§ 21.03 FORCE USED IN LAW ENFORCEMENT: COMMON AND STATUTORY LAW

• Jurisdiction: United States

§ 21.03. Force Used in Law Enforcement: Common and Statutory Law

[A] Nondeadly Force

A police officer or private citizen may use force in law enforcement, either to prevent the commission or consummation of a crime, or to make an arrest after the offense has been committed. Criminal prosecutions for use of nondeadly force in such circumstances are rare.

The common law rule regarding use of nondeadly force in law enforcement may be summarized simply: A police officer or private person is justified in using nondeadly force upon another if she reasonably believes that: (1) such other person is committing or has committed a felony, or a misdemeanor amounting to a breach of the peace; and (2) the force used is necessary to prevent commission of the offense, or to effectuate an arrest, i.e., to make the arrest or to prevent the arrestee's escape.¹³

[B] Deadly Force

Deadly force may never be used to prevent commission of a misdemeanor offense, or to effectuate an arrest of a misdemeanant.¹⁴ The following discussion relates to use of deadly force in felony cases.

[1] Crime Prevention

Deadly force is permitted to prevent commission of felonies. A split of authority exists regarding the scope of this right.

[a] Broad Defense: Minority Rule

The broad, largely outdated, version of the crime prevention defense provides that a police officer or private person is justified in using deadly force upon another if she reasonably believes that: (1) such other person is committing any felony; and (2) deadly force is necessary to prevent commission of the crime.¹⁵ This version of the defense is remarkably broad in that it authorizes use of necessary deadly force to prevent nonviolent felonies. Thus, under this approach, D may kill V, a would-be felonious thief, if it is the only means to prevent her from taking the personal property of D or a third person, even though no life is jeopardized by V's criminal activities.

The right to use deadly force in crime prevention, as stated here, is broader than the scope of the common law justification of defense-of-property, which bars the use of deadly force to protect a person's possessory interest in property.¹⁶ This difference results in an undesirable anomaly: If a defendant kills an intended thief, she may avoid conviction if she claims the defense of crime prevention, but may be convicted of murder if she raises a defense-of-property claim.

[b] Narrow Defense: Majority Rule

In modern times, the right to use deadly force is usually limited to the prevention of "forcible" or "atrocious" felonies...