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TOP COURT LETS POLICY ON ESCAPEES STAND

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The Supreme Court Monday refused to review a ruling that lets police shoot people who try to escape while awaiting criminal trials, even if they are unarmed and pose no apparent threat to the officers or the public.

The court, without comment, turned away arguments in a Houston area case that the use of such deadly force violates the constitutional rights of "pretrial detainees" who are shot while trying to escape.The justices in 1985 struck down a Tennessee "fleeing felon" law by ruling that police may not shoot unarmed, fleeing criminal suspects who pose no immediate danger.

But a federal appeals court ruled in the Houston case that the 1985 ruling doesn't apply once a criminal suspect has been arrested - even if that person has not yet stood trial.

Roland Brothers Jr. was arrested and jailed in Jersey Village, Texas, for auto theft in November 1988. Because there were outstanding warrants for his arrest on other theft charges, Jersey Village police turned him over to Harris County deputy sheriffs.

Brothers, who had escaped from county deputies twice before, was handcuffed and placed in leg restraints while driven to the county jail.

But at the jail, Brothers fled from the car while the two deputies he was with left it temporarily. He somehow had removed the hand-cuffs and leg restraints. The deputies shouted at him to stop, but he did not. They then drew their guns and fired 12 times.

Brothers, hit by three bullets, was killed. His family sued the Harris County sheriff and the county, attacking as unconstitutional the policy that allows deputies to shoot in such circumstances.

A federal judge threw out the lawsuit, and the 5th U.S. Circuit Court of Appeals upheld the dismissal by a 2-1 vote last August.

The appeals court noted that the Supreme Court's 1985 ruling - based on a suspect's protection against unreasonable seizure - involved a burglary suspect shot while fleeing from a crime scene.

But Brothers was in custody at the time of his escape attempt, the appeals court said. Having been seized once, he was no longer protected against unreasonable police seizure, it said.

The 5th Circuit court, in a ruling that is binding throughout Texas, Louisiana and Mississippi, said the deputies' shooting of Brothers could be unconstitutional only if it violated his due-process rights.

To do that, the policy would have to be designed to inflict unnecessary and wanton pain and suffering. "The county policy allows deadly force only when immediately necessary to prevent escape," the appeals court said. "The deputies did not act maliciously or sadistically, or in an attempt to inflict punishment."

In the appeal acted on Monday, lawyers for Brothers' family said that under county's deadly-force policy "two deputy sheriffs imposed the death penalty on an unarmed suspect in their custody, not yet convicted of any crime simply because he tried to run away."