JUSTICE POLICY RESEARCH REPORT
Issues and Concepts
11-04
Police Use of Force Statutes: States
Inconsistent with Established Constitutional Law
by
R. Paul McCauley, Ph.D.
Professor of Criminology at Indiana University of Pennsylvania
Lawrence Claus, J.D.
Attorney and Former Pennsylvania Chief Deputy Attorney General
ACKNOWLEDGEMENTS
The authors wish to acknowledge the research contributions of graduate assistants John Lewis and Monique Johnson.
Address Correspondence to:
R. Paul McCauley, Ph.D.
Department of Criminology
Indiana University of Pennsylvania
G-1 McElhaney Hall, 441 North Walk
Indiana, PA 15705-1087
Email: mccauley@iup.edu
ABSTRACT
The authors present the underlying issues of the law regarding police use of force by examining the following four areas: (1) Section 508 of the Pennsylvania Crimes Code itself; (2) the United States Supreme Court decision in Tennessee v. Garner comparatively analyzed with Pennsylvania’s Crimes Code Section 508; (3) analyses of the remaining 49 state statutes which regulate use of force by law enforcement officers; and, (4) the legal models of police use of force policy and training.
It is concluded that the statutory language of Section 508 of the Pennsylvania Crimes Code: Use of Force in Law Enforcement is in conflict with case law previously handed down by the U.S. Supreme Court. The issue in this matter comes down to the propriety of the use, by the Pennsylvania Legislature, of a particular conjunction, that is, the disjunctive word “or” as opposed to the conjunctive word “and” in Section 508(a)(1)(ii). Analyses of the other comparable 49 state statutes reveal similar defective statutory language created by use of the disjunctive word “or” in Illinois and Missouri. In addition, Arizona, Colorado, Iowa, Maine, New Hampshire, North Carolina, and Oklahoma’s similar use of the word “or” but with variation is problematic and demonstrates the absence of clearly articulable standards regulating police use of force.
The authors suggest that it is both important and necessary that the deficiencies in these states’ use of force statutes be addressed prophylactically. The legislative, legal, law enforcement, and academic communities must not ignore this defect and wait for future litigation when the defects inherent within these statutes are evident and the risks arising from such defects place citizens, individual officers, and law enforcement agencies in potential jeopardy of harm and civil litigation. In other words three states in positions equivalent to that which was once encountered by the State of Tennessee through the 1985 U.S. Supreme Court decision in Tennessee v. Garner. The seven other states are in a slightly different situation but needing attention.
TABLE OF CONTENTS
Page
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Analysis of Pennsylvania Statute Section 508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Tennessee v. Garner and Section 508: A Comparative Analysis . . . . . . . . . . . . . . . . 10
A Practical Scenario . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Recommendation for Constitutional Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Use of Force Implications for Police Vehicle Pursuits . . . . . . . . . . . . . . . . . . . . . . . . 17
Police Use of Force--Legal and Policy Models . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Common Law: Any Fleeing Felon Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
The Forcible Felony Rule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
The Model Penal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
The Defense of Life Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Law Enforcement Training Implications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Introduction
The legal use of force is that which is lawfully available to the law enforcement officer. Police use of force/excessive force, and use of force policies have been the subject of important research (Bayley & Garofalo, 1989; Bittner, 1970; Black, 1980; Chevigny, 1969; Friedrich, 1977; Fyfe, 1986 & 1988; Garner, Buchanan, Schade, & Hepburn, 1996; Garner, Schade, Hepburn, & Buchanan, 1995; Geller & Toch, 1995; Klinger, 1995; Klockars, 1995; Muir, 1977; Reiss, 1968; Sykes & Brent, 1983; Toch, 1969; Westley, 1953; Worden, 1995). Agency policies, laws, and the courts establish the limits of force that the police may use, based on reasonableness. Likewise, police training is that function which serves to translate laws and policies for proper action by officers on the streets.
An area of concern arises out of the statutory language found primarily in three states, Illinois, Missouri, and Pennsylvania. Seven other states, Arizona, Colorado, Iowa, Maine, New Hampshire, North Caroline, and Oklahoma* using variations of language found in the three primary states create ambiguity at best.
The authors use the Pennsylvania statute as reference in this report. Section 508 of the Pennsylvania Crimes Code Use of Force in Law Enforcement uses language, which apparently is in conflict with case law previously handed down by the U.S. Supreme Court. As a result of Section 508's defective language, police agencies’ policies and statewide police training are, in effect, doing the wrong things well.
