Legal Research Series: Police Officer's Use of Excessive Force in Making Arrest

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POLICE OFFICER’S USE OF EXCESSIVE FORCE IN MAKING ARREST

James O. PearsOn, Jr., J.D.

Fact in issue: Whether a police officer, in making an arrest, used excessive force

This fact question may arise in a criminal action against a police officer based on his conduct in making an arrest, or in a civil action, including one for violation of the arrestee’s civil rights, where the arrestee is seeking to recover damages for injuries sustained during his arrest.

I. BACKGROUND§ 1. In general; the right of arresting officer to use reasonable force§ 2. Standard of “reasonable force”; determination of whether standard was met§ 3. Burden and degree of proof; presumption of good faith§ 4. Arresting officer’s right of self-defense§ 5. Use of deadly force in arresting misdemeanant§ 6. —Firing warning shots at fleeing misdemeanant§ 7. —Right to kill resisting misdemeanant§ 8. Use of deadly force in arresting felon§ 9. —Type of felony§ 10. —Knowledge of arresting officer as to whether felony was committed§ 11. Elements of damages: guide and checklist

II. PROOF THAT POLICE OFFICER, IN MAKING AN ARREST FOR A MISDEMEANOR AND LATER A FELONY, USED EXCESSIVE FORCE

a. elements of Proof§ 12. Guide and checklist

B. Testimony of arrestee§ 13. Commission of misdemeanor§ 14. Use of deadly force against misdemeanant resisting arrest but not endangering officer’s life

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9-363 ARREST—USE OF EXCESSIVE FORCE

§ 15. Use of force against nonresisting misdemeanant§ 16. Rebuttal of possible claim of self-defense by arresting officer§ 17. Commission of felony§ 18. Rebuttal of possible claim that arrestee’s injuries were received in car crash§ 19. Availability of means, other than deadly force, to arrest felon

C. Testimony of eyewitnesses§ 20. Confirmation of fact that arrestee sustained injuries before car crash§ 21. Confirmation of fact that officer’s use of deadly force in self-defense was not justified§ 22. Confirmation of fact that arrestee received no additional injuries in car crash

COLLATERAL REFERENCES

Text References:Civil liability of arresting officer, 5 Am Jur 2d, Arrest § 114Degree of force allowable by arresting officer, W. Prosser, Law of Torts § 26 (4th ed 1971)Police officer’s defense of “privilege” to use reasonable force in making an arrest, 6 Am Jur 2d, Assault

and Battery § 148Right of arresting officer to use force, 5 Am Jur 2d, Arrest §§ 80-84Use of deadly force by police officer in making an arrest or preventing escape, 40 Am Jur 2d, Homicide

§§ 134-38Use of force in making an arrest, 1 R. Anderson, Wharton’s Criminal Law and Procedure 452,

459 (1957)

Legal Periodicals:Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131Griffen, The Appropriateness of Deadly Force, 15 How L J 307McDonald, Use of Force by Police to Effect Lawful Arrest, 33 Neb L Rev 408Moreland, The Use of Force in Effecting or Resisting Arrest, 9 Crim L Q 435Note, The Application of Deadly Force to Effectuate an Arrest, 5 Washburn L J 262Note, Torts—Use of Force in Effecting an Arrest, 17 Loyola L Rev 470Note, The Use of Deadly Force by a Peace Officer in the Apprehension of a Person in Flight, 21 U Pitt

L Rev 132Note, The Use of Deadly Force in the Apprehension of Fugitives from Arrest, 14 McGill L J 293Pearson, The Right to Kill in Making Arrest, 28 Mich L Rev 957Rummel, The Right of Law Enforcement Officers to Use Deadly Force to Effect an Arrest, 14 NY L F 749Uelmen, Varieties of Police Policy: A Study of Police Policy Regarding the Use of Deadly Force in

Los Angeles County, 6 Loyola U L Rev (LA) 6

Pleading Forms:Allegations in Civil Rights Act complaint of abusive treatment by police in making of arrest, 5 Am Jur

Pl & Pr Forms (rev ed), Civil Rights Form 2

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ARREST—USE OF EXCESSIVE FORCE 9-363

Answer in assault and battery case that force used was reasonably necessary to make arrest, 2 Am Jur Pl & Pr Forms (rev ed), Assault and Battery Forms 283-285

Complaint against police officer for wounding felony suspect during arrest, 22 Am Jur Pl & Pr Forms (rev ed), Sheriffs, Police, and Constables Form 133

Complaint alleging unjustified assault and battery by police officer while arresting prisoner for intoxication, 22 Am Jur Pl & Pr Forms (rev ed), Sheriffs, Police, and Constables Form 132

Jury Instructions on use of force reasonably necessary to make an arrest, 2 Am Jur Pl & Pr Forms (rev ed), Assault and Battery Forms 287, 288

Trial Techniques:Police Misconduct Litigation—Plaintiff’s Remedies, 15 Am Jur Trials 559

Annotations:Municipal liability for personal injuries resulting from police officer’s use of excessive force in

performance of duty. 88 ALR2d 1330.Personal liability of peace officer, sheriff or other peace officer, or bond for negligently causing personal

injury or death. 60 ALR2d 873.Criminal responsibility of officers for killing or wounding one whom they wished to investigate or

identify. 61 ALR 321, supplementing 18 ALR 1368.Degree of force that may be employed in arresting one charged with a misdemeanor. 42 ALR 1200,

supplementing 3 ALR 1170.Police action in connection with arrest as violation of Civil Rights Act, 42 USC § 1983. 1 ALR Fed 519.

INDEX

Absence of resistance, use of force in case of, § 1Arresting officer—

belief that life was endangered, reasonableness of, § 16liability—

as compared with other defendants, § 2as depending on use of “clearly excessive” force, § 3degree of for excessive force, see Excessive forcerequisites of under 42 USCS § 1983, § 1where adjudicated, § 1

misdemeanant, as liable for using deadly force against, § 5necessary force, as having right to use, § 1reasonable man standard as governing, § 8resistance against, as having right to overcome, § 1warning shots, as having right to fire, § 6

Assault, action against arresting officer for, § 14Burden of proving excessive force, § 3

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Checklist—damages, § 11elements of proof, § 12

Civil rights, use of reasonable force as violating, see Reasonable forceClear and satisfactory preponderance of evidence, duty of suspect to produce, § 3Dangerous felony, necessity for to justify deadly force, § 9Deadly force–

arresting officer’s use of as justified, testimony, § 21 assault on arresting officer, as usable after, § 4felon, as usable against, § 8felony-in-fact, as depending on existence of, § 10force other than, availability of, testimony, § 19misdemeanant, as usable in self-defense, § 4Model Penal Code, position of, see Model Penal Codepublic place, use of in, § 8reasonable belief that felony has been committed as necessary for justifying use of, § 10resisting misdemeanant, use of against, § 7Restatement of Torts, position as to use of in self-defense, § 4riot suppression, as usable during, § 5self-defense, use of in, § 4

Demonstrative evidence, advisability of use of, § 16use of, advisability, § 16

Evidence—demonstrative evidence, § 16real evidence, § 16statements concerning speaker’s state of mind, admissibility of, § 14

Excessive force—burden of proving, § 3due process, as constituting denial of, § 1federal question, as constituting, see Federal questionliability of arresting officer for using, § 1state law, use of in determining, § 1state of mind of arresting officer as determining, § 10use of, generally, § 1

Eyewitness—importance of having, § 19testimony of, §§ 20-22

Federal question—color of state law, as involved in whether arresting officer acted under, § 1excessive force as constituting, § 1

Felon, use of deadly force against, § 8Felony—

commission of, testimony, § 17

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type of as determining right to use deadly force, § 9Felony-in-fact—

deadly force, as necessary for justifying use of, see Deadly forcerule requiring, rationale of, § 10victim of deadly force, as required to have been committed by, § 10

Injuries, possibility of having been received from source other than arresting officer, testimony, §§ 18, 22Justifiable homicide statutes as governing use of deadly force against felons, § 9Misdemeanant, use of deadly force against, §§ 5, 14Misdemeanor—

commission of, testimony, § 13evidence of as introduced by arrestee, § 14

Model Penal Code—deadly force, as dealing with use of against felon, § 9reasonable belief rule that felony has been committed, as dealing with, § 10

Preponderance of evidence, suspect’s duty to overcome, § 3Presumption of good faith, suspect having duty to overcome, § 3Public place, use of deadly force in against felon, § 8Real evidence, necessity of establishing chain of possession, § 16Reasonable belief rule—

deadly force, as causing indiscriminate use of, § 10Model Penal Code, position concerning, see Model Penal CodeRestatement of Torts, position concerning, § 10

Reasonable force—appeal from determination of, standards applicable, § 2arresting officer—

as judge of, § 2liability of to suspect when using, § 1

civil rights, as violating, § 1directed verdict, as applicable when determining what constitutes, § 2jury, as question for, § 2misdemeanant, as encompassing use of deadly force against, § 5surrounding circumstances, as depending on, § 2test in determining whether used, § 2

Resistance—absence of, use of force in case of, § 1right of arresting officer to overcome, see Arresting officer

