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The law recognizes a privilege for an actor to employ force to prevent crime, to effect a lawful arrest, to prevent an escape from custody, under circumstances where, without the justification of such a privilege, the actor might be charged with assault or even homicide. This category of justifications, like others, arises in cases where the law accepts that a harm is done, or may be done, by the conduct of the actor, but finds that the harm is outweighed by the need to further a greater societal interest. The availability of the justification defenses arising out of law enforcement revolves around the questions whether the actor’s use of force is ‘‘necessary to protect or further the interest at stake,’’ and whether it causes ‘‘only a harm that is proportional, or reasonable in relation to the harm threatened or the interest to be furthered’’ (Robinson, p. 217). These considerations are basic in analyzing justifications for actions taken in pursuance of law enforcement. The justifications for actions by law enforcement personnel discussed below are applicable to police officers, peace officers, and on occasion to military personnel when maintaining order; the scope of the coverage may vary from place to place by statute.
Arrest and Attendant Uses of Force
An arrest, which is the act of taking a person into custody for the purposes of the administration of law, may be an assault and battery or a false imprisonment in the absence of a legally recognized basis for the arrest (Restatement of Torts, 2d ed.). The law of arrest is governed by the common law, as modified by statute and in the United States by the Fourth Amendment to the U.S. Constitution, which forbids ‘‘unreasonable searches and seizures’’ by government officials, including seizures of the person as in the case of arrest. The Fourth Amendment also provides that a warrant, including a warrant of arrest, may nor be issued by a judge except upon ‘‘probable cause.’’ The latter is defined as facts and circumstances sufficient to cause a person of ‘‘reasonable caution’’ to believe that an offense has been committed and that the person to be arrested committed it (U.S. v Carroll, 267 U.S. 132, 162 (1925)). In general, an arrest by a public official without probable cause will be considered an unreasonable seizure of the person under the Fourth Amendment.
At common law, a law enforcement officer may make an arrest pursuant to a lawful warrant for any offense; most arrests, as a practical matter, if they are not made in the home, are made without a warrant. A law enforcement officer may lawfully make an arrest without a warrant for any crime, whether felony or misdemeanor, committed in his presence. A law enforcement officer may lawfully make an arrest without a warrant for a felony when he has probable cause to believe that a felony has been committed and that the person to be arrested committed it. Statutes commonly expand the powers of officers, to permit them to make arrests, for example, if they have probable cause to believe that a crime less than a felony has been committed and that the person arrested is the culprit (LaFave and Scott, sec. 5.10; N.Y. Criminal Procedure Law, sec. 140.10).
At common law, a private person may lawfully make an arrest for any felony committed in his presence, or for a misdemeanor that constitutes a breach of the peace (Restatement of Torts, 2d ed., sec 119; Dressler, p. 251). A private person can also make an arrest for a felony, even if not committed in his presence, if the felony has been committed and he has probable cause to believe that the person arrested committed it. While Fourth Amendment standards do nor limit the law of arrest by private persons, since the amendment is applicable only to government actions, the law of arrest is sometimes altered by statute to expand or limit powers of arrest by private persons. Thus, for example, the powers may be expanded to permit an arrest for any crime committed in the presence of the person (LaFave and Scott, sec. 5.10). The powers to arrest for a felony not committed in the presence of the citizen may be limited to require that the suspect actually have committed the crime (N.Y. Criminal Procedure Law, sec. 140.30).
In addition, the U.S. Supreme Court has held that a person may be detained temporarily by law enforcement officers for investigation, under circumstances that do not rise to the level of an arrest, if officers have ‘‘a particularized and objective basis for suspecting the particular person stopped. . . .’’ (U.S. v. Cortez, 449 U.S. 411, 417 (1981)).
Use of Force in Connection with Arrest or Detention
A law enforcement officer may use as much force as he reasonably believes necessary, short of deadly force, to effect a lawful arrest. In the interests of showing that the force is necessary, the officer must state his purpose to arrest the person, unless he believes that the purpose is already known or cannot be made known, for example in the case where making the purpose known would frustrate the arrest (Model Penal Code, sec. 3.07; Restatement of Torts, 2d ed., sec. 128). An officer may also use necessary force to prevent a person from escaping from custody (LaFave and Scott, sec. 5.10). A private person, like a law enforcement officer, may use force that he reasonably believes to be necessary short of deadly force to effect a lawful arrest, and must state his purpose under similar circumstances; citizen’s arrests of this type are quite unusual.
If an officer or other person uses more force to effect the arrest than he can reasonably believe necessary or proportional in the circumstances, the justification lapses, and the arresting person may be liable for criminal charges or for damages in tort for injuries due to ‘‘so much of the force as is excessive’’ (Restatement of Torts, 2d ed., secs. 132–133). Such cases are the ones that typically give rise to charges of ‘‘police brutality.’’ In addition, if the actor is a public official the use of excessive force will be an ‘‘unreasonable seizure’’ of the person within the meaning of the Fourth Amendment to the U.S. Constitution. The test whether the force was excessive is an objective one, although, as the U.S. Supreme Court stated in the leading case, ‘‘[t]he calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation’’ (Graham v. Connor, 490 U.S. 386, 396–397 (1989)).