It is both important and necessary that the deficiencies in Pennsylvania and nine other state statutes be addressed prophylactically. The legislative, law enforcement, and academic communities must not ignore these laws and wait for future litigation when the defects inherent within this statute are evident and the risks arising from such defects place citizens, individual officers, and law enforcement agencies in potential jeopardy of civil litigation. In other words, three states are in positions equivalent to that which was once encountered by the state of Tennessee through the 1985 U.S. Supreme Court decision in Tennessee v. Garner. Seven other states may be watching the clock.
*Arizona Revised Statute Annotated 41-510 (1977)
Colorado Revised Statutes 18-1-707 (1978)
Illinois Revised Statutes Ch. 38. Paragraph 7-5 (1984)
Iowa Code 804.8 (1983)
Maine Revised Statutes Annotated Title 17-A, 107 (1983)
Missouri Revised Statutes 563.046 (1979)
New Hampshire Revised Statutes Annotated 627:5 (II) (Supp. 1983)
North Carolina General Statutes 15A-401 (1983)
Oklahoma Statutes Title 21 732 (1981)
Pennsylvania Consolidated Statutes Title 18 Section 508.
Analysis of Pennsylvania Statute Section 508
The matter that requires consideration specifically is whether the current statutory language in the identified states and as presented using, as an example, Section 508 of the Pennsylvania Crimes Code, should be amended to clarify the Constitutional mandates espoused in the Garner case. The issue in this matter comes down to the propriety of the use, by the state legislatures, of a particular conjunction, that is, the disjunctive word “or” as opposed to the conjunctive word “and” in their respective statutes regarding the use of force by law enforcement officers. This report uses Section 508(a) (1) (ii) of the Pennsylvania Crimes Code to demonstrate the defective statutory language variably found in the states identified as a result of using the disjunctive word “or.” Section 508 reads:
§508. Use of Force in Law Enforcement.
(a) Peace officer’s use of force in making arrest.
(1) A peace officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he believes to be necessary to effect the arrest and of any force which he believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he is justified in using deadly force only when he believed that such force is necessary to prevent death or serious bodily injury to himself or such other person, or when he believes both that:
(i) such force is necessary to prevent the arrest from being defeated by resistance or escape; and
(ii) the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, or [IT IS THIS DISJUNCTIVE WORD, “or,” WHICH THE AUTHORS BELIEVE MUST BE CHANGED TO THE CONJUNCTIVE WORD “and”] (Emphasis added) otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.
By changing the disjunctive word or to the conjunctive word and Pennsylvania Crimes Code Section 508 takes on a more exacting standard, and one which is consistent with Garner. Section 508, as presently written, permits the use of deadly force if the officer believes that such force is necessary to effect the arrest and if the person to be arrested simply is attempting to escape and possesses a deadly weapon. This is inconsistent with established law and is the focus of this report.
The relevant statutory language of the other identified states is presented for reference as follows:
· Arizona: A. R. S. 13-410 C.2. (c). Through past or present conduct of the person which is known by the peace officer that the person is likely to endanger human life or inflict serious bodily injury to another unless apprehended without delay.
· Colorado: C.R.S. 18-1-707. To effect an arrest, or to prevent the escape from custody, of a person whom he reasonably believes:
(III) [or] Otherwise indicates, except through a motor vehicle violation, that he is likely to endanger human life or to inflict serious bodily injury to another unless apprehended without delay.
· Illinois: 720 ILCS 5/7-5. Consistent with Pennsylvania statute.
· Iowa: Iowa Code 804.8. However, the use of deadly force is only justified when a person cannot be captured any other way and either
1. The person has used or threatened to use deadly force in committing a felony or
2. The peace officer reasonably believes the person would use deadly force against any person unless immediately apprehended.
· Maine: 17-A.R.S. 107 2.A. To defend himself or a 3rd person from what he reasonably believes is the imminent use of deadly force; or
B. To effect an arrest or prevent the escape from arrest of a person when the law enforcement officer reasonably believes that the person has committed a crime involving the use or threatened use of deadly force, is using a dangerous weapon in attempting to escape or otherwise indicates that the person is likely to endanger seriously human life or to inflict serious bodily injury unless apprehended without delay.
· Missouri: 563.046 R. S. Mo. Consistent with Pennsylvania statute, except “forcible felony” is replaced by “felony.”
· New Hampshire: R. S. A. 627:5 II. (b) (1). Has committed or is committing a felony involving the use of force or violence, is using a deadly weapon in attempting to escape, or otherwise indicates that he is likely to seriously endanger human life or inflict serious bodily injury unless apprehended without delay: and . . . .