Restatement of Torts, position of concerning reasonable belief rule that felony has been committed, § 10Riot suppression, use of deadly force against misdemeanant in suppressing, § 5Self-defense—

burden of establishing need for, § 4rebuttal of arresting officer’s claim to, testimony, § 16rule that aggressor may not use, applicability to arresting officer, § 4use of deadly force in, see Deadly force

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Speed, evidence of as requiring expert testimony, § 22Suspect—

degree of proof required by, § 3guilt or innocence—

advisability of suspect’s admitting, § 14as affecting recovery of damages against police officer, § 14

presumption of good faith, duty to overcome, § 3testimony of, §§ 13-19

United States Code—excessive force as denial of due process under, see Excessive forceliability of arresting officer under, see Arresting officer

Vehicles, use of warning shots against, see Warning shotsVicious felony rule, position of Restatement of Torts concerning, § 9Warning shots—

arresting officer, liability of for firing, see Arresting officerdefinition of, § 6jury question, reasonableness of as constituting, § 6misdemeanant, as usable against, § 6standard of care in firing, § 6vehicle, as usable against, § 6

I. BACKGROUND

§ 1. In general; right of arresting officer to use reasonable force

The basic principle governing the force that an arresting officer may employ is that when the officer has the right to make the arrest1, he may use whatever force is necessary in apprehending the suspect2, but may not use excessive force3. This principle means that in the absence of resistance or flight by the suspect an arresting officer has no right to use any force or violence4, but that if the arresting officer is resisted by the suspect, he may meet the

1 In order to focus solely on the question of the excessiveness of the force employed in making an arrest, it is assumed in this article that the arresting officer was entitled to make the arrest.

2 5 Am Jur 2d, Arrest § 80.3 City of Miami v Albro — Fla App —, 120 So 2d 23.4 Carter v State — Okla App —, 507 P2d 932.

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resistance and overcome it5.Reminder: It should be noted that even if an arresting officer uses reasonable force in

effecting an arrest, he may, nevertheless, be liable for any harm done to the arrestee if the need for the use of such force arises in the first instance from the officer’s negligence. Thus, one court held that plain clothes officers were liable for shooting a fleeing felon, despite the general rule permitting the use of deadly force in this situation6, since the officers failed to identify themselves before pointing pistols at the suspect and ordering him to freeze. The court explained that the officers were negligent not in the use of force, but in their failure to take steps which would reasonably have prevented the need to use force in the first place7.

If the arresting officer exceeds the amount of force he is privileged to use under the circumstances, he is liable for only so much of the force as is excessive.8 His liability may be adjudicated in either a criminal9 or a civil action, such as a civil rights proceeding under 42 USCS § 1983.10 In fact, the courts have uniformly held that the excessive use of force by an arresting officer constitutes a denial of due process for which an action for damages lies under this section.11

Case Illustration:In holding that it was error to sustain a police officer’s motion for a judgment notwithstanding the verdict since the jury could well have determined that the suspect had a cause of action under 42 USCS § 1983, the court emphasized evidence showing that the officer, after having ascertained that the suspect did not have his driver’s license with him, applied an armlock to the suspect in order to get him into the patrol care and then hit him on the head, shoulders, hands, and wrists with a blackjack or “slapper,” before

5 Note, The Application of Deadly Force to Effectuate an Arrest, 5 Washburn L J 262.6 See § 8, infra.7 Celmer v Quarberg, 56 Wis 2d 581, 203 NW2d 45.8 City of Miami v Albro — Fla App —, 120 So 2d 23.9 5 Am Jur 2d, § 80.10 42 USCS § 1983 provides that every person who, under color of state or territorial statute,

ordinance, regulation, custom, or usage, subjects or causes to be subjected to any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunity secured by the Federal Constitution or laws, is liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress. Thus the statutory prerequisites to the liability of a police officer under 42 USCS § 1983 are first, that the police officer act “under color of” state or local law, and second, that the suspect be subjected to a “deprivation of any rights, privileges, or immunities secured by the Federal Constitution or laws.” See Annotation: Police action in connection with arrest as violation of Civil Rights Act, 42 USC § 1983. 1 ALR Fed 519, at page 523.

11 Annotation: Police action in connection with arrest as violation of Civil Rights Act, 42 USCS § 1983. 1 ALR Fed 519, at page 525.

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ultimately handcuffing him.12

Conversely, the courts have held that a reasonable degree of force may be exercised to effect an arrest without violating the suspect’s civil rights.13

Case Illustrations:—It was held that no claim was stated under 42 USCS § 1983, where the suspect merely alleged that the police officers, in the course of arresting him for failing to respond to parking warrants, shoved him down a courthouse hallway and assaulted him on the way down the steps to the jail, aggravating a recent surgical operation. The court pointed out that many, if not most, arrests were bound to involve some touching of the person of the arrested person by the officer and that the suspect’s allegations were, at best, charges of a trivial batter set forth in concessionary terms which failed to show the requisite degree of harm needed to constitute a constitutional deprivation.14

—Where the only showing of an alleged excessive use of force was that the arresting officers, in an effort to subdue two teenage boys who were struggling to free themselves after ignoring the officers’ command to stop for interrogation, threw one boy to the ground by tripping him, struck the other with a club, and handcuffed both of them, the court held that the suspects had failed to prove by the requisite preponderance of evidence that they were entitled to relief under 42 USCS § 1983.15

Observation: Whether, in actions under 42 USCS § 1983, the arresting officer acted under color of state law, and whether the conduct complained of, namely, the officer’s excessive use of force, deprived the suspect of a constitutional right, are federal questions.16 However, in determining what constitutes “excessiveness,” the courts turn to state law.17

§ 2. Standard of “reasonable force”; determination of whether standard was met

The test in determining whether an arresting officer used reasonable force is whether he used that amount of force which an ordinarily prudent and intelligent person would have deemed necessary under the circumstances.18 The officer is entitled to act on reasonable appearances of danger and is not required to nicely measure or narrowly gauge the force

12 Stringer v Dilger (CA 10 Colo) 313 F2d 536.13 Annotation: 1 ALR Fed 519, at page 528.14 Daly v Pedersen (DC Minn) 278 F Supp 88.15 Walyd v Kane (DC Wis) 283 F Supp 450.16 Am Jur 2d, Civil Rights § 14.17 See, for example, Sauos v Hutto (DC La) 304 F Supp 124.18 Gillespie v State, 69 Ark 573, 64 SW 947 (it is enough if the forced used appears necessary

to the officer, that is, that he have reasonable grounds for his belief); Hutchinson v Lott — Fla —, 110 So 2d 442.

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required.19 In other words, the arresting officer, within reasonable limits, is the judge of the force necessary to enable him to make an arrest or to preserve the peace,20 and, as one court has stated, when the officer’s conduct comes later to be weighed in the coldness of judicial surroundings, and perhaps in a conference of the judges of an appellant tribunal, the mistake must not be made of evaluating the conduct solely from the viewpoint of the latter environment.21

Case Illustrations:The following two cases provide examples of the use of reasonable force by the arresting officer:—The suspect, a 58-year-old man, was stopped by a police officer for making an improper left turn. The suspect refused to sign the ticket, and was grabbed by the officer, at which time he jerked away and stated that he was going to his office across the street. The officer then followed the suspect and shot him with a one- to three-second blast of mace from a distance of about three feet. On the basis of this evidence, the court stated that notwithstanding the apparent effect of mace, the jury might reasonably have concluded form all of the evidence, including the suspect’s age and apparent belligerence, that the force employed in making the arrest was reasonable. In fact, the court noted, the jury might reasonably have concluded that had mace not been used, a more dangerous force might have been required to bring about the arrest.22

—A finding of no negligence by the trial court was sustained where it appeared that the suspect was guilty of the statutory offense of public intoxication in the presence of a deputy sheriff, who was assaulted savagely while attempting to assist the suspect from a grill, and who, after deciding to take the suspect into custody, struck at him to repel his attack and, in so doing, unintentionally broke the suspect’s glasses and caused an injury which resulted in the loss of the sight of an eye.23

In the following two cases it was held that the arresting officer had failed to act as a “reasonable man”:—Shortly after the suspect, who had apparently been involved in a minor traffic accident, went to bed, two police officers came to the door of his home and told him to get his clothes on and to come to the police station. After repeatedly asking on what grounds, but receiving no explanation, the suspect was handcuffed and pulled out of the door, at which time he resisted and was struck on the head by one of the officers. A struggle then ensued on the front porch, in the course of which the suspect fell therefrom and

19 Conklin v Barfield, 334 F Supp 475.20 Mead v O’Connor, 68 NM 170, 344 P2d 478.21 Thompson v Norfolk & W. Railway Co. 116 W Va 705, 182 SE 880.22 Jennings v City of Winter Park — Fla App —, 250 So2d 900.23 Schell v Collins — ND —, 83 NW2d 422.

