You have requested our opinion on the constitutionality of the policy of the Prince George's County Sheriff's Department on the use of deadly force in the apprehension of fleeing felons.

Your question was prompted originally by the Supreme Court's decision in Tennessee v. Garner, --- U.S. --- [105 S.Ct. 1694] (1985), holding unconstitutional the use of deadly force to effect the arrest of an unarmed, nondangerous suspected felon. Subsequently, the Supreme Court decided Whitley v. Albers, --- U.S. --- [106 S.Ct. 1078] (1986), upholding the constitutionality of the use of deadly force in efforts to quell a prison disturbance. These two decisions have given rise to additional questions from other sheriffs, the Maryland Division of Correction, and local jails concerning the use of deadly force to prevent escapes by pretrial detainees or convicted prisoners.¹

For the reasons given below, we conclude as follows:

1. Your office's policy properly limits the use of deadly force in arrests to the arrest of dangerous suspects. However, the policy should be modified (i) to make explicit the requirement that there be probable cause to believe the suspect is dangerous; (ii) to permit such force only if its use is necessary to effect the arrest; and (iii) to require that a warning be given, if feasible, before deadly force is used.

2. Deadly force may be used to prevent the escape of a pretrial detainee only if (i) the officer has probable cause to believe that the detainee poses a threat of serious harm to the officer or others; (ii) the use of deadly force is necessary to prevent the escape; and (iii) the officer has given a warning, if feasible, before using deadly force.

3. Deadly force may be used, if necessary, to prevent the escape of an unarmed convicted prisoner if it is reasonably likely that the prisoner would present a risk of serious harm to others, considering (i) the nature of the institution; (ii) the characteristics of its inmates; (iii) the factors that lead to their placement there; and (iv) the officer's personal knowledge, if any, of the particular escaping prisoner.

Garner arose out of the fatal shooting of a 15-year-old boy by a Memphis, Tennessee police officer. While responding to a report of a nighttime burglary, the officer saw Garner running across the backyard of the house to a six foot high chain link fence. The officer, using a flashlight, saw Garner's face and hands, but saw no sign of a weapon.² When Garner began to climb over the fence after the officer's warning to halt, the officer shot and mortally wounded him. 105 S.Ct. at 1697.³

*2 In using deadly force, the officer acted in accordance with a Tennessee statute permitting the use of deadly force to effect the arrest of a felon fleeing from or resisting arrest.⁴ The statute thus embodied the common law rule that, while deadly force may not be used to prevent the flight from arrest of one suspected of a misdemeanor, it may be used to prevent the flight of a suspected felon. Because that rule was in effect at the time of the adoption of the Fourth Amendment to the United States Constitution, Tennessee argued that the use of deadly force against a fleeing felon must be constitutional.⁵

In its opinion, the Supreme Court noted that “there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment.” 105 S.Ct. at 1699.⁶ In determining the reasonableness of the seizure of the deceased, the Supreme Court therefore balanced the “ ‘nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.’ ” Id. (quoting United States v. Place, 462 U.S. 696, 703 (1983)).

The factors that weigh heavily against the use of deadly force are “the suspect's fundamental interest in his own life,” the unmatched “intrusiveness of a seizure by means of deadly force,” and “the interest of the individual, and of society, in judicial determination of guilt and punishment,” which is frustrated by the use of deadly force. 105 S.Ct. at 1700. The Supreme Court found that these factors outweigh the government's interest in the use or the threat of use of deadly force to encourage suspects to submit peacefully to arrest. 105 S.Ct. at 1700-01. Hence, “[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” 105 S.Ct. at 1701.

The Supreme Court did not, however, totally invalidate the statute. It held that, “[w]here the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.” 105 S.Ct. at 1701. The Supreme Court then elucidated the conditions under which the use of deadly force against a fleeing suspect is justified:

Albers arose out of the shooting of a prisoner by a guard during a prison disturbance in which one guard had been assaulted and another taken hostage by prisoners.