· North Carolina: 15A-401. (d). (2).b. To effect an arrest or to prevent the escape from custody of a person who he reasonably believes is attempting to escape by means of a deadly weapon, or who by his conduct or any other means indicates that he presents an imminent threat of death or serious physical injury to others unless apprehended without delay.
· Oklahoma: 21 Okl.St. 732 2. a. Such force is necessary to prevent the arrest from being defeated by resistence or escape, and
b. there is probable cause to believe that the person to be arrested has committed a crime involving the infliction or threatened infliction of serious bodily harm, or the person to be arrested is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay; or . . . .
The authors submit that Garner, and the Model Penal Code, require that for the use of deadly force during an arrest to be upheld as lawful, the person to be arrested must have done something which will justify the use of that level of force as “reasonable.” Certainly the suspect’s commission or attempted commission of a forcible felony meets that requirement, on its face. But it is submitted that the suspect’s mere “attempt to escape and possession of a deadly weapon”--without the existence of facts which also demonstrate an “imminent” threat to human life, or which reflect the “imminent” infliction of serious bodily injury to some person--fall woefully short of the standard of “reasonableness” required by the U.S. Supreme Court. In other words, the attempt to escape and possession of a deadly weapon must be coupled with facts
which would justify the officer’s belief that “imminent danger” is present at the time deadly force is utilized.
The impact of the use of the word “or” for the third time in Section 508 (a) (1) (ii) is critical in determining the ultimate constitutionality of the Pennsylvania law dealing with “Use of Force by Law Enforcement;” therefore, that word and its placement in the “Use of Force” statute is of critical concern.
That provision of the Crimes Code--which establishes the standards in Pennsylvania for the use of both “force” and “deadly force” for law enforcement purposes, appears to have a flaw in its verbiage which could arguably inure to the detriment of a law enforcement an officer who acts in a manner which appears to be in accord with the law in the Commonwealth. Just as the officer in Tennessee v. Garner learned 11 years after the fact: after the shot is fired, and notwithstanding the shooter’s “good intentions,” “good faith” is no substitute for “reasonableness;” and it is too late to recall the bullet into its shell casing once the gun has been discharged!
By way of a simple overview one can see that Pennsylvania’s statutory law, specifically Section 508, provides at least four distinct scenarios under which an officer may use deadly force to make an arrest. The first, and one which clearly WOULD MEET the criteria upholding the use of “deadly force” to make an arrest even under the mandates of Tennessee v. Garner, is pursuant to 508 (a) (1):
. . . when he [the officer] believes that such force is necessary to prevent death or serious bodily injury to himself or such other person.
However, there are three other ways where Pennsylvania law would permit the use of deadly force while an officer is making an arrest; each of these require the officer to meet a two-prong test. The first of these three ways and one which arguably also DOES MEET the Garner standard for “reasonableness” because of the involvement of a “forcible felony”--is also pursuant to 508 (a) (1.) That provision requires the officer to “. . . believe[s] both of these two prongs:
(i) such force is necessary to prevent the arrest from being defeated by resistance or escape; and
(ii) . . . the person to be arrested has committed or attempted a forcible felony . . . .
The second of these ways and one which DOES NOT MEET the Garner standard for “reasonableness” is also pursuant to 508 (a) (1); it requires the officer to “. . . believe[s] both of these two prongs:
(i) such force is necessary to prevent the arrest from being defeated by resistance or escape; and
(ii) . . . the person to be arrested . . . is attempting to escape and possesses a deadly weapon . . . .”
In regard to this section of law, unless the “mere possession” of a weapon is construed under all circumstances to equate with “imminent danger” to the arresting officer, then the language does not meet the “reasonableness” standard espoused in Garner. A scenario proffered later in this report challenges the propriety of such an all-encompassing generalization!
The third way authorizing the use of deadly force during an arrest--and one which also clearly DOES MEET the Garner standard for “reasonableness”--is again pursuant to 508 (a) (1); it also requires the officer to “. . . believe[s] both of these two prongs:
(i) such force is necessary to prevent the arrest from being defeated by resistance or escape; and
(ii) . . . [the person to be arrested] [or deleted] otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.”
The three elements of Section 508 are that the perpetrator:
1. Has committed or attempted a forcible felony; or,
2. Is attempting to escape and possesses a deadly weapon; or,
3. Otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.
It is submitted that it is the above language of Section 508 which appears to countenance the use of deadly force under circumstances which are constrary to the standard espoused by the U. S. Supreme Court in Tennessee v. Garner. That 1985 decision, of such vintage to be considered “well established” law, clearly requires that the use of “deadly force” by an officer be limited to those situations where the escaping suspect poses an immediate threat to the officer or to another, or where there is probable cause to believe that the suspect has committed a crime involving the infliction or threatened infliction of serious physical harm (Tennessee v. Garner, 1698 and 1699).