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broke his leg. While he was on the ground, one of the officers twisted his arm, and the other choked him and beat him with his nightstick. In holding that this force was clearly excessive, the court emphasized that the suspect could easily have been dealt with the following day rather than being dragged from his home in the middle of the night. The court pointed out that although the suspect’s insistent questions may have irritated the officers, they did not justify the violence used against him.24

—The suspect, a 19-year-old Puerto Rican who was driving without a license, went through a stop sign, hit a car, and proceeded to come to a stop near a telephone pole 450 feet from the point of the collision. According to the suspect, he had no wounds and was not bleeding from the collision, but he did feel dizzy. He then alleged the two policemen took him from his car, beat him with their fists, handcuffed his hands behind his back, and smashed his face against the glass of the back window of his car. Once he was put into the police car, the suspect alleged, one of the officers hit him on the nose with a short club. The police officers alleged that the suspect’s nose was broken during the collision. On the basis of evidence showing that the suspect had no injuries on his face other than the broken nose, the court concluded that it did not seem probable that his nose was broken as the result of the collision. The court stated that whatever scuffle may have taken place and whatever resistance the suspect may have offered, it was obvious that the officers used force well in excess of what was reasonably required, the court adding that there was no need to use any force once the suspect had been handcuffed and placed in the police car.25

Observation: It has been held that an instruction which stated that the test of an arresting officer’s conduct was whether he sued more force than was necessary in the performance of his duties as a “reasonably prudent police officer” did not place undue emphasis upon his position as a police officer. It was stated that such instruction correctly emphasized that there was a difference between a police officer and any other defendant in an assault case since the liability of a police officer, who has a privilege to use force, is founded on legal and policy consideration that are distinguishable from those in an ordinary assault case.26

Whether the force used in making an arrest was reasonable is a question of fact to be determined in light of the circumstances of each particular case,27 and thus is a question for the jury.28 However, if the evidence indicates that the reasonable minds of the jury could not but agree that the arresting officer did or did not act reasonably, the court may direct

24 Hood v Brinson, 30 Ill App 2d 498, 175 NE2d 300.25 Arroya v Walsh (DC Conn) 317 F Supp 869.26 Wirsing v Krzeminski, 61 Wis 2d 513, 213 NW2d 37.27 City of Miami v Albro — Fla App —, 120 So 2d 23.28 Annotation: Degree of force that may be employed in arresting once charged with a

misdemeanor. 3 ALR 1170, page 1172.

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a verdict, rather than submitting the issue to the jury.29 On appeal, the usual standard is applied, namely that the finding of the jury will not be upset if there is any credible evidence which under any reasonable view fairly admits of an inference supporting the finding.30

§ 3. Burden and degree of proof; presumption of good faith

In a civil action against an arresting officer, the burden of proving that the officer used excessive force in making the arrest is on the suspect.31 In addition, the suspect must overcome the presumption that the arresting officer acted in good faith.32

In accordance with the rule in civil actions generally, the suspect must prove each essential element of his claim by a preponderance of the evidence.

Case Illustration:In an action under 42 USCS § 1983, the suspect testified that he had gone into a movie theater, sat down, and then returned to the lobby to get popcorn, when the doorman attempted to deny him admittance back into the theater because he could not produce a ticket or a ticket stub. The suspect returned to the theater anyway, and shortly thereafter, according to his testimony, two police officers told him he would have to leave and then grabbed him, pulled him onto the street, and threw him up against the front end of a squad car, where one of the officers choked him while the other hit him with his club. The suspect further alleged that after he was taken to the police station, he was beaten after denying any knowledge concerning certain burglaries. According to the arresting officers, they had received a call from the theater, questioned the suspect, and, when he could not produce a ticket or a stub, asked him to leave, the officers noting that they had smelled alcohol on his breath and had noticed that his eyes were watery. When the suspect refused to leave, the officers stated that one officer grabbed the suspect’s arm and began walking him toward the exit, at which time the suspect struggled to elude the officer’s grasp, grabbed the officer’s lapel, and ripped off his badge and button. The officers testified that the battle with the suspect continued outside the theater until they ultimately succeeded in handcuffing the suspect’s hands behind his back and putting him into the rear of the squad car. According to both officers, the suspect was not beaten ay any time while at the police station. From this evidence, the court concluded that the suspect had not satisfied his burden of irving his claim by a preponderance of the evidence. Noting that a doctor’s examination had shown that the suspect had various contusions and abrasions on his body, the court reasoned that it was probable that these bruises were received during the scuffle surrounding his arrest, and not from a custodial beating. Thus, the court concluded that the force employed by the officers was not unreasonable

29 Alaniz v Funk, 69 NM 164, 364 P2d 1033.30 Wirsing v Krzeminski, 61 Wis 2d 513, 213 NW2d 37.31 Manson v Wabash Railroad Co. — Mo —, 338 SW2d 54.32 State v Pugh, 101 NC 737, 7 SE 757. 5 Am Jur 2d, Arrest § 81.

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in view of the suspect’s resistance to being ejected form the theater. In reaching this conclusion, the court emphasized that the suspect was an interested party and that his version of the events was wholly unsupported by any independent witnesses.33

Note: In some cases, the courts have held that the suspect’s burden of proof is what is commonly referred to as the middle burden of proof, that is, midway between the preponderance of evidence required in ordinary civil actions and the proof beyond a reasonable doubt required in criminal actions. These courts have stated that the suspect must prove excessive force by clear and satisfactory preponderance of the evidence.34 Another authority has observed that since an arresting officer, who is acting for the protection of the public interest, is permitted an even greater latitude of discretion than a person acting in self-defense,35 he is not liable for adages unless the means he uses are “clearly excessive.”36

§ 4. Arresting officer’s right of self-defense

Whether an arresting officer used excessive force often depends on whether his actions can be justified as having been done in self-defense. As a general rule, an arresting officer may use whatever force may be necessary in self-defense including deadly force if deadly force is necessary, or reasonably appears necessary, to save himself from death or great bodily harm.37 The arresting officer has the burden of establishing the need for the use of self-defense.38

Case Illustrations:—According to the preponderance of the evidence, the suspect, who had been apprehended after creating a disturbance in a hotel and threatening to return and do further damage, attempted to hit the arresting officer after the officer had made him get out of his car and stand in the “frisk” position. The officer blocked the blow and then struck the suspect with a single punch. The court concluded that the officer struck the suspect instinctively and in self-defense and that, therefore, the officer’s conduct was reasonable and necessary. The court pointed out that in defending himself against attack, the arresting officer was entitled to act on the reasonable appearance of danger and that he was not required to nicely measure or narrowly gauge the force to the amount required from a deliberate

33 Jackson v Wenzel (DC Wis) 282 F Supp 357.34 46 Bursack v Davis, 199 Wis 115, 225 NW 738; Wirsing v Krzeminski, 61 Wis 2d 513, 213

NW2d 37.35 As to an arresting officer’s right to use self-defense, see § 4, infra.36 Restatement (Second) of Torts § 132, comment a (1963).37 5 Am Jur 2d, Arrest § 80.38 Note, The Application of Deadly Force to Effectuate an Arrest, 5 Washburn L J 262.

As to the burden of proof in actions involving the excessive use of force by an arresting officer generally, see § 3, supra.

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retrospective view.39

—Where there was conflict in the testimony concerning whether the arrestee was beaten by the arresting officers or whether he received his injuries when he pulled away from the officers and lunged into a tree, but where all parties agreed that the arrestee’s injuries occurred after he had obeyed the officers’ command to put down a shotgun he was holding and then had been handcuffed, the court held that it was reversible error for the trial court to have instructed on the officer’s right of self-defense. The court pointed out that for self-defense to apply, the force used by the officers must have been reasonable and have been applied at a time when the officers were in apprehension of severe bodily harm, a condition which could have been fulfilled in this case only when the arrestee still possessed or had access to the shotgun. Since the record indicated that the arrestee’s injuries occurred after the officers had handcuffed his hands behind his back, the court concluded that there was no evidence on which the affirmative defense of self-defense could be predicated and that it was, therefore, error to give an instruction on that issue.40

The right of an arresting officer to use deadly force in self-defense applies regardless of whether the arrestee is suspected of having committed a felony or a misdemeanor.41 The use of deadly force cannot be justified, however, where the arrestee merely resists or failed to peaceably submit to the arrest; it is only when he assaults the arresting officer that the right of self-defense accrues to the officer.42

An arresting officer is not subject to the rule that the right of self-defense may not be invoked by the aggressor, since it is his duty to be the aggressor and to overcome all resistance, nor is he required to retreat before shooting or striking a fatal blow in his own defense.43 Note: The special nature of an arresting officer’s right of self-defense is recognized in the Restatement (Second) of Torts. It is pointed out therein that an arresting officer may use deadly force in self-defense even though the suspect’s threat to use deadly force against the officer is conditioned upon the officer’s persistence in his efforts, so that the officer is aware that he can avoid the necessity of using deadly force.44

39 Conklin v Barfield (DC Mo) 334 F Supp 475.40 Melichar v Northern — Colo App —, 534 P2d 832.41 Rummel, The Right of Law Enforcement Officers to Use Deadly Force to Effect an Arrest,

14 NY L F 749; Note, The Use of Deadly Force by a Peace Officer in the Apprehension of a Person in Flight, 21 U Pitt L Rev 132.As to the use of deadly force in arresting a misdemeanant and a felon, see §§ 5 et seq., infra, and §§ 8 et seq., infra, respectively.