The leader of the disturbance, who was armed with a knife, claimed that one inmate had been killed and threatened to kill the hostage.⁷ The prison officials determined that forceful intervention was necessary to protect the hostage and the inmates who were not participating in the disturbance. The prison security manager was to attempt to free the hostage from the upper-tier cell in which he was being held. Officers armed with shotguns were ordered to follow and to shoot low at any inmate climbing the stairs toward that cell. Two warning shots were fired as the security manager climbed the stairs, and shortly thereafter, Albers—an inmate who had not been participating in the disturbance—started to climb the stairs.⁸ One of the officers fired at Albers, striking him in the leg and causing serious injury. 106 S.Ct. at 1082-83.⁹

*3 While noting that the Eighth Amendment protects convicted prisoners from the unnecessary and wanton infliction of pain, the Supreme Court pointed out that “[i]t is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause....” 106 S.Ct. at 1084.¹⁰ Moreover, what is unnecessary and wanton infliction of pain should be determined “with due regard for differences in the kind of conduct against which an Eighth Amendment objection is lodged.” Id.

Thus, in the context of providing medical care to prisoners, “deliberate indifference to a prisoner's serious illness or injury” constitutes cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 105 (1976) (quoted in Albers, 106 S.Ct. at 1084). However, when prison officials are attempting to restore order in the face of a disturbance, they must take into account the threat to inmates, prison staff, and visitors, for the safety of all of whom they are responsible. “In this setting, a deliberate indifference standard does not adequately capture the importance of such competing obligations, or convey the appropriate hesitancy to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance.” Albers, 106 S.Ct. at 1085. Instead, the appropriate standard is “ ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” Id. (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.) (Friendly, J.), cert. denied, 414 U.S. 1033 (1973)).

Applying that standard requires consideration of “ ‘such factors as the need for the application of force, the relationship between the need and the amount of force that was used, [and] the extent of injury inflicted.’ ” 106 S.Ct. at 1085 (quoting district court, 546 F.Supp. 726, 733 (D.Or.1982)). “From such considerations inferences may be drawn as to whether the use of force could plausibly have been thought necessary, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur.” 106 S.Ct. at 1085.¹¹

The policy of the Prince George's County Sheriff's Department on the use of firearms by deputies authorizes the use of deadly force in arrests under the following circumstances:

*4 Thus, your office's policy authorizes the use of deadly force only against a felon or suspected felon and only if (i) the felon used or threatened to use deadly force in committing the crime or (ii) the deputy reasonably believes that the felon would use deadly force against the deputy or others if not immediately apprehended. Those circumstances appear to be the only prerequisites to the use of deadly force. The policy does not explicitly require that the use of deadly force be necessary to effect the arrest or that the officer give warning before resorting to deadly force.

The rule enunciated in Garner has three elements: (i) the arresting officer must have probable cause to believe the suspect poses a threat of serious harm; (ii) the use of deadly force must be necessary to prevent escape; and (iii) if feasible, some warning must be given. Pruitt v. City of Montgomery, 771 F.2d 1475, 1482-83 (11th Cir.1985).

As to the first element, we note that in Garner the Supreme Court thoroughly explored, and rejected, reliance on the felony-misdemeanor distinction as a guideline for determining when deadly force may be used. Although felonies were more dangerous crimes than misdemeanors in earlier times, modern changes in the law “have ... made the assumption that a felon is more dangerous than a misdemeanant untenable. Indeed, numerous misdemeanors involve conduct more dangerous than many felonies.” Garner, 105 S.Ct. at 1703.

The crucial consideration is the dangerousness of the suspect, not the classification of the crime that he has committed or is alleged to have committed. To the extent that your office's policy could suggest that deputies may presume fleeing felony suspects to be dangerous, it creates a danger that the standards of Garner may be violated. Likewise, to the extent that your office's policy permits the use of deadly force against dangerous felons, but not against equally dangerous misdemeanants, the policy is more restrictive than Garner requires. Hence, we think it would be advisable to omit the references to felons in favor of language that focuses solely on the threat of physical harm that the suspect represents.

