1 I. Introduction 1 I. Introduction

The case Durham v. State serves as an introduction to the criminal law course because of its basic but profound recognition of the violence at the core of the state’s ability to arrest and punish individuals who resist the law. Law enforcement depends on force, that is, state coercion of individuals to obey the law and to submit to legal authority, through the threat of punishment.

This course deals with the what, why, and how of criminal law: What should be criminal? Why should it be criminal? How do we define a crime, and how should we punish it? It also deals with the “so what” of criminal law: How does it reflect our values? How does it shape our society? How does it contain our views of what it means to be human? What is criminal law for?

Throughout the course we will also consider the common justifications of criminal punishment: (1) retribution; (2) deterrence; (3) incapacitation; and (4) rehabilitation.

1.1 Durham v. State 1.1 Durham v. State

199 Ind. 567

DURHAM
v.
STATE OF INDIANA

No. 25,179.
Filed December 23, 1927.

From Kosciusko Circuit Court; Lemuel W. Royse,

James A. Durham was convicted of assault and battery, and he appeals. Reversed.

J. Edward Headley, for appellant.

Arthur L. Gilliom, Attorney-General, for the State.

MARTIN, J.—Appellant, a deputy warden or commissioner of fisheries and game, of the Indiana Department of Conservation, while engaged in the duties of his office, arrested and sought to hold in custody one Charles Long, for a violation of the fish and game law, which violation (taking fish by means of a gill net) appellant claimed had just been committed within his view, on Little Tippecanoe Lake about midnight, December 4-5, 1925. Long, after being placed under arrest, resisted, and, with a companion, attempted to escape in a row boat. Appellant, wading out in the water, clung to the boat and, after an exciting struggle or fight in the edge of the lake, shot Long with a revolver and wounded him.

The prosecution was by affidavit in one count charging appellant with unlawfully committing an assault and battery  with intent and premeditated malice to kill and murder Long, and, after a trial by jury and a verdict of guilty of assault and battery and assessing a fine of [570] $700 was returned, judgment was rendered on the verdict.

Alleged errors, assigned as reasons in support of appellant’s motion for a new trial, which was overruled, include the giving of three instructions on the court’s own motion and in refusing to give a number of instructions requested by appellant.

The evidence pertinent to a consideration of the questions raised herein, briefly stated, is as follows: The prosecuting witness, Long, testified that he rowed the boat occupied by himself and his companion, Hammond, in to shore, that he stepped out on a pole laid out on the margin of ice at the lake's edge, and pulled the boat up;  that appellant ran up to him, put his hand up him, and said, "You are under arrest"; that Long forcibly pushed appellant away with his open hand, got back in the boat and that he and his companion pushed the boat out in the water with oars or paddles.  That appellant ran toward the boat, wading out in the water and mud up to his knees (going in to his arm pits when he ran across to grab the bow) holding on first to the bow and later to the chain of the boat. That Long and Hammond would push and drag appellant out into the mud and water of the lake and appellant would yank the boat back. This happened “a few times.” That appellant said, "Lay down that oar," “Put that oar down," "Cut it out," and that "he would shoot unless if I didn't lay the oar down" and that "he hollered for Manuel" (another game warden). That appellant shot twice the second shot hitting Long, who was still "pushing the boat off," that Long then grabbed appellant's revolver and appellant "jerked back and hit me with it." That Long then grabbed the chain, but did not get it away from appellant, then Long struck at and hit appellant's gun and arm with an oar and then punched appellant in the stomach with the oar, the ap [571] pellant then "snapped the gun at me, but it didn't go off” and that Long finally jerked the chain away from him and escaped.

The appellant testified that when Long stepped out on shore, he stepped from behind some bushes, approaches and said, “You men are under arrest; I am an officer, come on over to the lantern" (which Long had left on shore). That Long said, "I won't do it," that he took hold of Long's arm twice, but that Long jerked away, broke loose from him, struck him about the body with his fist, jumped into the boat and shoved it out into the lake. That appellant called for Manuel Klick (the other warden). That he waded into the lake and grabbed hold of the bow of the boat, that Long struck at him trying to make him let go of the boat but that he took his hands off, dodged the blows and again took hold of the boat; that Long turned to Hammond and said, “Hand me the boat oar and I will brain the son of a bitch.” That Hammond handed Long the boat oar, and Long struck appellant a lick on the left shoulder, knocking him loose from the boat, whereupon appellant grabbed the boat's chain which hung down in the water, fired a shot with his revolver into the water, and said, “If you do that again I'll shoot you." That Long then struck at him several times, hitting him once on the left side of the face or cheek, while appellant kept telling him to, "Cut it out or I will shoot you.” That Long again hit appellant on the shoulder close to the neck, whereupon appellant, who was then in water up to his armpits, shot at Long's arm to disable him and make him quit striking with the oar, and wounded him in the ice cold water. That appellant feared for his life, being afraid Long would hit him over the head and sink him in the ice cold water. That Long then got back further in the boat, pushed and rowed, that appellant hung on until he [572] was exhausted and had to let loose of the chain and let them go.

Instruction eight given by the court was incorrect and erroneous, and appellee in its brief on confession of errors admits this and says, "We are unable to show from the record that appellant was harmed by this instruction. He was actually found guilty of the degree of offense which the court erroneously defined." The court in this instruction undertook to define assault and battery but omitted the element of unlawfulness. The touching alleged to be in a rude, insolent or angry manner must also be alleged to be unlawful before it can constitute the offense for which appellant was convicted. §2419 Burns 1926; Cranorv. State (1872), 39 Ind. 64. The failure of the court, in instruction eight, to state this element of the offense was particularly prejudicial to this appellant’s rights because the nature of his duties as a peace officer (§4755 Burns 1926) makes necessary aggressive acts which may be lawful when performed by an officer in making an arrest, but which would be unlawful if performed by a private individual.

Instruction fifteen was to the effect that, before a defendant can exercise the right of self-defense, he must be free from fault, and that, if by his own unauthorized acts, he brought the assault upon himself, then he cannot claim the right of self-defense against such assault. This instruction, as an abstract proposition of law, is correct, but in the instant case, where the defendant was an officer of the law engaged in carrying out his duties as such, he was entitled to have included in the instructions a further statement of the law applicable to the exercise of self-defense by an arresting officer. The usual rules of the law as to self-defense are applicable to an arresting officer, but with certain qualifications. An officer may, of course, defend[573] himself like any other person who is assaulted, but the law does not stop there, but throws around him a special protection because he must of necessity press forward and accomplish his object, 2 R. C. L. 474, and, in such a case, the officer is entitled to have the jury so instructed. Loveless v. Hardy (1918), 201 Ala. 605, 79 So. 37. The acts of appellant in seeking to prevent Long's escape, prior to his act of shooting, could not, under any theory of law, be considered as "his own unauthorized act," but on the contrary, were acts expressly required of him by law.

