one innocent person be killed.
White’s approach to the legal regulation of police is similar to his own approach in Brady v. United States but contradicts his approach in Miranda v. Arizona. In Brady, White also looks at the totality of circumstances to determine the voluntariness of a defendant’s plea of guilty. In both Brady and Garner, White realizes that law requires the exercise of judgement so that it does not become mechanical and impersonal. Regarding Miranda, White rejects the regulation of police discretion in interrogations, as it will only cause a loss of human dignity by limiting all confessions and returning the criminal to the environment that produced him. Thus, White implies that police regulation will only lead society into the abyss of anarchy. This contrasts sharply with White’s desire in Garner to regulate police conduct as a means of protecting the dignity of an individual’s life, even if that individual is a criminal.
White would concur with both Justice Burger in Brewer and Justice Rhenquist in Quarles. Justice Burger objects to the mechanical application of the exclusionary rule and prefers to subject criminal rights to a cost-benefit analysis. This is the same balancing method that White uses when competing interests of the felon and the policeman are at stake. Rhenquist also uses a balancing method in determining that public safety outweighs criminal rights. Rhenquist’s interest in public safety mirrors White’s interest in the supreme value of human life.
White’s hesitation in imposing a standard on the police that would hinder effective law enforcement reflects Leventhal’s point of view. Leventhal suggests that police should be given controlled freedom to serve in the best interest of public safety. Cover believes that law is a top-down, hierarchical bureaucracy in which, judges make the decisions that must be obeyed by all other legal actors. Leventhal is thus the ‘anti-Cover’ in that he recognizes that police officers have the power to make law. In Garner White rejects common law because it was constitutionally unreasonable with regards to the totality of circumstances. Thus, by rejecting common law, White, like Leventhal, understands that law in the books is different from law in action. As the police govern law in action, White hesitates to hinder the police from using discretion, which is essential for effective law enforcement.
In conclusion, we agree with Justice White’s decision to impose a standard on the use of lethal force. However, as we stress the importance of the supreme value of human life, we want greater standards to be fulfilled before the use of lethal force.