While working in the Reagan administration's Justice Department in the mid-1980s, Samuel Alito argued that a police officer was justified in shooting an unarmed 15-year-old trying to avoid arrest after a burglary.
The opinion of President Bush's nominee to replace retiring Justice Sandra Day O'Connor, outlined in a 1984 memorandum, could provide insight into his views on criminal procedure and Fourth Amendment rights, which will be the subject of debate during his Senate confirmation hearings next month.
The memo was written by Alito, then a lawyer in the solicitor general's office — which argues the U.S. government's side in Supreme Court cases — when the administration was weighing whether to get involved in a case called Tennessee v. Garner that was then pending before the Supreme Court.
The case grew out of a police shooting of a burglary suspect in Memphis in October 1974. Memphis police officer Elton Hymon saw 15-year-old Edward Garner running from a house and shouted for him to halt. When Garner started to climb a chain-link fence in the backyard, Hymon shot him in the back of the head.
Garner, who was carrying $10 and a purse taken from the house, died at the hospital.
His father sued police and the city, arguing the shooting violated the teenager's Fourth Amendment right against unreasonable search and seizure. The city countered that police were acting under state law and a department policy allowing the use of deadly force in burglary cases.
Asked to prepare a memo on whether the Reagan administration should intervene and how the case should be argued, Alito wrote, "The shooting can be justified as reasonable within the meaning of the Fourth Amendment."
The young lawyer contended that "a fleeing suspect in effect states to the police: 'Kill me or let me escape the legal process, at least for now."'
He added, "If every suspect could evade arrest by putting the state to this choice, societal order would quickly break down."
Alito argued against overturning the Tennessee law, but recommended that the administration stay out of the case.
The Supreme Court ruled 6-3 in early 1985 that the Tennessee statute and department policy violated Fourth Amendment protections, setting a precedent forbidding the use of deadly force by police except in certain circumstances. Justice Byron White wrote the majority's decision.
Three justices, including Sandra Day O'Connor and the late Chief Justice William Rehnquist, dissented, arguing the officer had to shoot in order to prevent Garner's escape.
"There's a kind of robotic logic at work in his memorandum that runs roughshod over important distinctions between nonviolent and violent felons," said Jamin Raskin, a constitutional law professor at American University.
As an federal appeals court judge in 2002, Alito cited the Garner decision in a ruling upholding a plaintiff's right to sue a Pennsylvania police officer in a fatal shooting. At the same time, Alito said, the court was not saying that the suspect's constitutional rights had been violated.