Instruction twelve was to the effect that if Long resisted arrest, appellant would not be authorized to use such force and instrumentalities as would imperil the life of Long in order to overcome his resistance; that human life is too precious to be imperiled by arrest of one who is only guilty of a misdemeanor; that if appellant, in order to overcome Long's resistance, used a dangerous and deadly weapon, and in such manner as to endanger his life, and thereby inflict serious wounds, then the appellant would be guilty of assault and battery, at least. This instruction, standing alone or considered in conjunction with instruction fifteen and the other instructions, did not correctly state the law, and the court erred in giving it.

Our general statutes concerning arrests, and applicable to all classes of criminal cases, provide that: “the defendant shall not be subject to any more restraint than is necessary for his arrest and detention." §2157 Burns 1926. "If, after notice of intention to arrest the defendant, he either flees or forcibly resists, the officer may use all necessary means to effect the arrest." §2159 Burns 1926.

In Plummer v. State (1893), 135 Ind. 308, 34 N. E. 968, the court said:

“The law does not allow a peace officer to use more force than is necessary to effect an [574] arrest. . . .  And if he do use such unnecessary force, he . . . may be lawfully resisted. . . . If the  officer is resisted before he has used needless force and  violence, he may then press forward and overcomeresistance, even to the taking of the life of the personarrested, if absolutely necessary."

The degree or limit of force that lawfully may be employed by an officer in arresting one charged with a misdemeanor (as distinguished from a felony) has been considered in a large number of cases in other jurisdictions. See cases collected and cited in 5 C. J. 426; 2 R. C. L.  473; 2 Brill, Cyc Criminal Law §§692, 713; Laning, Arrest and Prosecution p. 508; Clark and Marshall, Law of Crimes (2d. ed.) §271; Notes in 3 A. L. R. 1170-1177 and in 42 A. L. R. 1200-1207.

The general rules deduced therefrom may be stated to be:

(A) that an officer having the right to arrest a misdemeanant may use all the force that is reasonably necessary to accomplish the arrest, except

(B) that he may not merely for the purpose of effecting the arrest, kill or inflict great bodily harm endangering the life of the misdemeanant;[1] thus an officer may not kill or shed blood in attempting to arrest a misdemeanant who is fleeing, but not resisting.[2]

[575] That if the defendant physically resists, the officer need not retreat, but may press forward and repel the resistance with such force, short of taking life, as is necessary to effect the arrest; and if in so doing, the officer is absolutely obliged to seriously wound or take the life of the accused, in order to prevent the accused from seriously wounding or killing him, he will be justified.[3]Smith v. State (1894), 59 Ark. 132, 26 S. W. 712, 43 Am. St. 20; Fugate v. Commonwealth (1920), 187 Ky. 564, 219 S. W. 1069; Smith v. Commonwealth (1917), 176 Ky. 466; State v. Dunning (1919), 177 N. C. 559, 98 S. E. 530, 3 A. L. R. 1166 and note; State v. Dierberger (1888), 96 [576] Mo. 666, 675, 10 S. W. 168, 9 Am. St. 380; Krueger v. State (1920), 171 Wis. 566, 177 N. W. 917.

To adopt the rule contended for by the prosecution in the trial below and stated by the court in instruction twelve would be to paralyze the strong arm of the law and render the state powerless to use extreme force when extreme resistance is offered, and would permit misdemeanants to stay the power of the state by unlawful resistance.[4]

"To say to a defendant 'you may measure strength with the arresting officer, and avoid being taken if are the stronger, or, after your arrest, you may break away unless he can prevail over you in a wrestle,' is to elevate mere brute force to a position of command over the wheels of justice" 1 Bishop, Crim. Proc. (2d ed.) §16.

In the trial of this case, it would seem that the duty of officers to enforce the fish and game laws (§§ 4743, 4755 Burns 1926) and to prevent a prisoner from escaping from custody (§2608 Burns 1926) as well as the duty of citizens to submit peaceably to lawful arrest were almost lost sight of. This is illustrated by the following quotations from the record of the cross-examinations of the appellant:“Q: You knew at that time, [577] Mr. Durham, you would have been in perfect safety if you had let loose of the chain? A. They (the state) didn't employ me to let loose of the chain. Q. You held on to that chain notwithstanding the fact that you thought you would be brained, for the purpose of effecting that arrest, didn't you? A. I held on to the chain to arrest those fellows and keep them there until my partner returned. Q. Didn’t you know you would have been in perfect safety without chance of a scratch if you let loose of that chain? The court overruled appellant's objection to this question. A. No I didn't. He might have hit me before I got back out of the water. Q. He wasn't pursuing you at any time, was he? A. He was striking at me. Q. You knew if you let loose of that chain or boat that Long and he (Hammond) would get away from you didn't you? A. Yes Sir.”  It also appears from the record that the prosecuting attorney refused to prosecute Long for his violation of the law and promised him that he would not be prosecuted if he would testify for the state in this case.

Many acts which are not inherently wrong and involve no moral turpitude, have been made unlawful by statutes enacted in the interest of the welfare of the public or state, or for the conservation of its natural resources. The law against seining fish is such a law, and respect for our government and its authority requires that a citizen obey the law. It is a narrow attitude and one that is dangerous to our country for those who may feel that their personal rights and liberties have been wrongfully curtailed by legislation to seek to nullify the law by violation thereof and by defying constituted legal authority when placed under arrest.

Instruction twelve was also bad for two additional reasons. (1) It failed to instruct on the question of [578] what constitutes an arrest. It was material in this case for the jury to know what constituted an arrest and the statutory definition of arrest and the authority and requirements in respect thereof should have been embodied in the instructions. The court also refused to give an instruction tendered by appellant defining arrest. (2) It required that appellant should have been more specific in informing Long that he was an "officer," and should have stated that he was a "deputy game warden and was making the arrest deputy game warden." The evidence was sufficient to submit the question of a valid arrest to the jury without a special requirement being made by the court in respect to the particular classification of appellant as an officer.

The judgment is reversed, with directions to sustain appellant's motion for a new trial and for further proceedings not inconsistent herewith.

[1] The law considers it better and more in consonance with modern ideas regarding the sanctity of human life to allow one to escape who is guilty only of a misdemeanor, and whose offense will subject him only to a small fine or short imprisonment, rather than to sacrifice his life. Reneau v. State (1879), 2 Lea (70 Tenn.) 720, 31 Am. Rep. 626; United States v. Clark (1887), 31 Fed. 710; Thomas v. Kinkhead (1892), 55 Ark. 502, 18 S. W. 854, 29 Am: St. 68, 15 L. R. A. 558; Head v. Martin (1887), 85 Ky. 480, 3 S. W. 622; Skidmore v. State (1877) 2 Texas Court of Appeals 20.

[2] The most common examples of this class of cases are those where officers shoot at misdemeanants, their mounts, or their automobile tires and wound or kill the misdemeanants.

"To permit the life of one charged with a mere misdemeanor to be taken when fleeing from the officer would, aside from its inhumanity be productive of more abuse than good. The law need not go unenforced. The officer can summon his posse and take the offender.” Head v. Martin, supra.