Neither scholars nor practitioners need go far to find support for the proposition that while a state’s statute can be a strong foundation upon which to rest police actions, there is also sufficient precedence to make it clear that a state law in question must also “be in accord” with the mandates of the U. S. Constitution and all of its respective Amendments. Further, the ultimate test for whether the officer’s actions were appropriate, or actionable at law, is one of “reasonableness.” The reasonableness of an officer’s actions within the totality of the circumstances will be scrutinized whether the officer injures or kills a person with a firearm, PR-24, flashlight, his fists (hands), a vehicle, or a weapon of opportunity such as a rock or board.
Tennessee v. Garner and Section 508: A Comparative Analysis
The case of Tennessee v. Garner is one which upheld civil liability against an officer in a wrongful death case for actions taken by that officer notwithstanding the fact that the officer’s response appeared to be--at least at the time that the incident occurred--consistent with the then applicable state law.
In that incident, the applicable law in the State of Tennessee set forth the following:
. . . after notice of the intention to arrest the defendant, he [the defendant] either flee[s] [sic] or forcibly resist[s] [sic], the officer may use all the necessary means to effect an arrest. Tennessee Code Annotated.
The factual circumstance in that case was relatively clear and straightforward: The officer was called to the scene of a reported residential burglary. Once police arrived at the subject location they were told by a witness that a “break-in” was occurring next door. The officer whose actions were ultimately challenged went behind the subject house, heard a door slam, and observed someone (later identified as Garner, the deceased) run across the backyard. The officer was clear in his testimony that he saw no sign of a weapon, and was “ . . . reasonably sure” . . . and “ . . .figured . . .” that the suspect was unarmed. The officer noted the suspect looked to be “. . . 17 or 18 . . .” years old.
As the officer observed the suspect crouching at the base of a fence, he called out “police, halt.” As the officer stepped toward the suspect, the suspect began to climb over the fence. “Convinced that if the suspect made it over the fence, he would elude capture,” the officer shot the suspect. The perpetrator, Garner, died from one bullet in the back of the head.” Evidence identified as having been taken from the crime scene was found on Garner’s body. Tennessee v. Garner, (1697).
In the litigation at the state level that followed this incident, there was no question that under the applicable law in the state of Tennessee at the time the officer’s actions were lawful. Neither a police Review Board, nor a Grand Jury, took any action against the officer for his role in the shooting.
The holding in what became the case of Tennessee v. Garner, arose, therefore, out of a civil “wrongful death” action which was pursued in federal court. The question that made its way to the U. S. Supreme Court boiled down to: “Was the law upon which the officer’s action was based, and, ultimately, the shooting of the suspect by the officer, constitutional?”
After a lengthy discussion of the mandated Constitutional protections contained within the Fourth Amendment, as well as a full discussion of the history of the “use of deadly force” by law enforcement officers under both common law and statutory law provisions across the United States, the U. S. Supreme Court held that the Tennessee law was “invalid” insofar as it purported to give authority to the officer to use deadly force under the circumstance of the facts in that particular case.
The Court went on to make clear that since the officer had “ . . . no articulable basis to think [the deceased] was armed,” the use of deadly force to prevent an escape under those facts was improper (1706). While noting that burglary is no doubt a serious crime, the Garner Court refused to permit an officer to make an “intellectual leap” from the mere fact that a person is engaged in a felony burglary, to the “conclusion” that the said perpetrator can be deemed to be “dangerous.” The Court instead placed the burden on such an officer, or anyone in the future so similarly situated, to “. . . have probable cause to believe that [the suspect against whom deadly force is contemplated] posed a danger to himself [the officer] or to another.” (See Tennessee v. Garner, 1706).
In the midst of the lengthy decision by Justice White, the statutes of a number of states were examined; that included Section 508 of The Pennsylvania Crime Code. Many secondary sources have focused upon the fact that the Garner Court cited Pennsylvania’s Section 508 (18 Pa. C. S. 508) within its opinion as a “proclamation” that the Court was endorsing Section 508 as meeting Constitutional “muster” in regard to the use of deadly force.
In fact, in one subsequently litigated federal court case arising out of the Eastern District of Pennsylvania, that of Africa v. City of Philadelphia, et al., 809 F. Supp. 375, a 1992 decision, this situation was exacerbated by that court’s attribution of an “endorsement” by the U. S. Supreme Court to Pennsylvania’s Section 508 simply because that particular law was one of several mentioned by the Court in the Garner decision.
