NCJ Number
76909
Journal
HARVARD CIVIL RIGHTS - CIVIL LIBERTIES LAW REVIEW Volume: 11 Issue: 1 Dated: (Winter 1976) Pages: 361-389
Date Published
1976
Length
29 pages
Annotation
This comment explores the constitutional cases which underlie the objection to the common law rules, State statutes, and police department practices which justify the use of deadly force to arrest nonviolent felony suspects.
Abstract
In common law, deadly force could be used against any felony suspect if necessary to effect the suspect's arrest. Thirty-seven States have justification statutes which limit the use of deadly force by police officers to effect arrest. Twenty-four State statutes codify the common law by providing that deadly force may be used to arrest any felony suspect. Seven States have recently adopted the Model Penal Code approach, which prohibits the use of deadly force to arrest nonviolent felony offenders. The philosophy of the code is to ignore the technical classification of a crime as a felony or misdemeanor and to focus instead on a balance of interests: the need to apprehend suspects, the safety of arresting officers, and the value of human life. Many police departments across the country have limited their officers' use of deadly force by regulations which are more strict than State laws. Nevertheless, Federal courts faced with constitutional challenges to State laws and practices allowing deadly force against such suspects have upheld those laws, as in Wolfer v. Thaler (1975) and Wilney v. Memphis Police Department (1975). Cases now on appeal, such as Mattis v. Schnarr (1975), offer an opportunity for reexamination of the constitutionality of rules authorizing deadly force to effect arrest. Constitutional challenges to the use of deadly force to arrest nonviolent felony suspects have centered on the 8th and 4th amendments and the equal protection and due process clauses of the 14th amendment. Although a substantial constitutional attack can be made under these various amendments and related theories, all fail to adequately address the issue. It is therefore suggested that a judicial decision, holding that the use of deadly force to arrest nonviolent felony suspects is unconstitutional, would make the complex of deadly force rules more congruent by removing the last vestige of a State's authorization of the use of deadly force to protect property. The comment includes an index and 130 footnotes.