Golden Gate University Law Review


Robert M. Myers


Two events in September 1995 gave the public a brief glimpse of law enforcement officers asserting the Fifth Amendment privilege. In the "trial of the century," Los Angeles Police Department Detective Mark Fuhrman asserted the privilege during the O.J. Simpson murder trial in response to questions concerning whether he planted evidence or provided truthful testimony. A week later, an FBI agent asserted the privilege in response to a Senate committee's inquiry concerning the shootout at Ruby Ridge, Idaho. These highly publicized exercises of the privilege are rare. For the most part, invocations of the privilege by the police are a regular occurrence outside the scope of public scrutiny. At this real-world crossing, two basic tenets of constitutional democracy intersect - control of government and preservation of liberty. On the one hand, the people need to regulate the state, especially when it is empowered to take human life. On the other hand, civil liberties must be safeguarded, even when those who claim them stand in the shoes of the state. At this juncture, however, we seem to return to the Twilight Zone. For, it may be asked, how can we both control the state and, at the same time, grant its agents constitutional protection? Before we get to this question, it is necessary to first understand just how much and what kind of official latitude we allow the state when it comes to the sanctioned use of deadly force by police officials. Having done that, we can then consider the character and scope of certain constitutional claims sometimes invoked by police officers in this context. This latter consideration - the central focus of this article - points to a peculiar phenomenon, namely, the specter of government acting as a powerful deputy authorized to use lethal force and as a powerless individual in need of constitutional safeguards. Typically, we do not think of the government wearing both hats. Yet, when it does, the result is often perplexing. Having thus introduced this perplexity, it is now appropriate to return to a preliminary but nevertheless significant matter - official use of deadly force in America.