In reality, a careful reading of the language in the Africa case clearly shows that the federal trial court concluded [and quite incorrectly it seems] that “. . . one of those statutes noted with favor . . .” was Pennsylvania’s Section 508. (Africa, 380). While the above language has been deemed to be a reflection of the U. S. Supreme Court’s “approval” of the language of
Section 508 as being “constitutional,” that is, in reality, a “strained” reading of the Garner Court’s holding.
For, in the very same paragraph containing the above language, the Garner Court went on to state that it was doing nothing more than “surveying” the myriad of ways that the respective states were handling the use the deadly force, noting--without further comment one way or the other--the fact that:
Some 19 states have [simply] codified the Common Law [which the Court, in Garner, rejected as being unlawful]; four state’s retain the Common Law rule [but with no statutory enhancement]; two states have adopted the Model Penal Code’s provision verbatim; and eighteen others [including Pennsylvania] allow, in slightly varying language, the use of deadly force only if the suspect has committed a felony involving the use or threat of physical or deadly force, or is escaping with a deadly weapon, or is likely to endanger life or inflict serious physical injury if not arrested (1704).
Immediately following that above-cited language, is the Court’s footnote, Number 18, which thereafter makes reference to Pennsylvania’s Section 508.
Although clearly the language in Section 508 has provisions which would obviously be acceptable under the rationale of the Court in Garner, including those instances which would arise out of actions where the imminent potential of harm was actually present [See Section 508 (a) (1)], that fact does not mean that the “potential of harm or danger” can be simply conjured up from instances where an arrest is likely to be thwarted; an escape is being attempted; or a deadly weapon is simply in the possession of the subject.
For in the Garner decision that Court made it very clear that one of the failings of the District Court was its leap to a conclusion that there was constitutional significance to the fact that the officer “. . . could not be certain . . . that the suspect was unarmed.” (See Garner, 1706). Instead, the Court pointed out that it was that very lack of knowledge that precluded the officer from establishing a constitutionally-significant, articulable basis for thinking that the suspect posed any physical danger to himself or to others, a situation which would have justified the use of deadly force when Garner was shot (1706).
In fact, then, the Garner case stands for one proposition alone and that is: for an officer to lawfully utilize deadly force, the officer needs to have a reasonable basis upon which to base a fear of physical danger to himself or to another. Any other standard is just not within the parameters of Constitutional law! As the opinion in Garner states:
The fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. [The officer therefore] . . . did not have probable cause to believe that Garner . . . posed any physical danger to himself or others.” The court did postulate, however, that . . . Although an armed burglar would present a different situation, the fact that an unarmed suspect has broken into a dwelling at night does not mean [that he, the perpetrator] is physically dangerous. (1706: head notes 12,13)
It is here that a dilemma exists for Pennsylvania officers and presumably officers in the other identified states. The actual test established by the U. S. Supreme Court to determine such reasonableness under protections of the Fourth Amendment is that which was set forth in
Graham v. Conner. That test is: “were the acts of the officers ‘objectively reasonable’ in light of the facts and circumstances confronting them?” 109 S. Ct. 1872.
Thus, the Pennsylvania standard set forth within Section 508--which is written in the subjective terms of the perceptions of the officer at the scene, belies the fact that when the case gets into court it is a much more objective standard which will determine liability, or the lack thereof.
It is postulated that it could only be advantageous to all to have the language of these state statutes (i.e., Section 508 et al.), track the standard, which will be retrospectively applied by the courts.