See the following: Note 67 L. R. A. 300; Wiley v. State (1918), 19 Ariz. 346, 170 P. 869, L. R. A. 1918D 878 and note: Brown v. Weaver(1898),  76 Miss. 7, 42 L. R. A. 428; Commonwealth v. Loughhead (1907), 218 Pa. 429, 120 Am. St. 896; Sossamon v. Cruse (1908), 133 N. C. 470;  State v. Coleman (1905), 186 Mo. 151, 84 S. W. 978, 69 L. R. A. 381.

[3] Most of the texts divide the cases involving shooting or killing of those arrested for misdemeanors by officers where resistance is met, into two classes: (a) Those holding that, if a misdemeanant resists arrest, the officer may use such force as is necessary to effect it, even to severely injuring or killing the offender; and (b) those holding that the officer is never justified in taking or endangering life except in seIf-defense. 5 C. J. 426, Arrest §62 n. 95, 97 and 98; 2 R. C. L. 473, Arrest §30 n. 8, 4 and 7; 2 Brill, Cyc Cr. Law n.73-77, §713 n. 33; Clark and Marshall, Law of Crimes (2d. ed §271; Note 3 A. L. R. 1175;  Note 42 A. L. R. 1203. But, as has already been noted, the protection which an officer is entitled to receive in making an arrest is a different thing from self-defense, for it is his duty to push forward and make the arrest and to secure and retain custody of the prisoner, and Mikell in Clark, Cr. Froc. (2d ed.) §17. note 50 points out that: "though in theory the distinction between killing to effect the arrest and killing only in self-defense may be important, the result in an actual case is  the same. . . . All cases agree that the officer need not abandon the effort to complete the arrest because of. . . . resistance. . . . and that it is his duty to continue this effort. . . . It will never be apparently necessary to kill to effect the arrest until the officer’s life is in apparent danger, for until that time it does not appear but that a little more force than is being used will be sufficient to effect the arrest without killing."

See, also, the following cases in support of the text above: Donehy & Prather v. Commonwealth (1916), 170 Ky. 474; Commonwealth v. Marcum (1909), 135 Ky.1, 122 S. W. 215, 24 L. R. A. (N.S.) 1194; Thomas v. Kinkead, supra; State v. Coleman (1905), 186 Mo. 151, 69 L. R. A. 381; Loveless v. Hardy, supra; Commonwealth v. Greer (1898), 20 Pa. Co. 535;  State v. Garrett (1863), 60 N. C. 144, 84 Am: Dec. 359; Lynn v. People (1897), 170 Ill. 527, 48 N. E. 964; U. S. Bank & Trust Co. v. Switchmens Union (1917), 256 Pa. St. 228, 100 Atl. 808, L. R. A. 1917E 311.

[4] An officer, in the performance of his duty as such, stands on an entirely different footing from an individual. He is a minister of justice, and is entitled to the peculiar protection of the law. Without submission tohis authority there is no security and anarchy reigns supreme.He must, of necessity, be the aggressor, and the law affords him special protection.In his capacity as an individual he may take advantage of the 'first law of nature,' and defend himself againstassault; as an officer he has an affirmative to perform, and in the performance thereof he should, so long as he keeps within due bounds, be protected. Sentimentalism should not go so far as to obstruct the due administration of law, and brute force should not be permitted toobstruct the wheels of justice." State v. Smith (1905), 127 Iowa534, 103 N. W. 944, 109 Am. St. 402, 70 L. R. A. 246, 4 Ann. Cas. 758.This language was used in a case where the officer arrested a misdemeanant and killed one who sought to rescue the prisoner and whoseact in so doing was by statute made a felony, but the reasoning quotedis none the less applicable here. A note concerning the right of an officer to kill a misdemeanant in order to effectuate an arrest accompanies the report of this case in 4 Ann. Cas. at page 760.

1.3 Tennessee v. Garner 1.3 Tennessee v. Garner

TENNESSEE v. GARNER et al.

No. 83-1035.

Argued October 30, 1984

Decided March 27, 1985*

*2White, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, Powell, and Stevens, JJ., joined. O’Connor, J., filed a dissenting opinion, in which Burger, C. J., and Rehnquist, J., joined, post, p. 22.

Henry L. Klein argued the cause for petitioners in No. 83-1070. With him on the briefs were Clifford D. Pierce, Jr., Charles V. Holmes, and Paul F. Goodman. W. J. Michael Cody, Attorney General of Tennessee, argued the cause for appellant in No. 83-1035. With him on the briefs were William M. Leech, Jr., former Attorney General, and Jerry L. Smith, Assistant Attorney General.

*3Steven L. Winter argued the cause for appellee-respondent Garner. With him on the brief was Walter L. Bailey, Jr.

Justice White

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.

I

At about 10:45 p. m. on October 3, 1974, Memphis Police Officers Elton Hymon and Leslie Wright were dispatched to answer a “prowler inside call.” Upon arriving at the scene they saw a woman standing on her porch and gesturing toward the adjacent house.1 She told them she had heard glass breaking and that “they” or “someone” was breaking in next door. While Wright radioed the dispatcher to say that they were on the scene, Hymon went behind the house. He heard a door slam and saw someone run across the backyard. The fleeing suspect, who was appellee-respondent’s decedent, Edward Garner, stopped at a 6-feet-high chain link fence at the edge of the yard. With the aid of a flashlight, Hymon was able to see Garner’s face and hands. He saw no sign of a weapon, and, though not certain, was “reasonably sure” and “figured” that Garner was unarmed. App. 41, 56; Record 219. He thought Garner was 17 or 18 years old and *4about 5' 5" or 5' 7" tall.2 While Garner was crouched at the base of the fence, Hymon called out “police, halt” and took a few steps toward him. Garner then began to climb over the fence. Convinced that if Garner made it over the fence he would elude capture,3 Hymon shot him. The bullet hit Garner in the back of the head. Garner was taken by ambulance to a hospital, where he died on the operating table. Ten dollars and a purse taken from the house were found on his body.4

In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to Police Department policy. The statute provides that “[i]f, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.” Tenn. Code Ann. *5§40-7-108 (1982).5 The Department policy was slightly more restrictive than the statute, but still allowed the use of deadly force in cases of burglary. App. 140-144. The incident was reviewed by the Memphis Police Firearm’s Review Board and presented to a grand jury. Neither took any action. Id., at 57.

Garner’s father then brought this action in the Federal District Court for the Western District of Tennessee, seeking damages under 42 U. S. C. § 1983 for asserted violations of Garner’s constitutional rights. The complaint alleged that the shooting violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. It named as defendants Officer Hymon, the Police Department, its Director, and the Mayor and city of Memphis. After a 3-day bench trial, the District Court entered judgment for all defendants. It dismissed the claims against the Mayor and the Director for lack of evidence. It then concluded that Hymon’s actions were authorized by the Tennessee statute, which in turn was constitutional. Hymon had employed the only reasonable and practicable means of preventing Garner’s escape. Garner had “recklessly and heedlessly attempted to vault over the fence to escape, thereby assuming the risk of being fired upon.” App. to Pet. for Cert. A10.