We think that the limitation of the use of deadly force, under your office's policy, to cases in which “the felon used or threatened the use of deadly force” or “would use deadly force ... if not immediately apprehended” is at least as restrictive as the Garner decision's limitation of the use of deadly force to cases in which “the suspect poses a threat of serious physical harm, either to the officer or to others.” 105 S.Ct. at 1701. Such a threat exists, under Garner, “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.” Id. It is conceivable that less than deadly force could cause serious bodily harm and thereby provide a basis for the use of deadly force by an arresting officer. You might consider adopting the Supreme Court's formulation, which deals specifically with the nature of the threat—“serious physical harm, either to the officer or to others.”¹³

*5 The first element of the rule of Garner also requires that the arresting officer have “probable cause to believe that the suspect poses a threat of serious physical harm.” 105 S.Ct. at 1701 (emphasis added). “Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing” that the suspect poses such a threat. See Henry v. United States, 361 U.S. 98, 102 (1959) (discussing probable cause for arrest).

Your office's policy authorizes a deputy to use deadly force only when the deputy has probable cause to believe that the suspect committed a crime involving deadly force “or when the deputy reasonably believes that the suspect would use deadly force.” We think that the reference to “reasonable belief,” in this context, adverts to the same circumstances that would constitute “probable cause” for a determination that the suspect is dangerous. Cf. Wong Sun v. United States, 371 U.S. 471, 478 n. 6 (1963) (term “reasonable grounds” in federal Narcotic Control Act means substantially same as “probable cause”). Nevertheless, to avoid any intimation that any different and lower standard of certainty as to dangerousness is permitted, it would be advisable to explicitly require the deputy to have probable cause to believe that the suspect would use deadly force.

Although your policy thus meets the first element of the rule of Garner, it fails to meet the second and third elements. As noted above, Garner requires that, even when there is adequate evidence that the suspect is dangerous, the use of deadly force be necessary to prevent the suspect's escape. Under Garner, “the use of any significant force, up to and including deadly force, not reasonably necessary to effect an arrest ... would be constitutionally unreasonable.” Kidd v. O'Neil, 774 F.2d 1252, 1256-57 (4th Cir.1985). Your policy does not require this second element and should be modified to include it.

The third requirement of Garner is that a warning be given, if feasible, before deadly force is used against a fleeing suspect. Hence, the failure of an officer to give a warning, when it was feasible to do so, “alone would have established a violation of the legal standard.” Acoff v. Abston, 762 F.2d 1543, 1548 (11th Cir.1985). Your policy does not mandate such a warning and should be amended to include it.

Thus, your office's present policy, with easily added modifications, would comply with the rule of Garner. Although there are many ways of stating that rule, you might wish to follow more closely the actual wording employed by the Supreme Court, set out in Part I of this opinion. In addition, a restatement of the Garner rule that you might find useful appears in Acoff v. Abston, 762 F.2d at 154.

Neither Garner or Albers addresses the use of deadly force to prevent the escape of a person legally committed to a detention facility pending trial on criminal charges or committed to a jail or prison to serve a sentence after conviction. Nonetheless, the Supreme Court's discussions of the interest to be weighed in Garner and Albers provide guidance regarding the use of deadly force to prevent escapes by prisoners.

*6 Clearly, there are situations in which the use of deadly force against an escapee would be justified under the rule of Garner, as well as under Albers. Where an escapee threatens a correctional officer or others with a weapon, the officer certainly has probable cause to believe that the escapee poses a threat of serious physical harm. Because the use of deadly force, if necessary, is authorized in such a situation, we address in detail only the more difficult situations involving escapees who are apparently unarmed.

“[U]nder the Due Process Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law.” Bell v. Wolfish, 441 U.S. 520, 535 (1979). Therefore, in determining the constitutionality of the conditions of pre-trial detention, “the proper inquiry is whether those conditions amount to punishment of the detainee.” Id. Generally, that inquiry turns on whether the action taken against a detainee is reasonably related to a legitimate governmental objective and whether it is excessive in relation to that purpose. 441 U.S. at 538-39.

