criminal-law law-enforcement use-of-force
Are law enforcers allowed to kill killers and why?
<p>One solution to killing is the use of force to prevent the killer from killing. During the process of using preventive force, the enforcers are sometimes left with no option but to kill the killer. In this case, are the enforcers violating the law? And if not, is it safe to say that some forms of killing can be constitutional?</p>

<p>Self-defense is the broadest example of legality in killing (of a human). There are subtle differences in this respect between law enforcement officers and ordinary people. Although it is not framed as self defense, a soldier can also legally kill an enemy combatant, in circumstances that significant go outside the bounds of ordinary self defense (some people try to make this a matter of &quot;self defense&quot;, but military killing is simply a separate concept). Finally, capital punishment is legal in a number of jurisdictions, and may or may not be politically justified as an instance of &quot;self defense&quot;.</p>
<p>The classic self-defense case is partially covered by use-of-force laws such as Washington's <a href="https://app.leg.wa.gov/rcw/default.aspx?cite=9A.16.020" rel="nofollow noreferrer">RCW 9A.16.020</a>. There is a distinction between <a href="https://app.leg.wa.gov/RCW/default.aspx?cite=9A.16.040" rel="nofollow noreferrer">justifiable</a> homicide and excusable (accidental) homicide. First,</p>
<blockquote>
<p>(1) Homicide or the use of deadly force is justifiable in the
following cases: (a) When a public officer applies deadly force in
obedience to the judgment of a competent court; or (b) When
necessarily used by a peace officer meeting the good faith standard of
this section to overcome actual resistance to the execution of the
legal process, mandate, or order of a court or officer, or in the
discharge of a legal duty; or (c) When necessarily used by a peace
officer meeting the good faith standard of this section or person
acting under the officer's command and in the officer's aid: (i) <em>To
arrest or apprehend a person who the officer reasonably believes has
committed, has attempted to commit, is committing, or is attempting to
commit a felony</em>; (ii) To prevent the escape of a person from a federal
or state correctional facility or in retaking a person who escapes
from such a facility; (iii) To prevent the escape of a person from a
county or city jail or holding facility if the person has been
arrested for, charged with, or convicted of a felony; or (iv) To
lawfully suppress a riot if the actor or another participant is armed
with a deadly weapon.</p>
</blockquote>
<p>The italicized portion includes &quot;trying to kill someone else&quot;. The essence of this paragraph is &quot;to arrest a person&quot;. This would not include deadly force for a DUI arrest, so there is a limit on the contexts where deadly force is allowed:</p>
<blockquote>
<p>(2) In considering whether to use deadly force under subsection (1)(c)
of this section, to arrest or apprehend any person for the commission
of any crime, the peace officer must have probable cause to believe
that the suspect, if not apprehended, poses a threat of serious
physical harm to the officer or a threat of serious physical harm to
others.</p>
</blockquote>
<p>If a guy shoots someone and surrenders, the LEO cannot then kill him. If he flees, questions arise. Here are the questions:</p>
<blockquote>
<p>(a) The suspect threatens a peace officer with a weapon or displays a
weapon in a manner that could reasonably be construed as threatening;
or (b) There is probable cause to believe that the suspect has
committed any crime involving the infliction or threatened infliction
of serious physical harm. Under these circumstances deadly force may
also be used if necessary to prevent escape from the officer, where,
if feasible, some warning is given, provided the officer meets the
good faith standard of this section.</p>
</blockquote>
<p>And furthermore,</p>
<blockquote>
<p>(4) A peace officer shall not be held criminally liable for using
deadly force in good faith, where &quot;good faith&quot; is an objective
standard which shall consider all the facts, circumstances, and
information known to the officer at the time to determine whether a
similarly situated reasonable officer would have believed that the use
of deadly force was <em>necessary to prevent death or serious physical