The Court of Appeals for the Sixth Circuit affirmed with regard to Hymon, finding that he had acted in good-faith reliance on the Tennessee statute and was therefore within the scope of his qualified immunity. 600 F. 2d 52 (1979). It remanded for reconsideration of the possible liability of the city, however, in light of Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), which had come down after the District Court’s decision. The District Court was *6directed to consider whether a city enjoyed a qualified immunity, whether the use of deadly force and hollow point bullets in these circumstances was constitutional, and whether any unconstitutional municipal conduct flowed from a “policy or custom” as required for liability under Monell. 600 F. 2d, at 54-55.

The District Court concluded that Monell did not affect its decision. While acknowledging some doubt as to the possible immunity of the city, it found that the statute, and Hymon’s actions, were constitutional. Given this conclusion, it declined to consider the “policy or custom” question. App. to Pet. for Cert. A37-A39.

The Court of Appeals reversed and remanded. 710 F. 2d 240 (1983). It reasoned that the killing of a fleeing suspect is a “seizure” under the Fourth Amendment,6 and is therefore constitutional only if “reasonable.” The Tennessee statute failed as applied to this case because it did not adequately limit the use of deadly force by distinguishing between felonies of different magnitudes — “the facts, as found, did not justify the use of deadly force under the Fourth Amendment.” Id., at 246. Officers cannot resort to deadly force unless they “have probable cause ... to believe that the suspect [has committed a felony and] poses a threat to the safety of the officers or a danger to the community if left at large.” Ibid.7

*7The State of Tennessee, which had intervened to defend the statute, see 28 U. S. C. § 2403(b), appealed to this Court. The city filed a petition for certiorari. We noted probable jurisdiction in the appeal and granted the petition. 465 U. S. 1098 (1984).

II

Whenever an officer restrains the freedom of a person to walk away, he has seized that person. United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975). While it is not always clear just when minimal police interference becomes a seizure, see United States v. Mendenhall, 446 U. S. 544 (1980), 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.

A

A police officer may arrest a person if he has probable cause to believe that person committed a crime. E. g., United States v. Watson, 423 U. S. 411 (1976). Petitioners and appellant argue that if this requirement is satisfied the Fourth Amendment has nothing to say about how that seizure is made. This submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of *8the manner in which a search or seizure is conducted. To determine the constitutionality of a seizure “[w]e must balance 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.” United States v. Place, 462 U. S. 696, 703 (1983); see Delaware v. Prouse, 440 U. S. 648, 654 (1979); United States v. Martinez-Fuerte, 428 U. S. 543, 555 (1976). We have described “the balancing of competing interests” as “the key principle of the Fourth Amendment.” Michigan v. Summers, 452 U. S. 692, 700, n. 12 (1981). See also Camara v. Municipal Court, 387 U. S. 523, 536-537 (1967). Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out. United States v. Ortiz, 422 U. S. 891, 895 (1975); Terry v. Ohio, 392 U. S. 1, 28-29 (1968).

Applying these principles to particular facts, the Court has held that governmental interests did not support a lengthy detention of luggage, United States v. Place, supra, an airport seizure not “carefully tailored to its underlying justification,” Florida v. Royer, 460 U. S. 491, 500 (1983) (plurality-opinion), surgery under general anesthesia to obtain evidence, Winston v. Lee, 470 U. S. 753 (1985), or detention for fingerprinting without probable cause, Davis v. Mississippi, 394 U. S. 721 (1969); Hayes v. Florida, 470 U. S. 811 (1985). On the other hand, under the same approach it has upheld the taking of fingernail scrapings from a suspect, Cupp v. Murphy, 412 U. S. 291 (1973), an unannounced entry into a home to prevent the destruction of evidence, Ker v. California, 374 U. S. 23 (1963), administrative housing inspections without probable cause to believe that a code violation will be found, Camara v. Municipal Court, supra, and a blood test of a drunken-driving suspect, Schmerber v. California, 384 U. S. 757 (1966). In each of these cases, the question was whether *9the totality of the circumstances justified a particular sort of search or seizure.

B

The same balancing process applied in the cases cited above demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched. The suspect’s fundamental interest in his own life need not be elaborated upon. The use of deadly force also frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment. Against these interests are ranged governmental interests in effective law enforcement.8 It is argued that overall violence will be reduced by encouraging the peaceful submission of suspects who know that they may be shot if they flee. Effectiveness in making arrests requires the resort to deadly *10force, or at least the meaningful threat thereof. “Being able to arrest such individuals is a condition precedent to the state’s entire system of law enforcement.” Brief for Petitioners 14.

Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects. Cf. Delaware v. Prouse, supra, at 659. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts,9 the presently available evidence does not support this thesis.10 The fact is that a majority of police de*11partments in this country have forbidden the use of deadly force against nonviolent suspects. See infra, at 18-19. If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. See Schumann v. McGinn, 307 Minn. 446, 472, 240 N. W. 2d 525, 540 (1976) (Rogosheske, J., dissenting in part). Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect’s interest in his own life.

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where 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. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

It is not, however, unconstitutional on its face. Where 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. Thus, 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 *12feasible, some warning has been given. As applied in such circumstances, the Tennessee statute would pass constitutional muster.

Ill

A

It is insisted that the Fourth Amendment must be construed in light of the common-law rule, which allowed the use of whatever force was necessary to effect the arrest of a fleeing felon, though not a misdemeanant. As stated in Hale’s posthumously published Pleas of the Crown:

“[I]f persons that are pursued by these officers for felony or the just suspicion thereof . . . shall not yield themselves to these officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is no felony.” 2 M. Hale, Historia Placitorum Coronae 85 (1736).

See also 4 W. Blackstone, Commentaries *289. Most American jurisdictions also imposed a flat prohibition against the use of deadly force to stop a fleeing misdemeanant, coupled with a general privilege to use such force to stop a fleeing felon. E. g., Holloway v. Moser, 193 N. C. 185, 136 S. E. 375 (1927); State v. Smith, 127 Iowa 534, 535, 103 N. W. 944, 945 (1905); Reneau v. State, 70 Tenn. 720 (1879); Brooks v. Commonwealth, 61 Pa. 352 (1869); Roberts v. State, 14 Mo. 138 (1851); see generally R. Perkins & R. Boyce, Criminal Law 1098-1102 (3d ed. 1982); Day, Shooting the Fleeing Felon: State of the Law, 14 Crim. L. Bull. 285, 286-287 (1978); Wilgus, Arrest Without a Warrant, 22 Mich. L. Rev. 798, 807-816 (1924). But see Storey v. State, 71 Ala. 329 (1882); State v. Bryant, 65 N. C. 327, 328 (1871); Caldwell v. State, 41 Tex. 86 (1874).