A Practical Scenario
The rhetorical question might therefore be asked: Does the mere fact that a perpetrator is carrying a gun mean, on that basis alone, that the perpetrator can be considered “dangerous” for the purpose of utilizing deadly force during an arrest? The answer to this question must, of course, be “No!” The following scenario is offered as an example: An officer sees a minor traffic violation occur and the officer pulls the errant driver over to give a citation. As the officer, who is standing at the driver’s door window, requests to see the requisite driver’s and operator’s cards, the driver reaches into a coat pocket to retrieve the cards for the officer. As the driver does this, the officer catches a glimpse of two things, marijuana cigarette on the car’s consol, and a handgun being carried in a concealed holster on the driver [unbeknownst to the officer at that time the driver has a valid permit to carry a concealed weapon]. Reacting swiftly to these unforeseen circumstances the officer reaches for his own weapon and shouts a demand for the gun to be surrendered; the now-panicked driver--greatly startled by the officer’s sudden command [and, possibly, by the prospect of going to jail for the potential drug charge!] turns quickly, startling the officer who loses his balance and falls away from the car. The two-way radio, which the officer had been carrying breaks, and is no longer useable. The driver--now even more panicked by what has occurred, steps on the car’s accelerator and proceeds to flee from the scene. The officer, no longer in a position to either control the situation or to halt the perpetrator’s flight, remembers that under Pennsylvania law a person who is escaping, and who has a deadly weapon, is nominally within the purview of the language of section 508 of the Crimes Code. Although the officer realizes that he cannot use deadly force under Section 508 (a) (1) since he is not in jeopardy of life or limb from the suspect, the officer then considers his recollection of Section 508 (a) (1) (i); he quickly concludes; without the use of deadly force the suspect will escape; he, the officer, is not in a position to thwart the escape; and the escaping suspect is in possession of a deadly weapon! Deciding that the applicable law permits the use of deadly force in such a situation, the officer fires at the driver of the now fast disappearing car and fatally wounds him.
Clearly, the threshold requirements of Tennessee v. Garner have not been met in the above example, and any injury or death caused by the officer so reacting is likely to have dire consequences on the perpetrator, the employing municipality and police department, and, lastly, upon the officer who fired--even if the officer’s actions appeared to have been done in reliance on the statutory authority of Crimes Code Section 508 (a) (1). As was the officer in Tennessee v. Garner, it is likely that the hypothetical officer in the above scenario would be found to have violated the constitutional rights of the deceased actor.
It is this type of “misunderstanding” of the “applicable” law which must be addressed adequately in the “Use of Force” portions of all training classes and agency policies. It is not sufficient simply to teach the provisions of the statute or to say that it is “up to the legislature” to effect a remedy.
Recommendation for Constitutional Compliance
Clearly, legislatures must address this issue and bring applicable statutes into compliance with established constitutional law. To meet the established constitutional requirements, it is offered that the substitution of the word “and” in place of the word “or” at 18 Pa. C. S. Section 508 (a) (1) (ii) must be made. That change would read:
(ii) the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, and otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.
By changing the disjunctive word “or” to the conjunctive word “and” Section 508 takes on a more exacting standard consistent with Garner. Pennsylvania’s Section 508, as written, appears on its face to permit the use of deadly force if the person to be arrested simply is attempting to escape and possesses a deadly weapon. The authors submit that Garner, and the Model Penal Code, require more!
Use of Force Implications for Police Vehicle Pursuits
Deadly force can be applied a variety of ways, whether the weapon is a firearm, a club, a fist, or a vehicle. Each is capable of causing serious bodily injury or death. Alpert and Anderson
(1986) noted that “. . . when a police officer engages in a high-speed chase in a high-powered police car, that vehicle becomes a potentially deadly weapon.”
Police vehicle pursuit policies commonly attach “use of force standards” to regulate pursuit vehicle/maneuvers which may constitute the use of deadly force. For example, it is generally accepted that a pursuing police vehicle may not be used to ram a fleeing suspect vehicle unless deadly force is justified. The statutory reference for the use of deadly force by the pursuing officer is Section 508. Carjacking, for example, is a forcible felony; however, if the escaping carjacker does not possess a weapon and is not using the vehicle in a manner which an officer could reasonably conclude will endanger human life or inflict serious injuries if not arrested without delay, an issue arises as to whether deadly force may be used. In a case recently litigated in the Court of Common Pleas of Philadelphia, Chrismar v. City of Philadelphia, that became an issue. A question arose as to whether Section 508 authorized the use of deadly force during an attempt to apprehend a suspect believed to have committed a felony carjacking. As Section 508 currently is written, deadly force may have been permissible in that case. Certainly at least one Pennsylvania appellate case, Commonwealth v. Thompson demonstrates that an automobile can be construed to be a “deadly weapon!” Although the factual basis in Thompson may be distinguishable, the issue may nonetheless arise when a vehicle is used as a “deadly weapon.”
At least two scenarios appear to be on point in this circumstance: first is one in which the suspect’s vehicle itself could be construed to be a “deadly weapon” for the purpose of authorizing the officer to lawfully shoot in order to effect an arrest; and the second situation--can the officer’s vehicle be considered a deadly weapon if the vehicle is used to effect an arrest?