Police may also use reasonable force to effect a temporary stop, short of an arrest. In connection with such a stop, police are permitted to pat down the suspect for their own safety, to determine whether he has a weapon. They may also use force to detain the suspect; for example, police sometimes draw their weapons to ensure that there is no resistance, which has been held permissible at least where a serious crime is suspected (People v. Robinson, 68 NY2d 843 (1986)).
International law standards for the lawful use of force are derived directly from the principles of necessity and proportionality that underlie the justification. The United Nations Code of Conduct for Law Enforcement Officials (UN Code of Conduct) provides in Article 3, ‘‘Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.’’
Use of Deadly Force in Connection with an Arrest
As noted above, an officer may use as much force as is reasonably necessary, short of deadly force, to retain custody of a suspect. It follows that if the suspect resists, the officer may increase the force to counter the resistance. The officer has no duty to retreat as the force escalates, and if the force should ratchet up to the point where the suspect threatens the officer with death or serious bodily harm, the officer may use deadly force to retain custody (LaFave and Scott, sec. 5.10). ‘‘Deadly force’’ is defined as ‘‘force reasonably capable of causing death or great bodily harm’’ (Geller and Scott, p. 23); while it obviously includes the discharge of firearms, it may also include the use of chokeholds or even automobiles under some circumstances. Pointing a firearm without firing it or making any attempt to fire it is not in itself the use of deadly force.
The standard for the use of deadly force changes when the officer is pursuing a suspect but has not yet been able to arrest him. All the standards stated above are applicable to the use of deadly force to effect an arrest; the officer must reasonably believe that the use of such force is necessary. In addition, however, there is a further limitation under the Fourth Amendment upon the power of a law enforcement officer to use deadly force to effect an arrest. The U.S. Supreme Court stated the standard in 1985: ‘‘Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent an escape, and if, where feasible, some warning has been given’’ (Tennessee v. Garner, 471 U.S. 1, 11–12 (1985)). Garner concerned the shooting of a suspect fleeing from a burglary who was not believed to pose any physical threat; in that case the Court held that the shooting was an unreasonable seizure of the person. The Garner standard is a substantial modification of the common law, which permitted an officer to shoot a fleeing suspect whom he had probable cause to believe had committed a felony, whether the felony was physically dangerous or not. The judgment that underlies the Garner standard is that while shooting a fleeing suspect may sometimes appear necessary to effect the arrest, the use of deadly force is disproportionate in cases where the suspect does not pose a physical danger to the officer or the community.
Even in a case where the use of deadly force is justified, the force used may be found to be excessive, for example, when it is not found to be necessary under the circumstances. In Burton v. Waller, 502 F.2d 1261 (5th Cir. 1974) cert den. U.S. 964, reh. den. 421 U.S. 39, the use of massive firepower in response to a suspected shot by a sniper in a civil disturbance was held to be the excessive use of force.
The standard for the use of deadly force to stop a suspect under international law, also squarely based in the basic principles of necessity and proportionality, is somewhat more restrictive than the standard under the Fourth Amendment. The United Nations Basic Principles for the Use of Force and Firearms by Law Enforcement Officials (UN Basic Principles), which are widely adopted by police throughout the world, provide in Article 9 that: ‘‘Law enforcement officials shall not use firearms against persons except in self-defense or defense of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life, to arrest a person presenting such a danger and resisting their authority, or to prevent his or her escape, and only when less extreme means are insufficient to achieve these objectives. In any event, intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life.’’ In the Case of McCann and others v. UK, ECHR vol. 324 1995)), which concerned a response to a suspected terrorist attack, the European Court of Human Rights, applying the principle of necessity, held that it is not enough to justify every use of deadly force that the actors reasonably believe that the attackers present a threat to life; in addition, the official operation in response must be organized in such a way as to minimize the threat to life.
The standards for the protection of bystanders who may be injured by the lawful use of deadly force vary. At common law, if the action in connection with the arrest was justified, then an injury consequent upon that action would also be justified, and would not be a crime or even a tort (Restatement of Torts, 2d ed., sec. 75) in the absence of negligence on the part of the actor. Although the Model Penal Code proposed the more restrictive standard that the actor may not use deadly force unless he ‘‘believes that the force employed creates no substantial risk of injury to innocent persons’’ (Model Penal Code, sec. 3.07 (2)(b)(iii)), the standard has not been adopted. It is not clear how such a standard could be administered as a matter of the criminal law; if the force used were truly necessary and proportional, then it would seem that an element of criminality is missing from the act.