The State has a sufficient interest in ensuring the presence of a suspect at trial to warrant detention pending trial if necessary. See Gerstein v. Pugh, 420 U.S. 103, 114 (1975). Moreover, “[p]rison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry.” Bell, 441 U.S. at 547 (emphasis added). At the same time, both the detainee and society undeniably have an interest “in judicial determination of guilt and punishment.” See Garner, 105 S.Ct. at 1700. Therefore, we think that the circumstances that justify the use of deadly force to prevent the escape of a pre-trial detainee are substantially the same as those that justify the use of such force to effect an arrest.

In Garner, the Supreme Court pointed out that felony suspects cannot be presumed dangerous automatically. 105 S.Ct. at 1703. Similarly, we think that the determinations that lead to detention pending trial do not permit a presumption that pre-trial detainees are necessarily dangerous.

Pre-trial detention is the result of a determination of the risk that the defendant will not otherwise appear for trial. Hence, the factors that form the basis for that determination are generally those “bearing on the risk of a wilful failure to appear.” Maryland Rule 4-216(f)(8). “The nature and circumstances of the offense charged” may be considered as one of those factors, but only to the extent that it is “relevant to the risk of non-appearance.” Rule 4-216(f)(1). The court may also consider “[t]he danger of the defendant to himself or herself or others.” Rule 4-216(f)(7). However, we think that the rule as a whole requires this factor, also, to be considered only as it bears on the likelihood of the defendant's appearance for trial.¹⁴

*7 Thus, the presence of a defendant in a pre-trial detention facility does not, as a general matter, indicate the likelihood that the defendant “poses a threat of serious physical harm.” See Garner, 105 S.Ct. at 1701.¹⁵ To the extent that the dangerousness of a defendant may be considered in ordering pretrial detention, the role of this factor played in any particular case will not necessarily be clear. Accordingly, we think that deadly force may be used to prevent the escape of a pre-trial detainee only under circumstances of the sort that would justify the use of deadly force to effect an arrest—that is, where there is probable cause to believe that the defendant poses a threat of serious physical harm to detention facility officers or to others; where deadly force is necessary to prevent the escape; and where some warning, if feasible, has been given. See Garner, 105 S.Ct. at 1701.

We think that the use of deadly force to prevent the escape of a convicted prisoner presents a substantially different case from that of an escaping pre-trial detainee. Because the prisoner has been found guilty of a crime and sentenced to incarceration, “[t]he infliction of pain in the course of a prison security measure ... does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense.” Albers, 106 S.Ct. at 1084.

Moreover, prison officials have a responsibility to keep prisoners incarcerated for the protection of society.¹⁶ In Albers, the Supreme Court pointed out the importance of prison administrators' responsibility to maintain order, discipline, and security in the prison. 106 S.Ct. at 1084-85. In judging actions taken in the discharge of that responsibility, courts must therefore hesitate “to critique in hindsight decisions necessarily made in haste, under pressure, and frequently without the luxury of a second chance.” 106 S.Ct. at 1085.

In our view, the attempted escape of a prisoner presents much the same kind of emergency situation as a disturbance among prisoners in the institution. Hence, we think that the constitutionality of the use of deadly force to prevent a prisoner's escape must be determined, as in Albers, on the basis of such factors as the need for the application of force and the relationship between the need and the amount of force used. See 106 S.Ct. at 1085.

In the only case we have found that directly addresses this issue, a United States District Court upheld the constitutionality of the use of deadly force to prevent a prisoner's escape. Newby v. Serviss, 590 F.Supp. 591 (W.D.Mich.1984).¹⁷ In that case, an apparently unarmed prisoner whose conviction was for a nonviolent crime was shot while attempting to escape from a medium-security prison. 590 F.Supp. at 593, 597. The trial court based its conclusion that the use of deadly force was not excessive on the following factors: (i) the guard was faced with an emergency situation; (ii) the guard had no way of knowing whether the prisoner actually was armed or had a history of violence; (iii) the guard had a duty to prevent escapes, in order to preserve order within the prison and protect the surrounding community; (iv) the guard knew that the prisoner had ignored prior warnings; and (v) there was no certainty that the prisoner's escape could be prevented by any other means. 590 F.Supp. at 597.