42 Meldrum v State, 23 Wyo 12, 146 P 596.43 5 Am Jur 2d, Arrest § 80.44 Restatement (Second) of Torts § 131, comment d (1963).

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§ 5. Use of deadly force in arresting misdemeanant

One of the most important factors in determining whether an arresting officer used reasonable force is the seriousness of the crime the arrestee is suspected of having committed, that is, whether he is a suspected misdemeanant or felon.45 The basic rule is that, except when self-defense is involved,46 an officer attempting to arrest a person suspected of committing a misdemeanor has no right to use deadly force,47 even though the suspect will escape unless such force is used.48 If deadly force is used to prevent the escape of a fleeing misdemeanant, the officer using such force may be held either civilly49 or criminally50 liable. However, if the arresting officer unintentionally uses deadly force in this situation, it has been held that the officer is not liable for the resulting death.

Case Illustration:The decedent and a friend, both minors, had been picked up for illegal purchase of alcohol, a misdemeanor, and were driven to the jail. When they arrived, the decedent attempted to escape, and the arresting officer, who was struggling with the decedent’s friend, ordered the decedent to stop and, when this had no effect, pulled his revolver to fire a warning shot.51 As he was about to fire, the decedent’s friend accidentally struck the officer’s arm causing the gun to discharge. As a result, the decedent was killed. In holding that the officer was not liable under the wrongful death statute, the court, although recognizing the general rule that an arresting officer had no right to use deadly force against a fleeing misdemeanant, stated that the rule prohibited only the “intentional” use of deadly force. In the present case, the court emphasized, the harm was unintentionally inflicted since

45 As to the use of deadly force against felons, see §§ 8 et seq., infra.46 See § 4, supra.47 Hutchinson v Lott — Fla —, 110 So 2d 442; Jennings v City of Winter Park — Fla App —,

250 So 2d 900; Carter v State — Okla —, 507 P2d 932.48 Human v Goodman, 159 Tenn 241, 18 SW2d 381

Annotation: Degree of force that may be employed in arresting one charged with a misdemeanor. 42 ALR 1200, supplementing 3 ALR 1170. Comment, The Use of Deadly Force in the Arrest of Misdemeanants, 5 Mo L Rev 93.Note: Section 3.12(2) of the Model Penal Code defines deadly force as force which the actor users with the purpose of causing, or which he knows to create a substantial risk of causing, death or serious bodily harm.

49 Stevens v Adams, 181 Ark 816, 27 SW2d 299; State v Cunningham, 107 Miss 140, 65 So 115; State v Hartford Accident & Indemnity Co. — Tenn App —, 314 SW2d 161.Am Jur: 5 Am Jur 2d, Arrest § 83.Note, The Civil Liability of Peace Officers for Wounding or Killing, 28 U Cin L Rev 488.

50 40 Am Jur 2d, Homicide § 136.51 As to the right to fire a warning shot at a fleeing misdemeanant, see § 6, infra.

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the bullet was discharged with the officer’s arm was struck by the decedent’s friend.52

Observation: The general rule that an arresting officer can use whatever force is reasonably necessary in effecting an arrest53 would appear to justify the use of deadly force against a misdemeanant if no other force were available to prevent his escape. However, perhaps on the assumption that the use of deadly force against a misdemeanant is never reasonable unless self-defense is involved, the courts have restricted the broad implications of the general rule, at least with respect to the use of deadly force against misdemeanants. Similarly, it has been pointed out that even in jurisdictions which possess statutes providing that an officer may sue all necessary means to effect the arrest of a suspect who either flees or forcibly resists, the courts have followed the rule that deadly force cannot be applied against a fleeing misdemeanant, even though the language of such statutes would indicate otherwise.54 However, one instance where deadly force appears to be available for use against a misdemeanant is riot suppression. Many justifiable homicide statutes have been held to permit officers to use deadly force in this situation, even though a riot is generally a statutory misdemeanor.55

§ 6. —Firing warning shots at fleeing misdemeanant

Although an arresting officer may not generally use deadly force against a fleeing misdemeanant,56 he may fire warning shots in an attempt to force him to stop,57warning shots being defined by one court as shots which are not consciously directed at a fleeing offender or his conveyance, but which instead are designed to prevent further flight.58 Suit may be brought against the arresting officer either for injuries sustained from warning shots which accidentally strike the suspect,59 or in the act of firing the shots even though none is hurt.60 In either case, the arresting officer’s liability depends on whether his conduct in firing the warning shots was reasonable under all of the circumstances. In other words, despite the prohibition against using deadly force against a fleeing misdemeanant,61 an officer is not liable as a matter of law for firing warning shots. Rather, his liability is a fact

52 Havier v Partin, 16 Ariz App 265, 492 P2d 761.53 See § 1, supra.54 Note, The Application of Deadly Force to Effectuate an Arrest, 5 Washburn L J 262.55 Note, Justifiable Use of Deadly Force by the Police: A Statutory Survey, 12 W&M L Rev 67;

Comment, Arrest Procedure: Right to Use Force to Arrest During a Riot, 57 Ky L J 290.56 See § 5, supra.57 Hutchinson v Lott, — Fla —, 110 So 2d 442; State v Pope, 212 Miss 446, 54 So 2d 658;

Breese v Newman, 179 Neb 878, 140 NW2d 805.58 Wimberly v Paterson, 75 NJ Super 584, 183 A2d 691.59 Stevens v Adams, 181 Ark 816, 27 SW2d 999.60 Breese v Newman, 179 Neb 878, 140 NW2d 805.61 See § 5, supra.

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question for the jury.62

Case Illustration:The arresting officer was pursuing a suspected parole violator who, during the course of the pursuit, ran into an alley approximately four feet wide and 36 feet long. The pursuing officer, when he reached the alley, shouted “halt,” and upon receiving no answer, fired one shot down the left side of the alley at a patch of light on the ground some 20 or 30 feet away, and struck the suspect and killed him. The officer testified that he intended the shot to be a warning shot but was afraid to fire into the air because it was dark and he freaked that the bullet might have entered a house. In a wrongful death action brought by the decedent’s administrator, the administrator contended that as a matter of law the arresting officer had no right to use firearms in attempting to arrest the decedent, who was suspected only of having committed a misdemeanor. In rejecting this contention and holding that the trial court had properly rejected the administrator’s motion for a directed verdict, the court stated that although it was not permissible to use deadly force against a fleeing misdemeanant, a police officer could discharge a firearm to frighten the misdemeanant into stopping, the officer being accountable, however, for such negligence as resulted in injury to the fugitive. In the present case, the court noted, there was a possibility that the jury could find that the officer’s conduct was not negligent and, therefore, the administrator was not entitled to a directed verdict.63

An arresting officer is also entitled to fire warning shots at a vehicle in which a misdemeanant is riding so long as the shots are not fired at the vehicle generally but are confined to the wheels.64

Case Illustration:Officers pursuing the suspect, who was driving recklessly, radioed ahead to have a roadblock established. As the suspect approached the roadblock at a high rate of speed, he was signaled to stop, but failed to do so, and as he went by, one of the officers fired a warning host across the path of the automobile and then shot at the automobile’s tires. Another officer shot at the right front tire of the automobile. The three bullets struck the right side of the suspect’s automobile, but the suspect was not hit. In sustaining a judgment in favor of the officers, the court stated that an instruction to the jurors that they were to decide whether it was reasonable under all the facts and circumstances for the officers to have shot at the tires of the suspect’s automobile was not erroneous. In rejecting the suspect’s contention that, since an officer has no right to shoot at an automobile in order to arrest a misdemeanant, the instruction was erroneous, the court

62 Hutchinson v Lott, — Fla —, 110 So 2d 442; Wimberly v Paterson, 75 NJ Super 584, 183 A2d 691.

63 Wimberly v Paterson, 75 NJ Super 584, 183 A2d 691.64 Hutchinson v Lott, — Fla —, 110 So 2d 442; State v Pope, 212 Miss 446, 54 So 2d 658;

Breese v Newman, 179 Neb 879, 140 NW2d 805.