Consider the situation where an officer seeks to apprehend a suspect who is carrying a weapon for which he, the suspect, has a “carry” permit; when such a suspect drives away from the officer who is not otherwise in a position to stop the fleeing person, may an otherwise “incapacitated” officer “shoot” to effect the arrest because he, the suspect, is carrying a gun? Would the result be any different if no gun in the hands of a suspect was involved, but only that the suspect is driving a vehicle--which, under other circumstances--has been perceived to be a “deadly weapon?”
Similarly, an issue may arise as to the impact of the existing state statutes when an officer in a police vehicle is in pursuit of an armed pedestrian suspect who has a carry permit. May the officer strike the “armed” suspect with the police vehicle (i.e., use deadly force) to accomplish the arrest? The lawfulness of such an action will certainly be scrutinized under the auspices of the criteria set forth within Section 508 and the nine other states’ statutes.
In two recent Pittsburgh, Pennsylvania cases, the “deadly weapon” being wielded by the respective deceased parties/suspects--which precipitated police shootings--was an “automobile;” these were the cases involving Pittsburgh Police Officer Jeffrey Cooperstein (death of Deron Grimmit, Sr.); and Pittsburgh Housing Police Officer John Charmo (death of Jerry Jackson). Similar incidents, unfortunately, are reported nationally.
It is clear, therefore, that the relationship between police use of deadly force and the “issue” of “police vehicles” as weapons is a real one. The ambiguity of statutory law has confused police officers, state trainers, agency policies, and the Bar. And, as a consequence of this ambiguity, the liberties of citizens and the careers of officers are at risk.
Police Use of Force--Legal and Policy Models
Balancing the competing goals of crime control and individual liberty is often delicate. Clearly citizens want effective law enforcement to control crime. Officers must have sufficient powers and resources to prevent, detect, investigate, apprehend, and prosecute offenders.
On the other hand, citizens value their freedom and want to be relatively free from government intrusions into their homes, businesses, and lives generally. In fact, the American Revolution was fueled significantly on the colonies’ opposition to England’s governmental abuses which were carried out in the name of “enforcing the law.” The two, often-opposing goals of “crime control” versus “individual liberty,” have come to represent the “balancing test” that the courts use to determine the extent to which government (through law enforcement) may intrude into citizens’ lives and deprive them of liberty in the pursuit of controlling crime.
Simply put, the courts balance the degree of police intrusion against the need for it. As police power increases, individual liberty decreases. Conversely, as individual freedoms increase, police powers and ability to effectively control crime may be diminished.
Police use of deadly force by firearms is generally confined to two areas, shooting in self-defense and shooting to make an arrest. Although deadly force can be applied by police through means other than shooting (baton, choke holds, police vehicle, etc.) The authors have focused on the use of deadly force by shooting in order to make an arrest.
In general, when a police officer has probable cause to believe a crime has occurred s/he may make an arrest. At issue here, however, is the amount of force that the police lawfully may use to effect that arrest of a fleeing suspect. Clearly, a situation like this does not involve a self-defense issue; the goal of the law enforcement officer is simply to take the suspect into custody. The use of force that may be lawfully used must be limited to that amount of force, which is necessary to accomplish that arrest.
It is undisputed by reasonable people and the courts that the ultimate deprivation of one’s freedom occurs when the suspect is killed. Garner, (1699). Of course, under certain circumstances, the police may use deadly force and effect the ultimate deprivation of one’s liberty--the shooting and killing of the suspect--and do so lawfully.
Basically four legal/policy models have provided the guidelines for the police use of deadly force in the United States. (See Alpert & Fridell, 1992; Geller & Karales, 1981; Matulia, 1982). Each of the following four models places a different emphasis on the need to apprehend versus the value of human life.
Common Law: Any Fleeing Felon Rule
Under Common Law, when all felonies were punishable by death, law enforcement had the greatest latitude in apprehending any or all fleeing felons. With American law being firmly grounded in English Common Law, statutes, which arose from legislative actions by the respective states, reflected this Common Law rule and it is this standard which was specifically challenged and rejected in Tennessee v. Garner.
In the Garner case the Court was confronted with the task of balancing the needs for effective law enforcement with individual liberties. The Court limited the use of deadly force to dangerous fleeing felons, thus prohibiting the use of deadly force against fleeing felons who were not dangerous. The Garner decision made it clear that reliance upon the Common Law rule that an officer could shoot “any fleeing felon” is inappropriate in today’s world. Garner (1702).
The Forcible Felony Rule
Certain statutes based upon the “Forcible Felony Rule” limit the police use of deadly force to those instances where the suspect is suspected of committing specified offenses, which are “dangerous or atrocious” felonies. Usually, these felonies include murder, rape, arson, kidnapping, aggravated assault, mayhem, burglary, extortion, or robbery (Matulia, 1985).