harm to the officer or another individual.</em></p>
</blockquote>
<p>Thus if it is reasonable to believe that Smith intends to hunt down and kill Jones, it may be necessary to use deadly force against Smith to prevent the killing of Jones. However, this defense is not available if Smith intends to steal from Jones.</p>
<p>The &quot;lawful use of force&quot; defense is broad than the &quot;justifiable homicide by officer&quot; defense, by stating more precisely the higher standards required to use deadly force.</p>

<p><a href="/questions/tagged/united-states" class="post-tag" title="show questions tagged &#39;united-states&#39;" rel="tag">united-states</a></p>
<p>In the US, a law enforcement officer (LEO) may not kill someone to prevent a future crime that is not in process nor imminent, nor because of the person's perceived propensity to commit crime. A LEO may only use deadly force if the LEO or some other person (including another LeO) is in imminent danger of death or serious harm, or under certain very limited other circumstances.</p>
<p>A person other than a LEO may use deadly force in self-defense, or in legitimate defense of another, where deadly force is necessary for legitimate defense of self or another person (not usually an aggressor in a conflict).</p>
<p>The exact circumstances in which deadly force may legally be used varies somewhat across the US, and has changed over the last 50 years.</p>
<p>The only government official authorized to &quot;kill a killer&quot; to prevent future crime (not  nor crime in progress) is a properly appointed executioner, acting under a warrant to carry out a lawful death sentence issued by a court after conviction of a crime that carries a statutory death penalty, in those jurisdictions that have a death penalty.</p>
<p>For example <a href="https://code.dccouncil.us/us/dc/council/code/sections/5-351.01.html" rel="nofollow noreferrer">§ 5–351.01</a> of the laws of the District of Columbia provides, in pertinent part:</p>
<blockquote>
<p>(a) For the purposes of this section, the term:</p>
<p>(a)(1) &quot;Deadly force&quot; means any force that is likely or intended to cause serious bodily injury or death.</p>
<p>(a)(2) &quot;Deadly weapon&quot; means any object, other than a body part or stationary object, that in the manner of its actual, attempted, or threatened use, is likely to cause serious bodily injury or death.</p>
<p>(a)(3) &quot;Serious bodily injury&quot; means extreme physical pain, illness, or impairment of physical condition, including physical injury, that involves:</p>
</blockquote>
<blockquote>
<p>(a)(3)(A) A substantial risk of death;</p>
<p>(a)(3)(B) Protracted and obvious disfigurement;</p>
<p>(a)(3)(C) Protracted loss or impairment of the function of a bodily member or organ; or</p>
<p>(a)(3)(D) Protracted loss of consciousness.</p>
<p>(b) A law enforcement officer shall not use deadly force against a person unless:</p>
<p>(b)(1) The law enforcement officer reasonably believes that deadly force is immediately necessary to protect the law enforcement officer or another person, other than the subject of the use of deadly force, from the threat of serious bodily injury or death;</p>
<p>(b)(2) The law enforcement officer's actions are reasonable, given the totality of the circumstances; and</p>
<p>(b)(3) All other options have been exhausted or do not reasonably lend themselves to the circumstances.</p>
<p>(c) A trier of fact shall consider:</p>
<p>(c)(1) The reasonableness of the law enforcement officer's belief and actions from the perspective of a reasonable law enforcement officer; and</p>
<p>(c)(2) The totality of the circumstances, which shall include:</p>
</blockquote>
<blockquote>
<p>(c)(2)(A) Whether the subject of the use of deadly force:</p>
</blockquote>
<blockquote>
<p>(c)(2)(A)(i) Possessed or appeared to possess a deadly weapon; and</p>
</blockquote>
<blockquote>
<p>(c)(2)(A)(ii) Refused to comply with the law enforcement officer's lawful order to surrender an object believed to be a deadly weapon prior to the law enforcement officer using deadly force;</p>
</blockquote>
<blockquote>
<p>(c)(2)(B) Whether the law enforcement officer engaged in de-escalation measures prior to the use of deadly force, including taking cover, waiting for back-up, trying to calm the subject of the use of force, or using non-deadly force prior to the use of deadly force; and</p>
</blockquote>
<blockquote>