*13The State and city argue that because this was the prevailing rule at the time of the adoption of the Fourth Amendment and for some time thereafter, and is still in force in some States, use of deadly force against a fleeing felon must be “reasonable.” It is true that this Court has often looked to the common law in evaluating the reasonableness, for Fourth Amendment purposes, of police activity. See, e. g., United States v. Watson, 423 U. S. 411, 418-419 (1976); Gerstein v. Pugh, 420 U. S. 103, 111, 114 (1975); Carroll v. United States, 267 U. S. 132, 149-153 (1925). On the other hand, it “has not simply frozen into constitutional law those law enforcement practices that existed at the time of the Fourth Amendment’s passage.” Payton v. New York, 445 U. S. 573, 591, n. 33 (1980). Because of sweeping change in the legal and technological context, reliance on the common-law rule in this case would be a mistaken literalism that ignores the purposes of a historical inquiry.

B

It has been pointed out many times that the common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death.11 “Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or *14fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected.” American Law Institute, Model Penal Code §3.07, Comment 3, p. 56 (Tentative Draft No. 8, 1958) (hereinafter Model Penal Code Comment). Courts have also justified the common-law rule by emphasizing the relative dangerousness of felons. See, e. g., Schumann v. McGinn, 307 Minn., at 458, 240 N. W. 2d, at 533; Holloway v. Moser, supra, at 187, 136 S. E., at 376 (1927).

Neither of these justifications makes sense today. Almost all crimes formerly punishable by death no longer are or can be. See, e. g., Enmund v. Florida, 458 U. S. 782 (1982); Coker v. Georgia, 433 U. S. 584 (1977). And while in earlier times “the gulf between the felonies and the minor offences was broad and deep,” 2 Pollock & Maitland 467, n. 3; Carroll v. United States, supra, at 158, today the distinction is minor and often arbitrary. Many crimes classified as misdemeanors, or nonexistent, at common law are now felonies. Wilgus, 22 Mich. L. Rev., at 572-573. These changes have undermined the concept, which was questionable to begin with, that use of deadly force against a fleeing felon is merely a speedier execution of someone who has already forfeited his life. They have also made the assumption that a “felon” is more dangerous than a misdemeanant untenable. Indeed, numerous misdemeanors involve conduct more dangerous than many felonies.12

There is an additional reason why the common-law rule cannot be directly translated to the present day. The common-law rule developed at a time when weapons were rudimentary. Deadly force could be inflicted almost solely in a hand-to-hand struggle during which, necessarily, the safety *15of the arresting officer was at risk. Handguns were not carried by police officers until the latter half of the last century. L. Kennett & J. Anderson, The Gun in America 150-151 (1975). Only then did it become possible to use deadly force from a distance as a means of apprehension. As a practical matter, the use of deadly force under the standard articulation of the common-law rule has an altogether different meaning — and harsher consequences — now than in past centuries. See Wechsler & Michael, A Rationale for the Law of Homicide: I, 37 Colum. L. Rev. 701, 741 (1937).13

One other aspect of the common-law rule bears emphasis. It forbids the use of deadly force to apprehend a misde-meanant, condemning such action as disproportionately severe. See Holloway v. Moser, 193 N. C., at 187, 136 S. E., at 376; State v. Smith, 127 Iowa, at 535, 103 N. W., at 945. See generally Annot., 83 A. L. R. 3d 238 (1978).

In short, though the common-law pedigree of Tennessee’s rule is pure on its face, changes in the legal and technological context mean the rule is distorted almost beyond recognition when literally applied.

C

In evaluating the reasonableness of police procedures under the Fourth Amendment, we have also looked to pre*16vailing rules in individual jurisdictions. See, e. g., United States v. Watson, 423 U. S., at 421-422. The rules in the States are varied. See generally Comment, 18 Ga. L. Rev. 137, 140-144 (1983). Some 19 States have codified the common-law rule,14 though in two of these the courts have significantly limited the statute.15 Four States, though without a relevant statute, apparently retain the common-law rule.16 Two States have adopted the Model Penal Code’s *17provision verbatim.17 Eighteen others allow, in slightly varying language, the use of deadly force only if the suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is likely to endanger life or inflict serious physical injury if not arrested.18 Louisiana and Vermont, though without statutes or case law on point, do forbid the use of deadly force to prevent any but violent felonies.19 The remaining States either have no relevant statute or case law, or have positions that are unclear.20

*18It cannot be said that there is a constant or overwhelming trend away from the common-law rule. In recent years, some States have reviewed their laws and expressly rejected abandonment of the common-law rule.21 Nonetheless, the long-term movement has been away from the rule that deadly force may be used against any fleeing felon, and that remains the rule in less than half the States.

This trend is more evident and impressive when viewed in light of the policies adopted by the police departments themselves. Overwhelmingly, these are more restrictive than the common-law rule. C. Milton, J. Halleck, J. Lardner, & G. Abrecht, Police Use of Deadly Force 45-46 (1977). The Federal Bureau of Investigation and the New York City Police Department, for example, both forbid the use of firearms except when necessary to prevent death or grievous bodily harm. Id., at 40-41; App. 88. For accreditation by the Commission on Accreditation for Law Enforcement Agencies, a department must restrict the use of deadly force to situations where “the officer reasonably believes that the action is in defense of human life ... or in defense of any person in immediate danger of serious physical injury.” Commission on Accreditation for Law Enforcement Agencies, Inc., Standards for Law Enforcement Agencies 1-2 (1983) (italics deleted). A 1974 study reported that the police department regulations in a majority of the large cities of the United States allowed the firing of a weapon only when a *19felon presented a threat of death or serious bodily harm. Boston Police Department, Planning & Research Division, The Use of Deadly Force by Boston Police Personnel (1974), cited in Mattis v. Schnarr, 547 F. 2d 1007, 1016, n. 19 (CA8 1976), vacated as moot sub nom. Ashcroft v. Mattis, 431 U. S. 171 (1977). Overall, only 7.5% of departmental and municipal policies explicitly permit the use of deadly force against any felon; 86.8% explicitly do not. K. Matulia, A Balance of Forces: A Report of the International Association of Chiefs of Police 161 (1982) (table). See also Record 1108-1368 (written policies of 44 departments). See generally W. Geller & K. Karales, Split-Second Decisions 33-42 (1981); Brief for Police Foundation et al. as Amici Curiae. In light of the rules adopted by those who must actually administer them, the older and fading common-law view is a dubious indicium of the constitutionality of the Tennessee statute now before us.

D

Actual departmental policies are important for an additional reason. We would hesitate to declare a police practice of long standing “unreasonable” if doing so would severely hamper effective law enforcement. But the indications are to the contrary. There has been no suggestion that crime has worsened in any way in jurisdictions that have adopted, by legislation or departmental policy, rules similar to that announced today. Amici note that “[a]fter extensive research and consideration, [they] have concluded that laws permitting police officers to use deadly force to apprehend unarmed, non-violent fleeing felony suspects actually do not protect citizens or law enforcement officers, do not deter crime or alleviate problems caused by crime, and do not improve the crime-fighting ability of law enforcement agencies.” Id., at 11. The submission is that the obvious state interests in apprehension are not sufficiently served to warrant the use of lethal weapons against all fleeing felons. See supra, at 10-11, and n. 10.