*8 The court in Newby suggested that the mere fact of a prisoner's attempt to escape in itself gives prison officials probable cause to believe that the prisoner poses a threat of serious physical harm: “An escapee by virtue of his escape, is a desperate individual and is in the process of committing a felony.” 590 F.Supp. at 596. It is certainly true that a particularized assessment of the risk of harm posed by a specific prisoner, based upon the prisoner's history of having threatened or inflicted serious harm, will generally be impracticable. Nonetheless, we think that it cannot be appropriately assumed that every escapee from any correctional institution is dangerous.

For example, inmates of institutions administered by the Division of Correction are classified into four security levels. Those classified at the lower security levels have been expressly determined not to pose a significant danger to persons in the institution or the surrounding community. For inmates classified at the higher security levels, of course, the reverse is true—they have been determined to pose a significant danger to the safety of others. We think that the probable dangerousness of a particular escapee accordingly can and should be predicted from the security level of the institution, the factors that lead to inmates' placement there and that indicate the likelihood that any particular inmate poses a threat of serious harm, the characteristics of the institution's inmate population in general, and whatever personal knowledge of the escapee's dangerousness the correctional officer may have.

That prediction of probable dangerousness, in turn, bears on the determination of the need for the application of deadly force. See Albers, 106 S.Ct. at 1085. The use of deadly force, if necessary, to prevent the escape of prisoners reasonably believed to be dangerous is not excessive in relation to the State's interest in keeping them incarcerated and, therefore, is not wanton and unnecessary. At the same time, we think it is clear that deadly force may never be used if it does not appear to be reasonably necessary. Cf. 106 S.Ct. at 1086.

Moreover, we think that a warning must be given, if feasible, before resorting to force to prevent a prisoner's escape. In Albers, the Supreme Court held that a verbal warning was not required where a warning shot had been fired and prison officials could believe in good faith that a warning would endanger the success of the security measure. 106 S.Ct. at 1087. In our view, however, an escaping prisoner ordinarily presents a quite different situation in this regard from that created by rioting prisoners: In an escape, a warning would ordinarily promote success, by giving the prisoner an opportunity to submit to recapture.

We recognize that any escape presents an emergency situation in which there is little or no time to make a detailed analysis of the likelihood that the escaping prisoner poses a threat of serious physical harm. At the same time, we think that the factors that enter into such an analysis lend themselves to evaluation in advance of any escape. Therefore, we think it would be advisable to develop a written policy on the use of deadly force for each correctional or detention facility, whatever its size or other characteristics. Such a policy should take into account the security of the facility, the standards that determine which inmates are placed in the facility, and the composition of the inmate population. We are aware that assessing the probable dangerousness of escapees from certain institutions—in particular, those housing inmates with various histories of violence—will be a difficult matter. Nonetheless, we think a careful consideration of these factors will make possible a reasonable estimate of the dangerousness of the inmates in each institution.¹⁸

*9 In summary, we conclude as follows:

1. Your office's policy properly limits the use of deadly force in arrests to the arrest of dangerous suspects. However, the policy should be modified (i) to make explicit the requirement that there be probable cause to believe the suspect is dangerous; (ii) to permit such force only if its use is necessary to effect the arrest; and (iii) to require that a warning be given, if feasible, before deadly force is used.

2. Deadly force may be used to prevent the escape of a pre-trial detainee only if (i) the officer has probable cause to believe that the detainee poses a threat of serious harm to the officer or others; (ii) the use of deadly force is necessary to prevent the escape; and (iii) the officer has given a warning, if feasible, before using deadly force.

3. Deadly force may be used, if necessary, to prevent the escape of an unarmed convicted prisoner if it is reasonably likely that the prisoner would present a risk of serious harm to others, considering (i) the nature of the institution; (ii) the characteristics of its inmates; (iii) the factors that lead to their placement there; and (iv) the officer's personal knowledge, if any, of the particular escaping prisoner.