The standards for the use of deadly force in an arrest by a private person are generally more restrictive than the standards for law enforcement officers. A private person uses deadly force at his peril; he is not privileged to rely upon ‘‘probable cause.’’ By the general rule under contemporary law, he may use deadly force only to arrest for a felony dangerous to life when the person arrested has committed the felony (Dressler, sec. 21.03 B2b; Restatement of Torts, 2d ed., sec. 143). On the other hand, since the Fourth Amendment does not restrict actions by private persons, it seems permissible for the states to retain the common law rule that permitted a person to use deadly force to arrest for any felony; the Michigan courts have done so (People v. Couch, 436 Mich. 414 (1990)). Nevertheless, this seems to be an undesirable standard, giving justification for disproportionate force when the crime is not a dangerous felony and unnecessarily encouraging vigilantism.
Use of Force for The Prevention of Crime
At common law, reasonable force short of deadly force may be used by law enforcement officers or private persons to prevent a felony or a misdemeanor that involves a breach of the peace. Deadly force may be used to prevent a felony that threatens death or serious bodily harm, at least if the felony cannot otherwise be prevented (Restatement of Torts, 2d ed., secs. 141–143). The standards for the use of force to prevent crime overlap with those concerning self-defense and the defense of another, as well as the standards concerning the use of force for arrest. Thus, if the actor is the victim of the crime, or is aiding a victim, then standards concerning self-defense will support his actions; similarly the prevention of the crime will often entail an arrest of the offender.
By the standards established in the Garner case, discussed above, it appears that the standards for the use of deadly force by law enforcement officers, limiting their discretion to use deadly force in the prevention of crime to cases of life-threatening felonies, are required by the Fourth Amendment; to use deadly force to prevent a felony that does not threaten life would be disproportionate to the crime and an unreasonable seizure of the person. The powers of private persons to use deadly force, however, not being controlled by the Fourth Amendment, may be more expansive than the powers of law enforcement officers. The common law permits an actor in his home, after giving a warning, to repel an intruder with deadly force, and some states, including Louisiana and New York, retain versions of this rule; New York, for example, permits the use of deadly force to terminate a burglary (N.Y. Penal Law, sec. 35.20(2)). The Model Penal Code permits the use of deadly force to prevent dispossession from the dwelling when the attempted dispossession is not under a claim of right (Model Penal Code, sec. 3.06 (3)(d)(i)). Some states have taken the contrary position that rules similar to the common law rule are too permissive, because they would authorize the use of deadly force under circumstances where it may be disproportionate to the crime, and have permitted the use of deadly force only when the intrusion is reasonably believed to threaten life (LaFave and Scott, sec. 5.9).
Prevention of Riot
At common law, deadly force could be used to suppress a riot, after an order to disperse and a warning was given. The Model Penal Code retains the rule (Model Penal Code, sec.
3.07(5)(a)(ii)(2). The better version of the rule is that deadly force may be used only when the riot threatens death or serious bodily harm (Restatement of Torts, 2d ed., sec. 142). The latter rule would limit the use of deadly force to situations proportionate to the threat and comports with the standard in Garner. Although reported cases concerning deadly force in response to riots are rare, one leading case in the United States has adopted the rule from the Restatement of Torts (Burton v. Waller). The cited case arose out of the shooting of students by law enforcement personnel during a riot at a college in Mississippi. The court accepted the standard that deadly force may be used against a riot that threatens life, but held also that the evidence showed that excessive force was used.
International law applies the principles of necessity and proportionality to the suppression of riots as it does to other actions by law enforcement personnel. Article 14 of the UN Basic Principles provides: ‘‘In the dispersal of violent assemblies, law enforcement officials may use firearms only when less dangerous means are not practicable and only to the minimum extent necessary.’’
Prevention of Escape
At common law, law enforcement officers were justified in using any necessary force, including deadly force, to prevent an escape from prison. The Model Penal Code adopted this justification in section 3.07 (3) even though in another section (3.07(2)) the Code limited the use of deadly force in the arrest of a fleeing felon by law enforcement officers to cases where the suspect was believed to pose a threat to human life; the distinction was justified on the theory that there is a special public interest in preventing escape by persons in prison. Most states also continue the common law rule, at least when a warning is given before shooting (LaFave and Scott, sec. 5.10). International law takes the position that the use of deadly force against a prisoner escaping is not justified, because deadly force is disproportionate, unless the prisoner presents a ‘‘threat to life’’ (UN Basic Principles, Article 9, 16). Some authorities in the United States take a similar position, but the legal situation remains unclear. The Fourth Amendment may not apply, because actions against persons in prison, who are not at liberty, may not be ‘‘seizures’’ of the person; thus the question would be instead whether shooting a prisoner who is not reasonably believed to be a threat to life is ‘‘cruel and unusual punishment’’ under the Eighth Amendment. This question is unresolved at present as a matter of constitutional law. From the point of view of proportionality, the better rule would be that deadly force may be used only against a prisoner who is believed to present a threat of death or serious bodily injury, when other means of preventing the escape (such as a warning) have failed (Mushlin, vol. 1, p. 58).
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