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stated that the better rule was that it was a question for the jury whether, under all the facts and circumstances, an officer who fired at the tires of an automobile operated by a misdemeanant used more force than reasonably necessary to stop the automobile and arrest the misdemeanant. The court distinguished between the situation in which the arresting officer fired specifically at the suspect or at his vehicle generally, in which case he would be liable, from the situation which existed in the present case, where the officer fired specifically at the tires of the vehicles in order to bring it to a stop.65

Observation: There is language in one opinion suggesting that if the arresting officer fires at the wheels of a vehicle and accidentally hits one of the occupants, he will automatically be held liable for negligence. In that case, the court stated that the injury to the occupant of the vehicle must have been the result of negligence or carelessness, since specific injury was not intended.66

Despite the fact that the courts have held that police officers are not preclude, as a matter of law, from firing warning shots at fleeing misdemeanants, they have emphasized that the law imposes a duty to employ extraordinary care in the angling and use of firearms in such a situation.67 In fact, one court stated that an officer who resorts to the use of warning shots is held to a duty of prevision not far from that of an insurer.68

§ 7. —Right to kill a resisting misdemeanant

As has previously been stated, an arresting officer, regardless of the nature of the offense involved, may kill a resisting suspect if the officer’s life is in danger.69 A question arises, however, concerning the officer’s right to use deadly force against a resisting misdemeanant, where such force is necessary to effect the arrest but where the resistance offered does not endanger the officer’s life or threaten him with serious bodily harm. Observation: It would appear that this issue would not only arise where the suspect was a misdemeanant since it is clear that an officer may use deadly force to arrest a felon even when not acting in self-defense.70

The courts have split on the right of an arresting officer to use deadly force against a resisting misdemeanant. Some courts have stated that as a general rule, an officer may use all necessary force in arresting a resisting misdemeanant, up to and including killing him.71

65 Breese v Newman, 179 Neb 879, 140 NW2d 805.66 Stevens v Adams, 181 Ark 816, 27 SW2d 999.67 Breese v Newman, 179 Neb 878, 140 NW2d 805; Wimberly v Paterson, 75 NJ Super 584,

183 A2d 691.68 Wimberly v Paterson, 75 NJ Super 584, 183 A2d 691.69 § 4, supra.70 Note, The Application of Deadly Force to Effectuate an Arrest, 5 Washburn L J 262.

As to the use of deadly force against a felon generally, see § 8, infra.71 Annotation: Degree of force that may be employed in arresting one charged with a

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Thus, one court, apparently on the theory that an arresting officer has the right to be an aggressor,72 refused to view the arresting officer’s killing of a suspected misdemeanant in traditional self-defense terms, but instead held that the officer was entitled to an instruction that he had a right, in endeavoring to make the arrest, to use all the force that was necessary to overcome all resistance, even to the taking of life, and that if he used no more force than was reasonably necessary to accomplish the arrest, he should be acquitted.73 Other courts, apparently in the majority,74 have taken the position that an officer is justified in using deadly force against a resisting misdemeanant only when the resistance endangers the life of the officer or threatens to inflict great bodily harm upon him.75 It has been suggested that this rule is a sounder one for the reason that if an officer is not justified in taking the life of a fleeing misdemeanant, then he should likewise not be permitted to take the life of a resisting misdemeanant unless his own life is in danger.76

§ 8. Use of deadly force in arresting felon

If the suspect is a felon,77 rather than a misdemeanant,78 a different set of considerations is involved in determining whether the arresting officer used excessive force. Although the basic rule that an arresting officer may use only that degree of force which is necessary79 is as applicable to felons as to misdemeanants,80 the general rule prohibiting the use of deadly force against a misdemeanant81 is not applicable to felons. Instead, if reasonably necessary to make an arrest, an officer may use deadly force against either a resisting or a fleeing felon.82

misdemeanor. 3 ALR 1170, at page 1175.72 As to an arresting officer’s right to use self-defense without first retreating, see § 4, supra.73 State v Dierberger, — Mo —, 10 SW 168.74 See Note, The Civil Liability of Peace Officers for Wounding or Killing, 28 U Cin L Rev 488,

and Note, The Application of Deadly Force to Effectuate an Arrest, 5 Washburn L J 262, where both commentators state that the basic rule is that an arresting officer may only kill a resisting misdemeanant in self-defense.

75 See, for example, Hutchinson v Lott, — Fla —, 110 So 2d 442.76 Note, The Application of Deadly Force to Effectuate an Arrest, 5 Washburn L J 262.77 As to whether the arrestee must be a felon in fact or only a suspected felon, see § 10, infra.78 As to the use of deadly force against a misdemeanant, see §§ 5 et seq., supra.79 See § 1, supra.80 5 Am Jur 2d, Arrest § 84.81 See § 5, supra.82 Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131.

As to whether the felony involved must be one threatening human life, see § 9, infra.

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Case Illustration:Having been informed that the suspect was bringing in a load of whiskey, the arresting officers posted themselves on the highway and parked their car across it as an obstruction. As the suspect approached the roadblock, he ignored the officers’ command to halt and attempted to run over them. As the suspect was attempting to pass the obstruction, both of the officers fired shots at his car, one of which hit and killed the suspect. On the basis of this evidence, the court held that although the officers may have used to maximum force permitted they were not personally liable for shooting and killing the suspect.83

Observation: Even if the officer’s use of deadly force is justified, if the shooting was done in a public place where the officer understood or should have known that people were in the habit of congregating or were likely to pass, the act might constitute such negligence as to render the officer civilly liable for injury inflicted on an innocent person.84

In determining whether the use of deadly force in arresting a felon was “necessary,” the standard employed is not actual necessity, but rather reasonable necessity.85 Thus, in construing statutes which state that homicide is justified in various situations when “necessarily committed,” the courts have held that the quoted words refer to the amount of force an ordinarily prudent and intelligent person, with the knowledge and in the situation of the arresting officer, would have deemed necessary.86 These decisions of course are in accord with the general rule that an arresting officer’s conduct is to be measured by an objective reasonable man standard.87 It follows, therefore, that an arresting officer may be criminally responsible or civilly liable if he uses more force than is reasonably necessary to effect the arrest.88

§ 9. —Type of felony

Whether an arresting officer’s use of deadly force in apprehending a felon will be held to be excessive may depend on the nature of the felony involved, that is, whether the felony endangers human life or whether it merely threatens a property interest.89 However, the most widely accepted rule, and the one adopted by the Restatement (Second) of Torts90

83 Love v Bass, 145 Tenn 522, 238 SW 94.84 Askay v Malloney, 85 Or 333, 166 P 29.85 Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131.86 Note, Justifiable Use of Deadly Force by the Police: A Statutory Survey, 12 W&M L Rev 67.87 See § 2, supra.88 5 Am Jur 2d, Arrest § 84.89 Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131.90 Restatement (Second) of Torts § 131 (1963).

Note: The first Restatement of Torts § 131 adopted what was known as the vicious felony rule by providing for the use of deadly force in making an arrest only for a felony which

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appears to be that deadly force can be used in arresting a felon regardless of the nature of the felony.91

Observation: At the time this rule was developed, all felonies were punishable by death. It thus followed that since a felon was likely to be executed if brought to trial it should be permissible to kill him to prevent his escape. In modern times, however, statutes have created many felonies which are punishable by death and which do not threaten life, and the courts and legislatures have begun to question the wisdom of allowing officers to use deadly force regardless of the nature of the felony.92 Thus, a number of states have enacted justifiable homicide statutes which depart form the common law by requiring that the felony in question be of a “dangerous” nature.93 For example, a New York statute, in addition to allowing the use of deadly force against a felon for self-defense or where the felon was armed with a firearm or deadly weapon, permits such force only where the felony involved the use, or attempted use, of physical forced against a person or where the felony was kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such offenses.94 Similarly, the Model Penal Code has adopted the view that the use of deadly force in arresting a felon may only be justified for certain types of felonies. Thus, as one of the requirements for the use of deadly force against a felon, the Code provides that the officer must believe either that the crime for which the arrest is made involved the use, or threatened use, of deadly force or that there is a substantial risk that the person to be arrested will cause death or serious bodily hair if his apprehension is delayed.95

normally caused or threatened death or serious bodily harm. However, in both the 1948 revision and the Restatement (Second) of Torts § 131, the vicious felony rule is replaced with a rule providing that any felon, if the other necessary elements are present, may be killed. Thus, it appears that the reason for dropping the vicious felony rule was that it was thought to be too difficult for police officers to make an on-the-spot determination as to whether or not a felony was a “dangerous” one. (Second) of Torts do not specifically refer to the vicious felony rule or mention the reason for its exclusion, it is stated therein (comment g) that it is important that arresting officers know with reasonable certainty the degree of force they are permitted to use and that to this end, it is important that the extent of force that may be used be determined by the general character of the offense, which is capable of being known with reasonable certainty.

91 Martyn v Donlin, — Conn —, 198 A2d 700.92 Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131, Note, Justifiable Use

of Deadly Force by the Police: A Statutory Survey, 12 W&M L Rev 67.93 Note, Justifiable Use of Deadly Force by the Police: A Statutory Survey, 12 W&M L Rev 67.94 New York Penal Law § 35.50.95 Model Penal Code § 3.07(2)(b)(iv).

Comment, The Use of Deadly Force in the Protection of Property Under the Model Penal Code, 59 Colo L Rev 1212.