*20Nor do we agree with petitioners and appellant that the rule we have adopted requires the police to make impossible, split-second evaluations of unknowable facts. See Brief for Petitioners 25; Brief for Appellant 11. We do not deny the practical difficulties of attempting to assess the suspect’s dangerousness. However, similarly difficult judgments must be made by the police in equally uncertain circumstances. See, e. g., Terry v. Ohio, 392 U. S., at 20, 27. Nor is there any indication that in States that allow the use of deadly force only against dangerous suspects, see nn. 15, 17-19, supra, the standard has been difficult to apply or has led to a rash of litigation involving inappropriate second-guessing of police officers’ split-second decisions. Moreover, the highly technical felony/misdemeanor distinction is equally, if not more, difficult to apply in the field. An officer is in no position to know, for example, the precise value of property stolen, or whether the crime was a first or second offense. Finally, as noted above, this claim must be viewed with suspicion in light of the similar self-imposed limitations of so many police departments.

IV

The District Court concluded that Hymon was justified in shooting Garner because state law allows, and the Federal Constitution does not forbid, the use of deadly force to prevent the escape of a fleeing felony suspect if no alternative means of apprehension is available. See App. to Pet. for Cert. A9-A11, A38. This conclusion made a determination of Garner’s apparent dangerousness unnecessary. The court did find, however, that Garner appeared to be unarmed, though Hymon could not be certain that was the case. Id., at A4, A23. See also App. 41, 56; Record 219. Restated in Fourth Amendment terms, this means Hymon had no articu-lable basis to think Garner was armed.

In reversing, the Court of Appeals accepted the District Court’s factual conclusions and held that “the facts, as found, did not justify the use of deadly force.” 710 F. 2d, at 246. *21We agree. Officer Hymon could not reasonably have believed that Garner — young, slight, and unarmed — posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. The District Court stated in passing that “[t]he facts of this case did not indicate to Officer Hymon that Garner was ‘non-danger ous.’ ” App. to Pet. for Cert. A34. This conclusion is not explained, and seems to be based solely on the fact that Garner had broken into a house at night. However, the fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others.

The dissent argues that the shooting was justified by the fact that Officer Hymon had probable cause to believe that Garner had committed a nighttime burglary. Post, at 29, 32. While we agree that burglary is a serious crime, we cannot agree that it is so dangerous as automatically to justify the use of deadly force. The FBI classifies burglary as a “property” rather than a “violent” crime. See Federal Bureau of Investigation, Uniform Crime Reports, Crime in the United States 1 (1984).22 Although the armed burglar would present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous. This case demonstrates as much. See also Solem v. Helm, 463 U. S. 277, 296-297, and nn. 22-23 (1983). In fact, the available statistics demonstrate that burglaries only rarely involve physical violence. During the 10-year period from 1973-1982, only 3.8% of all burglaries involved violent crime. Bureau of Justice Statistics, House*22hold Burglary 4 (1985).23 See also T. Reppetto, Residential Crime 17, 105 (1974); Conklin & Bittner, Burglary in a Suburb, 11 Criminology 208, 214 (1973).

V

We wish to make clear what our holding means in the context of this case. The complaint has been dismissed as to all the individual defendants. The State is a party only by virtue of 28 U. S. C. § 2403(b) and is not subject to liability. The possible liability of the remaining defendants — the Police Department and the city of Memphis — hinges on Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), and is left for remand. We hold that the statute is invalid insofar as it purported to give Hymon the authority to act as he did. As for the policy of the Police Department, the absence of any discussion of this issue by the courts below, and the uncertain state of the record, preclude any consideration of its validity.

The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion.

So ordered.

Justice O’Connor,

with whom The Chief Justice and Justice Rehnquist join, dissenting.

The Court today holds that the Fourth Amendment prohibits a police officer from using deadly force as a last resort to *23apprehend a criminal suspect who refuses to halt when fleeing the scene of a nighttime burglary. This conclusion rests on the majority’s balancing of the interests of the suspect and the public interest in effective law enforcement. Ante, at 8. Notwithstanding the venerable common-law rule authorizing the use of deadly force if necessary to apprehend a fleeing felon, and continued acceptance of this rule by nearly half the States, ante, at 14, 16-17, the majority concludes that Tennessee’s statute is unconstitutional inasmuch as it allows the use of such force to apprehend a burglary suspect who is not obviously armed or otherwise dangerous. Although the circumstances of this case are unquestionably tragic and unfortunate, our constitutional holdings must be sensitive both to the history of the Fourth Amendment and to the general implications of the Court’s reasoning. By disregarding the serious and dangerous nature of residential burglaries and the longstanding practice of many States, the Court effectively creates a Fourth Amendment right allowing a burglary suspect to flee unimpeded from a police officer who has probable cause to arrest, who has ordered the suspect to halt, and who has no means short of firing his weapon to prevent escape. I do not believe that the Fourth Amendment supports such a right, and I accordingly dissent.

I-H

The facts below warrant brief review because they highlight the difficult, split-second decisions police officers must make in these circumstances. Memphis Police Officers Elton Hymon and Leslie Wright responded to a late-night call that a burglary was in progress at a private residence. When the officers arrived at the scene, the callér said that “they” were breaking into the house next door. App. in No. 81-5605 (CA6), p. 207. The officers found the residence had been forcibly entered through a window and saw lights *24on inside the house. Officer Hymon testified that when he saw the broken window he realized “that something was wrong inside,” id., at 656, but that he could not determine whether anyone — either a burglar or a member of the household — was within the residence. Id., at 209. As Officer Hymon walked behind the house, he heard a door slam. He saw Edward Eugene Garner run away from the house through the dark and cluttered backyard. Garner crouched next to a 6-foot-high fence. Officer Hymon thought Garner was an adult and was unsure whether Garner was armed because Hymon “had no idea what was in the hand [that he could not see] or what he might have had on his person.” Id., at 658-659. In fact, Garner was 15 years old and unarmed. Hymon also did not know whether accomplices remained inside the house. Id., at 657. The officer identified himself as a police officer and ordered Garner to halt. Garner paused briefly and then sprang to the top of the fence. Believing that Garner would escape if he climbed over the fence, Hymon fired his revolver and mortally wounded the suspected burglar.