<p>(c)(2)(C) Whether any conduct by the law enforcement officer prior to the use of deadly force increased the risk of a confrontation resulting in deadly force being used.</p>
</blockquote>
<p>The Community Relations Service of the U.S. Department of Justice states in its <a href="https://www.justice.gov/archive/crs/pubs/pdexcess.htm" rel="nofollow noreferrer">handbook on POLICE USE OF EXCESSIVE FORCE</a> (from June 1999; Updated June 2002):</p>
<blockquote>
<p>Community disturbances resulting from the police use of excessive or deadly force continue to plague many American communities. Law enforcement is an important societal function and its effectiveness is hampered when tensions exist between the police department and the public it serves.</p>
<p>...</p>
<p>From Community Relations Service's (CRS) 35 years of conciliation experience in the area of race relations, we are convinced that incidents of police use of excessive and lethal force can be prevented, and the turmoil in the communities in the aftermath of such an incident can be reduced; civil unrest and disorder is not a necessary consequence of such a terrible tragedy.</p>
<p>This guidebook was developed to give the police and community groups options for addressing any controversy surrounding the police use of excessive or deadly force. Even after pursuing formal avenues like criminal prosecutions and civil litigation, we are still left with the need to address the underlying, unresolved concerns.</p>
<p>...</p>
<p>Prior to 1985, a majority of the 50 states had laws that authorized the so-called &quot;any-felony&quot; policy - essentially, that police could use firearms or any other means of deadly force to arrest a person suspected of committing any felony. Some states permitted police officers by law to shoot fleeing persons, including those suspected of such property offenses as check forgery and auto theft. Other states had slightly more restrictive variants on the use of deadly force, limiting its use to persons suspected of having committed &quot;forcible&quot; felonies, such as a robbery. About 12 states had no statute at all on police use of deadly force.</p>
<p>In 1985, the U.S. Supreme Court's decision in <em>Tennessee v. Garner</em> (471 U.S. 1) placed restrictions police use of deadly force. They ruled that: &quot;deadly force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.&quot;</p>
</blockquote>
<p>In <a href="https://supreme.justia.com/cases/federal/us/471/1/" rel="nofollow noreferrer"><em>Tennessee v. Garner</em>, 471 U.S. 1 (1985)</a> Justice White wrote for the majority:</p>
<blockquote>
<p>[471 U.S. 10-12] Without in any way disparaging the importance of these goals [arresting a presumed criminal trying to escape], <strong>we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify the killing of nonviolent suspects</strong>. Cf. <em>Delaware v. Prouse</em>, supra, at 659. The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion. And while the meaningful threat of deadly force might be thought to lead to the arrest of more live suspects by discouraging escape attempts,  the presently available evidence does not support this thesis.  The fact is that a majority of police departments
in this country have forbidden the use of deadly force against nonviolent suspects. See infra at 18-19. If those charged with the enforcement of the criminal law have abjured the use of deadly force in arresting nondangerous felons, there is a substantial basis for doubting that the use of such force is an essential attribute of the arrest power in all felony cases. See <em>Schumann v. McGinn</em>, 307 Minn. 446, 472, 240 N.W.2d 525, 540 (1976) (Rogosheske, J., dissenting in part). Petitioners and appellant have not persuaded us that shooting nondangerous fleeing suspects is so vital as to outweigh the suspect's interest in his own life. ...</p>
<p><strong>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</strong>. 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 escape, and if, where feasible, some warning has been given.</p>
<p>... <strong>The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.</strong> It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. ...</p>
<p>... 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, <strong>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 escape</strong>, and if, where feasible, some warning has been given. [<em>emphasis added</em>]</p>
</blockquote>