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In addition to specific statutes prohibiting the use of deadly force against felons unless the felony involved is a dangerous felony, one court has utilized a related statute to reach the conclusion that deadly force can be used only where the felony involved threatens life. The related statute provided that homicide is justifiable, among other times, when committed for the purpose of “preventing” a violent or forceable felony involving danger to life or great bodily harm. The court reasoned that since it is not permissible to use deadly force to prevent the commission of a felony not involving danger to life or great bodily harm it follows that it is not permissible for a policeman to use deadly force to effect an arrest or prevent an escape of one who has committed such a felony.96

§ 10. —Knowledge of arresting officer as to whether felony was committed

In situations involving the use of deadly force against a felon, the issue of whether such force was excessive often turns on the state of the officer’s knowledge concerning the offense involved. Specifically, the question is whether the officer must know for a certainty that a felony had in fact been committed, or whether he need only have a reasonable belief that a felony had been committed. It appears that the majority position is that a felony in fact must have been committed in order to justify the use of deadly force in arresting a felon.97

Case Illustration:Two persons were engaged in a fist fight. One person feel down and the other, upon seeing a police officer, started running. The officer called for him to halt, fired a warning shot, and then fired a second shot at the suspect which hit and killed him. In rejecting officer’s contention that his conduct was justified because he believed, although mistakenly, that a felony had been committed by the decedent, the court pointed out that the very basis for the rule allowing an officer to kill a fleeing felon was that felons ought not to be at large and that the life of a felon had been forfeited since felonies at common law were punishable by death, However, the court reasoned, where no felony had in fact been committed, the reason for allowing an officer to use deadly force was no longer present. The court concluded that in such a situation the sacredness of human life and the danger of abuse by police officers combined to prevent the extension of the common-law rule to cases of suspected felonies.98

96 Sauls v Hutto (DC La) 304 F Supp 124.97 5 Am Jur 2d, Arrest § 84. See also Note, The Use of Deadly Force by a Peace Officer in the

Apprehension of a Person in Flight, 21 U Pitt L Rev 132; Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131.But note that one commentator has stated that a majority of the courts have required only that the officer using the deadly force have reasonable grounds for believing that a felony had been committed. Note, Justifiable Use of Deadly Force by the Police: A Statutory Survey, 12 W&M L Rev 67.

98 Petri v Cartwright, 114 Ky 103, 70 SW 297.

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A corollary of the rule requiring that a felony in fact be committed is that not only must a felony have been committed, but that it must have been committed by the person against whom the deadly force is used.99

Case Illustration:Acting on a confession in which the suspect admitted that he had committed a felony and stated that he was to meet with his two accomplices at a certain location on the following day, police officers, in two cars bearing no official insignia, staked out the location. When a car containing two men arrived at the location, the officers blocked the highway, at which time the driver of the approaching car tried to escape, apparently on the mistaken belief that he was about to be robbed. In the ensuing chase, one of the officers shot and killed one of the occupants of the car, who was in no way concerned with the felony involved, At his trial on criminal charges, the officer who had done the shooting contended that the killing was justified since a felony in fact had been committed. In rejecting this argument, the court stated that the felony in question must have been committed by the person whom the officer was seeking to arrest. Otherwise, the court pointed, out, if a felony had been committed in the community, an officer could shoot and kill an entirely innocent person whom he might suspect of being a felon, as in the present case.100

The rationale for the rule allowing a police officer to use deadly force against a felon only when the suspected felon has, in fact, committed a felony is that if this requirement were dropped, police officers could justify their indiscriminate use of deadly forced by arguing after the fact that they reasonably believed that the suspect was a felon.101 Despite this rationale, some courts have taken the position that a police officer is justified in using deadly force against a felon if he has a reasonable belief that a felony has been committed.102 This position is premised on the belief that police officers, who must make split-second decision, should not be second-guessed if they act reasonably.103 Also, such position is consistent with the rule allowing an officer to make an arrest without a warrant if he has reasonable grounds for believing, as distinguished from having actual knowledge, that a felony has been committed.104

Observation: The argument that the reasonable belief rule would result in the indiscriminate use of deadly force by police officers appears unjustified. The arresting

99 5 Am Jur 2d, Arrest § 84.100 Commonwealth v Duerr, 158 Pa Super 536, 45 A2d 235.101 Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131.102 Murphy v Murray, 74 Cal App 726, 241 P 938; Martyn v Donlin, — Conn —, 198 A2d 700;

State v Autheman, 47 Idaho 328, 274 P 805.103 Note, Justifiable Use of Deadly Force by the Police: A Statutory Survey, 12 W&M L Rev 67;

Note, The Use of Deadly Force by a Police Officer in the Apprehension of a Person in Flight, 21 U Pitt L Rev 132.

104 Martyn v Donlin — Conn —, 198 A2d 700.

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officers’ conduct is controlled by the requirement that he act reasonably which, in this context, means that there must be such a state of facts as would lead a man of ordinary care and prudence to believe or entertain an honest and strong suspicion that the suspect is guilty.105 In addition, the reasonable man standard is a workable one that has been applied in numerous situations over a long period of years.

The Restatement (Second) of Torts has adopted the rule that an officer may use deadly force in arresting a felon if he reasonably believes that the suspect has committed a felony.106 In addition, the Model Penal Code appears to adopt this rule since it contains a provision removing the right to use deadly force win arresting a felon when, due to ignorance or mistake of law, the arresting officers’ believe in the unlawfulness of the arrestee’s conduct is erroneous107 or when the officer, in believing that the use of deadly force is justified, is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of deadly force.108 Observation: The implication of these provisions is that the officer may use deadly force if his belief in the need for such force is reasonable.

§ 11. Elements of damages: guide and checklist

Testimony as to the following elements of damages, among others, should be elicited, when applicable, from the plaintiff and his witnesses in an action seeking recovery from a police officer for excessive force used by the officer in arresting the plaintiff:

✓ Loss of time and labor suffered by plaintiff as a result of injury ✓ Loss of wages ✓ Diminished capacity for work ✓ Medical expenses ✓ Physical pain and suffering ✓ Mental suffering ✓ Circumstances establishing that officer acted with malice, if punitive damages are

sought

105 State v Autheman, 47 Idaho 328, 274 P 808.106 Restatement (Second) of Torts § 131(b) (1963), incorporates as one of the requirements

justifying the use of deadly force in arresting a felon that the arresting officer reasonably believes that the offense was committed by the person against whom the force is employed, if the arrest is made without a warrant.

107 Model Penal Code § 309(1).108 Model Penal Code § 309(2).

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II. PROOF THAT A POLICE OFFICER, IN MAKING AN ARREST FOR A MISDEMEANOR AND LATER A FELONY, USED EXCESSIVE FORCE

A. Elements of Proof

§ 12. Guide and checklist

The following facts and circumstances, among others, tend to establish that a police officer used excessive force in making an arrest:

✓ Excessive use of force against a misdemeanant— – Nature of offense committed by arrestee [§§ 13, 17] – Nature of resistance offered by arrestee [§ 14] – Relative size of officer and arrestee [§ 14] – Statements by officer indicating intent to harm arrestee [§§ 14, 15] – Force applied when arrestee was neither fleeing nor resisting [§§ 15, 19] – Absence of threat to officer’s life by arrestee [§§ 14, 16, 21] – Lack of commands for arrestee to halt or of firing of warning shots [§§ 14, 15, 19] – Absence of opportunity for arrestee to have received injuries from cause other

than arrest [§§ 18, 20, 22] ✓ Unnecessary use of deadly force against a felon—

– Use of deadly force when arrestee was trapped and not resisting [§ 19] – Availability of means other than deadly force to capture arrestee [§ 19] – Lack of command for arrestee to halt [§ 19]

[It is assumed in the following proof that the events occurred in a jurisdiction following the general rules that deadly force, if reasonably necessary to effect an arrest, may be used against a felon, but that such force can only be used against a misdemeanant if he endangers the arresting officer and includes facts and circumstances from numerous cases in order to prove a broad coverage of the types of problems that may arise in establishing use of excessive force on the part of an arresting officer.]

B. Testimony of Arrestee

§ 13. Commission of misdemeanor

[after introduction and identification of witness]

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.Q How old are you?

.A Seventeen.

.Q Are you employed?

.A No, I am a student at [high school].

.Q Did you have any contact with [defendant] on [date]?

.A Yes.

.Q In what connection?

.A I was shooting at some bottles with my rifle when he tried to stop me.

.Q Where were you doing this shooting?

.A In a vacant lot at the corner of [street] and [street] [within city limits].[request Court to take judicial notice that the offense is a misdemeanor under state law. see 29 am Jur 2d, evidence § 27.]

§ 14. Use of deadly force against misdemeanant resisting arrest but not endangering officer’s life

.Q How did you happen to have contact with [defendant]?

.A Well, I was lying down firing at the bottles when I heard a voice behind me say to put the gun down and to get over there.

.Q What did you do?

.A I looked over my shoulder and saw [defendant] standing near the sidewalk, so I got up and went over to him.

.Q Did you take your rifle with you?

.A No, I left it on the ground.

.Q What did [defendant] do when you got over to him?

.A He grabbed my arm and dragged me over to his squad car and threw me against it. Then he told me I was under arrest and to get into the car.

.Q What did you do then?

.A I refused to get in.

.Q Why?

.A I told him I hadn’t done anything wrong and that I wasn’t going with him.

.Q Did you know that firing a rifle in the city was against the law?