Appellee-respondent, the deceased’s father, filed a 42 U. S. C. § 1983 action in federal court against Hymon, the city of Memphis, and other defendants, for asserted violations of Garner’s constitutional rights. The District Court for the Western District of Tennessee held that Officer Hymon’s actions were justified by a Tennessee statute that authorizes a police officer to “use all the necessary means to effect the arrest,” if “after notice of the intention to arrest the defendant, he either flee or forcibly resist.” Tenn. Code Ann. §40-7-108 (1982). As construed by the Tennessee courts, this statute allows the use of deadly force only if a police officer has probable cause to believe that a person has committed a felony, the officer warns the person that he intends to arrest him, and the officer reasonably believes that no means less than such force will prevent the escape. See, e. g., Johnson v. State, 173 Tenn. 134, 114 S. W. 2d 819 *25(1938). The District Court held that the Tennessee statute is constitutional and that Hymon’s actions as authorized by that statute did not violate Garner’s constitutional rights. The Court of Appeals for the Sixth Circuit reversed on the grounds that the Tennessee statute “authorizing the killing of an unarmed, nonviolent fleeing felon by police in order to prevent escape” violates the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. 710 F. 2d 240, 244 (1983).

The Court affirms on the ground that application of the Tennessee statute to authorize Officer Hymon’s use of deadly force constituted an unreasonable seizure in violation of the Fourth Amendment. The precise issue before the Court deserves emphasis, because both the decision below and the majority obscure what must be decided in this case. The issue is not the constitutional validity of the Tennessee statute on its face or as applied to some hypothetical set of facts. Instead, the issue is whether the use of deadly force by Officer Hymon under the circumstances of this case violated Garner’s constitutional rights. Thus, the majority’s assertion that a police officer who has probable cause to seize a suspect “may not always do so by killing him,” ante, at 9, is unexceptionable but also of little relevance to the question presented here. The same is true of the rhetorically stirring statement that “[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.” Ante, at 11. The question we must address is whether the Constitution allows the use of such force to apprehend a suspect who resists arrest by attempting to flee the scene of a nighttime burglary of a residence.

II

For purposes of Fourth Amendment analysis, I agree with the Court that Officer Hymon “seized” Garner by shooting him. Whether that seizure was reasonable and therefore permitted by the Fourth Amendment requires a careful bal*26ancing of the important public interest in crime prevention and detection and the nature and quality of the intrusion upon legitimate interests of the individual. United States v. Place, 462 U. S. 696, 703 (1983). In striking this balance here, it is crucial to acknowledge that police use of deadly force to apprehend a fleeing criminal suspect falls within the “rubric of police conduct . . . necessarily [involving] swift action predicated upon the on-the-spot observations of the officer on the beat.” Terry v. Ohio, 392 U. S. 1, 20 (1968). The clarity of hindsight cannot provide the standard for judging the reasonableness of police decisions made in uncertain and often dangerous circumstances. Moreover, I am far more reluctant than is the Court to conclude that the Fourth Amendment proscribes a police practice that was accepted at the time of the adoption of the Bill of Rights and has continued to receive the support of many state legislatures. Although the Court has recognized that the requirements of the Fourth Amendment must respond to the reality of social and technological change, fidelity to the notion of constitutional— as opposed to purely judicial — limits on governmental action requires us to impose a heavy burden on those who claim that practices accepted when the Fourth Amendment was adopted are now constitutionally impermissible. See, e. g., United States v. Watson, 423 U. S. 411, 416-421 (1976); Carroll v. United States, 267 U. S. 132, 149-153 (1925). Cf. United States v. Villamonte-Marquez, 462 U. S. 579, 585 (1983) (noting “impressive historical pedigree” of statute challenged under Fourth Amendment).

The public interest involved in the use of deadly force as a last resort to apprehend a fleeing burglary suspect relates primarily to the serious nature of the crime. Household burglaries not only represent the illegal entry into a person’s home, but also “pos[e] real risk of serious harm to others.” Solem v. Helm, 463 U. S. 277, 315-316 (1983) (Burger, C. J., dissenting). According to recent Department of Justice statistics, “[t]hree-fifths of all rapes in the home, *27three-fifths of all home robberies, and about a third of home aggravated and simple assaults are committed by burglars.” Bureau of Justice Statistics Bulletin, Household Burglary 1 (January 1985). During the period 1973-1982, 2.8 million such violent crimes were committed in the course of burglaries. Ibid. Victims of a forcible intrusion into their home by a nighttime prowler will find little consolation in the majority’s confident assertion that “burglaries only rarely involve physical violence.” Ante, at 21. Moreover, even if a particular burglary, when viewed in retrospect, does not involve physical harm to others, the “harsh potentialities for violence” inherent in the forced entry into a home preclude characterization of the crime as “innocuous, inconsequential, minor, or ‘nonviolent.’” Solem v. Helm, supra, at 316 (Burger, C. J., dissenting). See also Restatement of Torts §131, Comment g (1934) (burglary is among felonies that normally cause or threaten death or serious bodily harm); R. Perkins & R. Boyce, Criminal Law 1110 (3d ed. 1982) (burglary is dangerous felony that creates unreasonable risk of great personal harm).

Because burglary is a serious and dangerous felony, the public interest in the prevention and detection of the crime is of compelling importance. Where a police officer has probable cause to arrest a suspected burglar, the use of deadly force as a last resort might well be the only means of apprehending the suspect. With respect to a particular burglary, subsequent investigation simply cannot represent a substitute for immediate apprehension of the criminal suspect at the scene. See President’s Commission on Law Enforcement and Administration of Justice, Task Force Report: The Challenge of Crime in a Free Society 97 (1967). Indeed, the Captain of the Memphis Police Department testified that in his city, if apprehension is not immediate, it is likely that the suspect will not be caught. App. in No. 81-5605 (CA6), p. 334. Although some law enforcement agencies may choose to assume the risk that a criminal will remain at large, the *28Tennessee statute reflects a legislative determination that the use of deadly force in prescribed circumstances will serve generally to protect the public. Such statutes assist the police in apprehending suspected perpetrators of serious crimes and provide notice that a lawful police order to stop and submit to arrest may not be ignored with impunity. See, e. g., Wiley v. Memphis Police Department, 548 F. 2d 1247, 1252-1253 (CA6), cert. denied, 434 U. S. 822 (1977); Jones v. Marshall, 528 F. 2d 132, 142 (CA2 1975).

The Court unconvincingly dismisses the general deterrence effects by stating that “the presently available evidence does not support [the] thesis” that the threat of force discourages escape and that “there is a substantial basis for doubting that the use of such force is an essential attribute to the arrest power in all felony cases.” Ante, at 10, 11. There is no question that the effectiveness of police use of deadly force is arguable and that many States or individual police departments have decided not to authorize it in circumstances similar to those presented here. But it should go without saying that the effectiveness or popularity of a particular police practice does not determine its constitutionality. Cf. Spaziano v. Florida, 468 U. S. 447, 464 (1984) (“The Eighth Amendment is not violated every time a State reaches a conclusion different from a majority of its sisters over how best to administer its criminal laws”). Moreover, the fact that police conduct pursuant to a state statute is challenged on constitutional grounds does not impose a burden on the State to produce social science statistics or to dispel any possible doubts about the necessity of the conduct. This observation, I believe, has particular force where the challenged practice both predates enactment of the Bill of Rights and continues to be accepted by a substantial number of the States.