The Model Penal Code
The Model Penal Code provides another use of deadly force guideline for law enforcement. The American Law Institute in 1962 drafted model statutes for federal and state legislatures to consider for adoption. The Model Penal Code limits the use of deadly force to those situations in which the officer reasonably believes: (1) “the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or, (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.” [Section 3.08 (2) (b) (i), (iv), Proposed Official Draft (1962)].
The Defense of Life Standard
Griswold, (1985, 103) offers that the “Defense of Life Standard,” under which law enforcement may not use deadly force “unless someone’s life is in direct jeopardy even if the suspect has allegedly committed a heinous crime and was believed to be dangerous.” Clearly, this standard is the most restrictive.
These four models provide the underpinning philosophy for the use of force by law enforcement. In the Commonwealth of Pennsylvania, it is Crimes Code Section 508 which establishes the statutory parameters for the use of force by law enforcement officers. However, the authors submit that this section--as currently written-- is in conflict with current U. S. Supreme Court rulings.
Law Enforcement Training Implications
The authors’ argument that Pennsylvania and the companion states are inconsistent with established law as prescribed by United States Supreme Court rulings has profound policy and training ramifications.
It is critical that law enforcement agency policies are in compliance with both state and federal law because it is agency policy that directly guides officers’ conduct in the field. Likewise, training is the management function which translates policy to practice. It is problematic when law enforcement agencies promulgate policies which are consistent with state training commission materials, which in turn are presumed to be based on state statutes but which, as it has been argued here, are not in compliance with federal constitutional law. The policy and training issues will not be addressed by the law enforcement and training agencies until the legal foundation of these statutes are made explicitly clear.
Furthermore, since the state training commissions, apparently have not questioned the efficacy of their respective statutes and have been and continue to train police officers based on faulty statutory law, the academic, legal, and police communities must encourage and support legislative action to correct the statutory deficiencies raised in this report.
It is essential that the training/educational materials promulgated by the states’ training agencies make it clear immediately, that when such statutory provisions enacted by a legislative body [in this case--the Pennsylvania General Assembly] are in conflict with the law handed down by the highest appellate court in the land, the “applicable law” being taught through police training materials should not be limited to that solely within the state’s statutes, and without due consideration of judicial decisions affecting issues of Constitutional significance.
Finally, and perhaps most importantly, it is clear that the ambiguity within the current states’ statutes is not in the best interest of citizens, individual police officers, or law enforcement agencies. Citizens’ rights, officers’ careers, and agencies’ integrity are all at risk under existing statutory laws in these identified states.
Conclusion
It appears that Pennsylvania Crimes Code Section 508 and statutes of the other identified states arguably are consistent with the language proposed in the Model Penal Code, by the American Law Institute. The Model Penal Code was first adopted in 1962 and not published until 1980, and it was not until 1985-- the same year as Tennessee v. Garner--that the official publication of the complete text of the Code was released.
The Model Penal Code differs from established case law of the United States Supreme Court. Although, the Model Penal Code is an excellent legal research product that has been influential in creating uniformity of laws among the states, it has, in this instance, not kept pace with the evolving and dynamic law of the land. The Model Penal Code does not have the force of law and it is not a dynamic up-to-date reporting of judicial decisions.
Klotter and Edwards cautions students of law as follows:
. . . students should be advised to study the laws of the state or states in which they will practice, especially if they are different from the Model Penal Code. As the criminal law is constantly changing, only by reading and studying the latest decisions of the courts and the legislative bodies can one keep up-to-date.
Ironically, the statutes in Illinois, Missouri, and Pennsylvania and to a lesser degree the seven other states and the Model Penal Code, at first blush, may appear to be consistent with prevailing law. But Klotter and Edwards’ caveat is appropriate for both the law enforcement and the legislative communities--the relevant use of force statutes in these states must be brought up-to-date and in compliance with Garner and other applicable decisions.
The Supreme Court adjusted the balance between government intrusion and individual liberties in the Garner and other applicable decisions.
The Supreme Court adjusted the balance between government intrusion and individual liberties in the Garner decision. Statutes in the identified states do not reflect adequately this balance and allows law enforcement a level of intrusion greater than that permitted by the law of the land. The legislatures, police training and standards organizations, and agency policies must give this serious matter immediate attention. Failure to address this issue places citizens at risk of unlawful use of deadly force by police with a potential of suffering serious injuries and death. Likewise, law enforcement officers and agencies are at risk of criminal and civil litigation--all of which can be reduced significantly, if not avoided, by correcting this statutory error now.
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