.A No.Practice Observation: Evidence concerning the crimes the arrestee allegedly committed

would normally be introduced by the arresting officer in order to justify his actions. In some instances, however, counsel for the arrestee may find it advantageous to present evidence on this matter, such as to establish that the crime was a misdemeanor (see § 5, supra) or, if a felony, that it was one that did not involve a danger to life (see § 9, supra). The arrestee may,

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of course, recover damages for the arresting officer’s excessive use of force regardless of his guilt or innocence of the crime involved, although the advisability of admitting guilt may depend upon the status of any criminal charges against the arrestee. In any event, if guilt is admitted, counsel for the arrestee should introduce any mitigating factors surrounding the commission of the crime since such factors may be relevant in explaining the arrestee’s reaction to being arrested and any action he subsequently took.

.Q What did [defendant] do when you refused to get into his car?

.A He grabbed me by the arm and neck and tried to force me into the car.

.Q What did you do?

.A I pushed his hands away.

.Q What did he do then?

.A He grabbed me again, only harder this time.

.Q Did you continue to resist?

.A Well, I kept trying to push his hands away from me so he couldn’t get me into the car.

.Q How long did this struggle go on?

.A Oh, about 10 to 15 seconds, I guess.

.Q Did either of you fall to the ground during this time?

.A No.

.Q Did you hit [defendant] during the struggle?

.A No, I was only trying to keep from getting put into his car.

.Q Did you have any weapon of any type in your possession during the struggle?

.A No. I had left my rifle on the ground when [defendant] first yelled at me.

.Q How far away was the rifle while you and [defendant] were struggling?

.A About 20 yards.

.Q What are your height and weight?

.A Five feet, eleven inches and about 170 pounds.

.Q How would you say that that compared with [defendant]’s height and weight?

.A We seemed to be about the same size. He might be a few pounds heavier.

.Q What happened after you and [defendant] struggled?

.A Well, I remember that after struggling for a while [defendant] backed off a few feet, and I noticed him going for his gun.

.Q What did you do when you noticed [defendant] reaching for his gun?

.A We were standing next to his car, so I began to edge around the car.

.Q Then what happened?

.A I saw him point his gun toward me and I ducked down behind the front of his car. Just as I was doing this, I heard his gun go off.

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.Q Were you hit?

.A No.Practice Reminder: An action for assault can be brought against the arresting officer

even though he never actually touched the arrestee. See Hutchinson v Lott, — Fla —, 110 S2d 442.

.Q Did you hear the bullet strike anything?

.A Yes, I heard it hit the right front bumper near where I was.

.Q Did [defendant] say anything to you before he fired?

.A As he was pulling his gun out, he said he was going to take me one way or the other.Practice Reminder: Statements introduced as circumstantial evidence of the speaker’s

state of mind, rather than as evidence of the facts asserted therein, are not hearsay and may be received as evidence. 29 Am Jur 2d, Evidence § 650.

§ 15. Use of force against non resisting misdemeanant

.Q After the shot was fired, what did you do?

.A I wanted to run, but I was afraid he would shoot me, so I tried to keep the car between him and me.

.Q What did [defendant] do?

.A He started edging around the car towards me real slow like. When he would move some, so would I, so that the car stayed between us. A couple of times he would change his direction and start to move the other way around the car. When he did this, so did I.

.Q While this was going on, where was [defendant]’s gun?

.A In his right hand.

.Q Did he fire it during this time?

.A No.

.Q Did he say anything to you?

.A No.

.Q Did you ever break away from the car?

.A Yes, we finally moved completely around the car so that I was on the side facing the field where I had been firing my rifle.

.Q What happened then?

.A There were some trees over to the left along the street on that side of the field, so I decided to run for them for cover.

.Q Did you make the trees?

.A No, right after I left the car, I had to go down a small hill leading on to the field where I had been firing, and I fell down as I was going down this hill.

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.Q Were you able to get up and keep running?

.A No, before I had gotten completely up I felt something hit me on the back of the head which stunned me and I fell back down on my stomach.

.Q Were you hit any more?

.A I was then kicked four or five times in the side and once on the side of the head.

.Q What were you doing while this was going on?

.A I was just lying there. I was still groggy from the first blow on the head.

.Q How long were you lying there?

.A I’m not sure, but it seemed like a long time.

.Q Were you hit any more?

.A Yes, after awhile I rolled over and sat up. Then I saw [defendant] putting away his gun. He then took his nightstick and hit me in the face with it.

.Q What exactly were you doing when you were hit with the nightstick?

.A I was sitting on the ground holding my side where I had been kicked.Case Illustration: Excessive use of force against a non resisting misdemeanant. A

recovery of damages for personal injuries was sustained upon evidence that the suspect, after assaulting a state policeman, had withdrawn and had started to walk away when the policeman, either to satisfy his blind rage or to arrest the suspect for a misdemeanor, shot him after pointing his weapon directly at his body. The court stated that the shooting, for either reason, was not justified. Padilla v Chavez, 62 NM 170, 306 P2d 1094.

.Q Did [defendant] say anything at the time he struck you with his nightstick?

.A Yeah, he said that this is the only thing you [racial slur]s understand.

§ 16. Rebuttal of possible claim of self-defense by arresting officer

.Q What happened next?

.A I was dragged over to the squad car and thrown against it.

.Q Did you get in?

.A No, [defendant] opened the front door and reached inside for something. When he did this I took off.

.Q Why did you take off?

.A I was afraid that [defendant] would start hitting me again?

.Q Which direction did you run?

.A I started back across the field.

.Q Where you had been firing?

.A Yes.

.Q What, if anything, happened to your rifle?

.A I ran by it and picked it up and kept moving.

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.Q Why did you pick it up?

.A I didn’t want to lose it.

.Q Then what happened?

.A I was hit in the right arm by a bullet.

.Q Where was your rifle when you were hit?

.A I was holding it in my right hand.

.Q I show you plaintiff’s Exhibit [exhibit] for identification and ask if you recognize it.

.A Yes. That’s my rifle.

.Q The one you were firing on the day in question?

.A Yes.

.Q How do you recognize it?

.A It has my initials carved on the stock, right there. [Witness points to the initials].[rifle may be introduced as evidence.]

Practice Observation: If required by the court, each person who had possession of the rifle from the time it left the arrestee’s possession until introduced in evidence may be called to establish the chain of possession. See 29 Am Jur 2d, Evidence § 774. However, if the article can be identified sufficiently to satisfy the court, it is not always necessary to place each custodian on the witness stand. See Witt Ice & Gas Co. v Bedway, 72 Ariz 152, 231 P2d 952.

.Q What exactly were you doing when you were hit in the right arm?

.A Well, I was running and had turned slightly to look back when I was hit.

.Q Which way did you turn to look back?

.A Over my right shoulder.

.Q How were you holding your rifle at that time?

.A It was in my right hand and I was holding it on the upper part of the stock just below the trigger guard.

Practice Reminder: At this point, and whenever else necessary, counsel should consider having the witness demonstrate exactly what he did. See 29 Am Jur 2d, Evidence § 769. Also, counsel may wish at appropriate times to introduce diagrams showing the location of the participants. Id., § 802.

.Q Do you remember the direction the barrel of the rifle was pointing when you were hit?

.A No.

.Q Did you fire the rifle at this time?

.A No.

.Q Did you knowingly point the rifle at [defendant] at this time?

.A No.

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.Q Did you have any intention of firing the rifle at [defendant]?

.A No, I just wanted to get out of there.Case Illustration: Reasonableness of officer’s belief that his life was endangered. As the

arresting officer was pursuing a boy who was suspected of having fired a rifle in the city, it appeared, according to the officer’s testimony, that the boy turned around so that the officer felt threatened by the gun which the boy was carrying. The officer responded by firing at and wounding the boy, and, as a defense, claimed that he acted in self-defense. In rejecting this claim, the court noted that the officer was approximately 40 yards behind the suspect, that both parties were running, and that the suspect was holding a BB gun in front of his body. On the basis of this evidence, the court concluded that the officer could only have imagined that his life was going to be endangered, since there were no facts to indicate that from his viewpoint his life was in apparent danger. A bare fear, the court explained, is not sufficient to justify a shooting. Palmer v Hall (DC Ga) 380 F Supp 120.

.Q When you looked back over your right shoulder, did you see [defendant]?

.A Yes.

.Q What was he doing?

.A He was running towards me and pointing his pistol in my direction.

.Q Did he say anything to you?

.A No.

.Q How far away from you was he when you looked back?

.A About 15 yards.

.Q What time of day did this take place?

.A About two o’clock in the afternoon.

.Q What was the weather like then?

.A It was a bright, sunny day.

.Q What happened to your rifle when you were hit.

.A I dropped it on the ground and kept running.

§ 17. Commission of felony

.Q Where were you running to?

.A No place in particular. I was just trying to get away.

.Q Where did you end up?

.A Well, I went to the trees alongside [street] that I mentioned earlier and began running along the road?

.Q Was [defendant] following you?

.A Yes, but he was further behind me now.

.Q How far behind?

.A About 30 or 35 yards.

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.Q What happened next?

.A I saw a lady on the other side of the street opening the door to a car that was parked there. I ran across the street and grabbed her keys and jumped in the car and drove it away.