Against the strong public interests justifying the conduct at issue here must be weighed the individual interests implicated in the use of deadly force by police officers. The *29majority declares that “[t]he suspect’s fundamental interest in his own life need not be elaborated upon.” Ante, at 9. This blithe assertion hardly provides an adequate substitute for the majority’s failure to acknowledge the distinctive manner in which the suspect’s interest in his life is even exposed to risk. For purposes of this case, we must recall that the police officer, in the course of investigating a nighttime burglary, had reasonable cause to arrest the suspect and ordered him to halt. The officer’s use of force resulted because the suspected burglar refused to heed this command and the officer reasonably believed that there was no means short of firing his weapon to apprehend the suspect. Without questioning the importance of a person’s interest in his life, I do not think this interest encompasses a right to flee unimpeded from the scene of a burglary. Cf. Payton v. New York, 445 U. S. 573, 617, n. 14 (1980) (White, J., dissenting) (“[T]he policeman’s hands should not be tied merely because of the possibility that the suspect will fail to cooperate with legitimate actions by law enforcement personnel”). The legitimate interests of the suspect in these circumstances are adequately accommodated by the Tennessee statute: to avoid the use of deadly force and the consequent risk to his life, the suspect need merely obey the valid order to halt.

A proper balancing of the interests involved suggests that use of deadly force as a last resort to apprehend a criminal suspect fleeing from the scene of a nighttime burglary is not unreasonable within the meaning of the Fourth Amendment. Admittedly, the events giving rise to this case are in retrospect deeply regrettable. No one can view the death of an unarmed and apparently nonviolent 15-year-old without sorrow, much less disapproval. Nonetheless, the reasonableness of Officer Hymon’s conduct for purposes of the Fourth Amendment cannot be evaluated by what later appears to have been a preferable course of police action. The officer pursued a suspect in the darkened backyard of a house that from all indications had just been burglarized. The *30police officer was not certain whether the suspect was alone or unarmed; nor did he know what had transpired inside the house. He ordered the suspect to halt, and when the suspect refused to obey and attempted to flee into the night, the officer fired his weapon to prevent escape. The reasonableness of this action for purposes of the Fourth Amendment is not determined by the unfortunate nature of this particular case; instead, the question is whether it is constitutionally impermissible for police officers, as a last resort, to shoot a burglary suspect fleeing the scene of the crime.

Because I reject the Fourth Amendment reasoning of the majority and the Court of Appeals, I briefly note that no other constitutional provision supports the decision below. In addition to his Fourth Amendment claim, appellee-respondent also alleged violations of due process, the Sixth Amendment right to trial by jury, and the Eighth Amendment proscription of cruel and unusual punishment. These arguments were rejected by the District Court and, except for the due process claim, not addressed by the Court of Appeals. With respect to due process, the Court of Appeals reasoned that statutes affecting the fundamental interest in life must be “narrowly drawn to express only the legitimate state interests at stake.” 710 F. 2d, at 245. The Court of Appeals concluded that a statute allowing police use of deadly force is narrowly drawn and therefore constitutional only if the use of such force is limited to situations in which the suspect poses an immediate threat to others. Id., at 246-247. Whatever the validity of Tennessee’s statute in other contexts, I cannot agree that its application in this case resulted in a deprivation “without due process of law.” Cf. Baker v. McCollan, 443 U. S. 137, 144-145 (1979). Nor do I believe that a criminal suspect who is shot while trying to avoid apprehension has a cognizable claim of a deprivation of his Sixth Amendment right to trial by jury. See Cunningham v. Ellington, 323 F. Supp. 1072, 1075-1076 (WD Tenn. 1971) (three-judge court). Finally, because there is no indication that the use *31of deadly force was intended to punish rather than to capture the suspect, there is no valid claim under the Eighth Amendment. See Bell v. Wolfish, 441 U. S. 520, 538-539 (1979). Accordingly, I conclude that the District Court properly entered judgment against appellee-respondent, and I would reverse the decision of the Court of Appeals.

III

Even if I agreed that the Fourth Amendment was violated under the circumstances of this case, I would be unable to join the Court’s opinion. The Court holds that deadly force may be used only 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.” Ante, at 11. The Court ignores the more general implications of its reasoning. Relying on the Fourth Amendment, the majority asserts that it is constitutionally unreasonable to use deadly force against fleeing criminal suspects who do not appear to pose a threat of serious physical harm to others. Ibid. By declining to limit its holding to the use of firearms, the Court unnecessarily implies that the Fourth Amendment constrains the use of any police practice that is potentially lethal, no matter how remote the risk. Cf. Los Angeles v. Lyons, 461 U. S. 95 (1983).

Although it is unclear from the language of the opinion, I assume that the majority intends the word “use” to include only those circumstances in which the suspect is actually apprehended. Absent apprehension of the suspect, there is no “seizure” for Fourth Amendment purposes. I doubt that the Court intends to allow criminal suspects who successfully escape to return later with §1983 claims against officers who used, albeit unsuccessfully, deadly force in their futile attempt to capture the fleeing suspect. The Court’s opinion, despite its broad language, actually decides only that the *32shooting of a fleeing burglary suspect who was in fact neither armed nor dangerous can support a § 1983 action.

The Court’s silence on critical factors in the decision to use deadly force simply invites second-guessing of difficult police decisions that must be made quickly in the most trying of circumstances. Cf. Payton v. New York, 445 U. S., at 619 (White, J., dissenting). Police are given no guidance for determining which objects, among an array of potentially lethal weapons ranging from guns to knives to baseball bats to rope, will justify the use of deadly force. The Court also declines to outline the additional factors necessary to provide “probable cause” for believing that a suspect “poses a significant threat of death or serious physical injury,” ante, at 3, when the officer has probable cause to arrest and the suspect refuses to obey an order to halt. But even if it were appropriate in this case to limit the use of deadly force to that ambiguous class of suspects, I believe the class should include nighttime residential burglars who resist arrest by attempting to flee the scene of the crime. We can expect an escalating volume of litigation as the lower courts struggle to determine if a police officer’s split-second decision to shoot was justified by the danger posed by a particular object and other facts related to the crime. Thus, the majority opinion portends a burgeoning area of Fourth Amendment doctrine concerning the circumstances in which police officers can reasonably employ deadly force.

IV

The Court’s opinion sweeps broadly to adopt an entirely new standard for the constitutionality of the use of deadly force to apprehend fleeing felons. Thus, the Court “lightly brushe[s] aside,” Payton v. New York, supra, at 600, a longstanding police practice that predates the Fourth Amendment and continues to receive the approval of nearly half of the state legislatures. I cannot accept the majority’s creation of a constitutional right to flight for burglary sus*33pects seeking to avoid capture at the scene of the crime. Whatever the constitutional limits on police use of deadly force in order to apprehend a fleeing felon, I do not believe they are exceeded in a case in which a police officer has probable cause to arrest a suspect at the scene of a residential burglary, orders the suspect to halt, and then fires his weapon as a last resort to prevent the suspect’s escape into the night. I respectfully dissent.