NCJ Number
49455
Journal
CRIMIMAL LAW BULLETIN Volume: 14 Issue: 4 Dated: (JULY-AUGUST 1978) Pages: 285-310
Date Published
1978
Length
26 pages
Annotation
THE ARTICLE EXAMINES THE QUESTION OF WHEN A POLICE OFFICER OR PRIVATE CITIZEN IS PRIVILEGED TO USE DEADLY FORCE TO STOP A SUSPECTED CRIMINAL WHO MIGHT OTHERWISE ESCAPE.
Abstract
UNDER TRADITIONAL RULE, FATAL SHOOTINGS BY POLICE OFFICERS OF SUSPECTED FELONS WHO ARE FLEEING FROM ARREST GENERALLY HAVE BEEN HELD PRIVILEGED AND THUS NOT SUBJECT TO LEGAL SANCTION. THIS PRACTICE, HOWEVER, HAS BEEN COMING UNDER INCREASING ATTACK. THE AREA OF CONTROVERSY IS A VERY NARROW ONE. THE APPROPRIATENESS OF THE USE OF DEADLY FORCE WHEN THE ARRESTER ACTS IN SELF-DEFENSE OR IN DEFENSE OF ANOTHER FROM A DEADLY ATTACK BY THE ARRESTEE, OR WHEN THE ARRESTER MUST USE DEADLY FORCE TO STOP AN ARRESTEE WHO IS ENDANGERING LIFE IN AN ATTEMPT TO ESCAPE, IS UNQUESTIONED. THE CONTROVERSY ARISES IN SITUATIONS IN WHICH THE ARRESTEE OFFERS NO DIRECT THREAT TO ANYONE, BUT SIMPLY IS TRYING TO ESCAPE. A LINE MUST BE DRAWN BETWEEN SOCIETY'S INTEREST IN PRESERVING HUMAN LIFE AND IN RESTRICTING THE USE OF VIOLENCE BY ITS LAW ENFORCEMENT OFFICIALS ON THE ONE HAND AND ITS INTEREST IN STOPPING THOSE WHO ATTEMPT TO FLEE FROM JUSTICE ON THE OTHER. IN CONSIDERING THE PROBLEM, THE RULE WHICH HAS DEVELOPED AS COMMON LAW IS FIRST EXAMINED. THE RULE IS BASICALLY THAT AN ARRESTER IS PRIVILEGED IN THE USE OF DEADLY FORCE WHEN NECESSARY TO SECURE THE ARREST OF A FELON, BUT NEVER A MISDEMEANANT. IN ADDITION, THE USE OF SUCH FORCE MUST BE ABSOLUTELY NECESSARY, BASED ON A NUMBER OF FACTORS. AN AREA OF UNCERTAINTY EXISTS IN MANY JURISDICTIONS ABOUT WHETHER THE ARRESTER MAY USE DEADLY FORCE ONLY IF THE ARRESTEE IS A FELON IN FACT OR WHETHER THE ARRESTER MAY ALSO USE IT WHEN THERE IS REASON TO BELIEVE THAT A FELONY HAS BEEN COMMITTED. THE ARTICLE CONSIDERS WHETHER THE COMMON LAW RULE SHOULD BE RETAINED TODAY AND LOOKS AT POSSIBLE ALTERNATIVES TO THE RULE. THE AUTHOR CONCLUDES THAT, BECAUSE OF THE CHANGING NATURE OF FELONIES AND CRIMINAL SANCTIONS, THERE IS A PRESSING NEED TO REDRAW THE LINE WHICH DETERMINES WHEN SOCIETY WILL AND WILL NOT ALLOW THE USE OF DEADLY FORCE. SOME OF THE ALTERNATIVES EXAMINED ARE LIMITING THE PRIVILEGE OF USING DEADLY FORCE SOLELY FOR THE PURPOSE OF AN ARREST TO THOSE FELONIES WHICH ENDANGER LIFE, LIMITING IT TO FELONIES THAT INVOLVE THE USE OR THREATENED USE OF DEADLY FORCE, AND COMPLETELY DISALLOWING THE USE OF DEADLY FORCE SOLELY TO EFFECT AN ARREST. FINALLY, THE RESPONSE OF THE COURTS TO CALLS FOR CHANGE AND SOME MODIFICATIONS IN THE COMMON LAW RULE RESULTING FROM THEM ARE EXPLORED. SPECIFIC CASES ARE CITED IN NOTES THROUGHOUT THE ARTICLE. (VDA) COMMON LAW RULE WHICH ARE RESULTING FROM THEM ARE EXPLORED. SPECIFIC CASES ARE CITED IN NOTES THROUGOUT THE ARTICLE. (VDA)