§ 18. Rebuttal of possible claim that arrestee’s injuries were received in car crash

.Q When you drove away, what direction were you heading in relation to [defendant]?

.A I was heading back toward him, but before I got to him I began making a right turn onto [street]?


.A Just as I was making the turn, I heard shots and then I lost control of the car. The street I was turning into was a narrow street and when I lost control of the car it veered over to the left-hand side of the road, and before I could gain control of the car I hit a car that was parked over there.

.Q How fast were you going when the crash occurred?

.A I don’t know, but it wasn’t very fast. As soon as I lost control of the car, I hit the brakes, and I was fairly well stopped by the time I crashed.

.Q Did your head collide with anything during the crash?

.A No.

.Q Were you hurt in any way during the crash?

.A No.

§ 19. Availability of means, other than deadly force, to arrest felon

.Q What did you do after you crashed?

.A I got out of the car and started running again.

.Q Was [defendant] following you?

.A Yes. By the time I got out of the car and started running down the street where the crash occurred, he was about 25 yards behind me.

.Q Did he do anything to try and get you to stop?

.A I heard one shot, but I wasn’t hit.

.Q Did you hear where the shot hit?

.A Yes, it hit the sidewalk near my feet.

.Q What did you do when you heard the shot?

.A Soon after that, I came to a corner and turned left and then turned left again down an alley.

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.Q Did you keep going down the alley?

.A No. I went a short way down it and saw that it was a dead end.


.A I went back up the alley to the street, but just as I got there I saw [defendant] coming around the corner, so I went back into the alley.

.Q Why did you do that?

.A It was the only thing I could think of at the time. I was afraid that if I went back out onto the street [defendant] would shoot me. He wasn’t very far away by that time.

.Q What happened after you went back into the alley?

.A I looked for some way out but couldn’t find any. There was about a 10-foot stone wall at the end of the alley, and I tried to get over that.

.Q Did you make it?

.A No, it was too high. It was also slick and there weren’t any places to get a hand or foothold. I tried once but I slipped back to the ground.

.Q Did you make any other attempt to get over the wall?

.A Yes. I moved over to the right side of the wall where it joined the building on that side of the alley and tried to use the building to work my way up.

.Q Did you succeed?

.A No.

.Q How close did you come to getting over the wall?

.A I never managed to get a hand up on top of the wall. I didn’t get close at all to getting over it.

.Q After your second attempt, what happened?

.A I looked back over my shoulder and saw [defendant].

.Q How far from you was he?

.A About 20 feet.

.Q Was he moving?

.A No, he was just standing there.


.A I remember looking back at the wall and then I heard a gun go off and was hit in the back.

.Q Did [defendant] say anything before you were hit?

.A No.

.Q When you looked back at the wall just before you were hit, what were you thinking?

.A I had decided to give up. There was no place to run, and by that time I was feeling pretty weak from the beating and the gun wound I had already received.

Case Illustration: Type of circumstances required to show that officer had reasonable

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belief that use of deadly force was necessary. The officer testified that as he was pursuing the suspect, the suspect disappeared into the darkness and that when, by using a flashlight, he finally located the suspect, he was in the process of attempting to get over a fence that was more than three feet high. The officer stated that by the time he could have reached the fence, the suspect would have been over it and into the next yard, Thus, after giving the command to halt, which went unheeded, the officer fired at and wounded the suspect. On the basis of this evidence, the court concluded that even though the officer was only 15 feet from the suspect when he fired the shot, and although two other officers were in the general neighborhood, the jury was fully justified in finding that the officer reasonably believed that the shooting was necessary to prevent the suspect’s escape into the darkness of night. Martyn v Donlin — Conn —, 198 A2d 700.

C. Testimony of Eyewitness

§ 20. Confirmation of fact that arrestee sustained injuries before car crash

[after introduction and identification of witness].Q What is your occupation?.A I am a student..Q How old are you?.A Seventeen..Q Do you know either [plaintiff] or [defendant]?.A No.Practice Observation: The testimony of the arrestee is often diametrically opposed

to that of the arresting officer. Thus, since the arrestee has the burden of establishing “excessiveness,” (see § 3, supra), the testimony of an apparently neutral eyewitness may be especially helpful.

.Q Did you see them on [date]?

.A Yes.

.Q Under what circumstances?

.A I was walking along [street] when I saw [defendant] pulling [plaintiff] toward his police car.

.Q What was the condition of [plaintiff]?

.A His nose was bleeding and his left eye looked all puffy.

.Q Did you see [defendant] hit [plaintiff]?

.A No, but he pushed him up against the squad car pretty hard.

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§ 21. Confirmation of fact that officer’s use of deadly force in self-defense was not justified


.A Well, [plaintiff] began to run across a field toward [street]. As he was running, he picked up a rifle.

.Q Can you describe exactly how he picked the rifle up?

.A He bent over as he was running and grabbed it by the stock.

.Q What hand did he use to pick it up?

.A His right hand.

.Q In what direction was the barrel pointing?

.A Straight ahead.

.Q Which was was that in relation to [defendant]?

.A One hundred eight degrees away from him.

.Q What was [defendant] doing at this time?

.A He was chasing [plaintiff].

.Q Was his gun drawn?

.A Yes.

.Q What happened after [plaintiff] picked up his rifle?

.A He ran a few more yards and then looked back and then {defendant] fired his pistol and hit [plaintiff] in the right arm.

.Q What did [plaintiff] do then?

.A He dropped his rifle and grabbed at his right arm, but kept running.

.Q You mentioned that [plaintiff] looked back just before he was hit. Could you describe the manner in which he looked back?

.A He looked back over his right shoulder. He didn’t actually turn around.

.Q Did you notice his rifle when he looked back?

.A Yes.

.Q Is there any reason you noticed [plaintiff]’s rifle at this time?

.A Yes, as the barrel moved around, the sun momentarily glanced off of it and that caught my attention.

.Q When [plaintiff] looked back how was his rifle pointing in relation to [defendant]?

.A It was pointing off to [plaintiff]’s right side, about 90 degrees away from [defendant].

.Q Did you at any time see [plaintiff] point the rifle in [defendant]’s direction?

.A No.

.Q How far away from [plaintiff] and [defendant] were you when [plaintiff] looked back?

.A I was about 15 yards from [defendant] and 25 or 30 yards from [plaintiff].

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.Q Was [defendant] between you and [plaintiff]?

.A No, I was off to the side some.

§ 22. Confirmation of fact that arrestee received no additional injuries in car crash

.Q After [plaintiff] was hit, what happened?

.A He disappeared through the trees and I lost sight of him.

.Q Did you see him again?

.A Yes, I walked up to the corner of [street] and [street] and saw [plaintiff] heading toward me in a car.

.Q Did he go by you in the car?

.A No, before he got to the intersection I was on, he started to turn right.

.Q How far was that from where you were standing?

.A About 40 or 50 yards.


.A [Defendant] began firing his pistol at the car and [plaintiff] seemed to lose control while he was turning.

.Q What happened when he lost control?

.A [Plaintiff] went across the center lane and hit a car on the other side of the street.

.Q Did you have a good view of the crash?

.A Yes, it occurred while [plaintiff] was turning and before he had gone very far down the street, so it was visible to me.

.Q How fast do you estimate that [plaintiff] was going at the time he crashed?

.A Pretty slow, maybe only five miles an hour or so. He had been coming pretty fast down the street, but when he was making the turn and seemed to lose control, he hit the brakes real hard and had slowed way down when he hit.

Practice Reminder: An estimate of the speed at which a vehicle was moving is generally viewed as a matter of common observation rather than expert opinion, and it is well settled that any person of ordinary ability and intelligence having the means or opportunity of observation is competent to testify to the rate of speed of such vehicle. 31 Am Jur 2d, Expert and Opinion Evidence § 157.

.Q What happened after the crash?

.A I saw [plaintiff] get out of the car and run down the street, and [defendant] followed him.


.A I went over to the car that [plaintiff] had been driving and looked at it.

.Q What condition was it in?

.A The left front tire was flat and the left front fender was banged up pretty well. I didn’t

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see any other damage..Q Did you look inside?.A Yes..Q Did you notice any damage inside?.A No..Q Were any windows on the car broken?.A No..Q Did you notice anything that looked like blood stains inside the car?.A Yes, there were some blood stains on the back of the front seat..Q In relation to where a driver would be sitting, where were these stains?.A They were near where the right arm or shoulder would hit the back of the front seat..Q Did you see any of these stains anywhere else in the car?.A No.Case Illustration: Evidence that the arrestee’s injuries were received at the hands of

the police officer and not from another source. Where a suspect had been involved in a car crash, but claimed that he was uninjured, and then had been allegedly beaten by the arresting officers, the court emphasized testimony from a disinterested bystander who stated that he had looked into the suspect’s car and had seen no blood in it as evidence that the suspect’s injuries were caused by the arresting officers. The court also pointed out that it did not seem probably that the suspect’s nose was broken as a result of the collision since he showed no signs of any other face injuries when examined by a doctor. Arroyo v Walsh (DC Conn) 317 F Supp 869.

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Documents

Legal Research Series: Police Officer's Use of Excessive Force in Making Arrest