Research on Deadly Force in Arrest of Fleeing Felon

    ir
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§ 6 lb ] D kadi.y F o r c k  '■ A k u k s i  o f  Fi F,F.rN(; F f i .on 
R l AI.R M 174

83 AFRSd 83

1 i

suspect did not, o( itself, wanani llie 
use of deadly force l)v an arresting 
officer, tlie court slated that it was 
only in certain aggravated circnm- 
slances that a police officer could 
sliool the person he was attempting 
to arrest, the court citing in support 
of this pro[)osiiion the case of Sauls v 
Hutto (19()9, DC La) 304 F Siipp 
124, supra. In addition, the court 
staled tiiat this conclusion was hol- 
stered by a Wisconsin statute wtiich 
provided in part that it was not rea­
sonable to intentionally use force in­
tended or likely to cause death or 
great bodily harm lor the sole pur­
pose of defense of properly.

§ 7. Exces.siveness of force— civil 
cases

[a] Single olficer
In ifie following representative ( ivil 

cases where there was a single |)ea(c 
olfner j|nvolved in attempting to ar­
rest a fleeing felon, the (ourl held 
tlial the evidence was snfii(ient to 
establish that under the circmnslamcs 
the oflicer's use of deadly lone did 
not constitute an excessive use of 
foi ( e.

1 hns, it was held in Marlyn v l)on- 
lin (I9f)4) 151 Conn 402, lf)8 A2d 
700, that a police olficer who killed a 
fleeing suspected felon had reasona­
ble cause to believe that the shooting 
was necessary to effectuate the arrest 
and that, therefore, the use of such 
force was not excessive. Alter observ­
ing the decedent driving a new and 
relatively expensive convertible in a 
recklc-ss manner and at an excessive- 
rate of speed in a thickly selllc-cl sc'C- 
tion of lilt- c ity and passing othei cars 
on iheii right, the arresting olhcei' 
puisueci the- sus|)c'cl, who succc-ecleci 
in oulclislanc iug him. .Shorllv iherc-af- 
tc‘i , the ollic c-i c ame- upon the- c oii- 
veillhle. paikeci with one wheel on 
the sidevv.ilk. its li|;hls ou .uul iiiioi 
214

cupiecl. fhe olficer then discovered 
tlie decedent coming out of an alley 
whereupon fie turned, ran away, and 
w’as subsecpiently discovc-red bv the 
officer going ovei a lenc c , 
yard of a fiouse. Wfieii oiit. • ,i i.. 
Slop or be simt, tlie cleiedeni ex­
pressed defiance to tlie command to 
stop, whereu|)on, as lie started to 
disappear over the fence, he was shot 
by the arresting officer who had no 
knowledge of neighborhood. After 
staling that ihc-se facts gave the ar­
resting officer reasonable grounds to 
believe that the decedent had com­
mit led a felony and thus, under the 
applicable statute, lawful grounds for 
arresting him. the conri said that the 
use of force likely to cause cleaih was 
ptivilegecl onl) if the force used was 
reasonablv believed to be necessary 
to effect the .irresl In aflirming a 
iucigmenl in lavoi of the arresting 
olficer in a wrongful cle.ilh action 
brought by the clc-cc'clc-nl’s aclminislra- 
lor, the court emphasi/c-cl the follow­
ing evicic-iicc- as establishing a rc-ason- 
ablc- belief in the nec c-ssily of using 
clc-aclly force-; that the ollicc-r leslilied 
that he- lost sight of the clecc-deni, 
who clisappc-aic-d in the claikness as 
he was being |)iirsiic-cl; that when, by 
using .1 Ikishlighl, the- ollicc-r finally 
located the clecedc-nl, he was already 
allc-niiiling to gel over a fence more 
than ihrc-e feel high; and that by the 
lime the- arresting officer could have 
reachc-cl the fence, the decedent 
would have been over it and into the 
next yard, fhe court furlhc-r noted 
that the- aric-sling officer leslilied that 
he shot with the- sole intent of pre­
venting the- cic-cc-clent 
as he- slarled to dro|) 
into the rc-ar yard of a 
clwc-lling ;iller he had

from c-sca[)ing 
over the fence 
mulliplc--family 
clelieci the offi-

< c-i s c o m m an d  to s top or  be- shot.  
I ' l om ibis evicIc-iK C-. the- cou i l  coii- 
c luileci ih.il c-veii iho i igh  the- dec c-ilc-lll



83 Al.R3cl Dkadi Y Fokck in Akki
k;I a I K

was only abmii 15 Ifi't liom ilic ai- 
rcslin^ ollucr .it llii' liiiK* lie was slioi 
and that two other ollners, .ippai- 
cntly not involved iti the attest, weie 
in the general neighhorhood, the jiiiy 
was fully justified in finding that the 
officer reasonably believed that tfie 
shooting was necessary to prevent the 
decedent’s escape into tfie darkness.

In [ones v Marshall (H)74, !)(. 
Conn) 383 F Su|)i> 358, alld ((^A2 
Conn) 528 F2d 132, a civil tights 
action initiated by a father to recover 
damages for the death of his son who 
was sfiot while fleeing from attest, the 
court held that had th<> action been 
brought as a wrongful death action in 
state court, there could have been no 
recovery since, under ( ’.onnectit tit 
law, the arresting officer’s (oiidiut 
was not uiueasonable. 1 he stipul.ited 
facts revealed that the attesting olli- 
cer, while on patrol in his i itiiser, 
observed a Cadillac being driven by 
three males and, through ladio con­
tact with headciiiai ters, learned that 
the automobile was a stolen vehicle, 
d he arresting officer thus followed 
the Cadillac, wfiich proceeded at a 
moderate rate of speed for a while, 
but then accelerated to about 80 
miles per hour. Alter a high-speed 
chase, the Cadillac skidded to a halt. 
Since the occupants of tfie ('adillac 
were not iinniediately visible, the ai- 
resting olficer climbed to the top of a 
nearby embankment and observed 
two males running acioss an open 
field. When they ignored the attest­
ing officer’s command to halt and 
kept running toward a nearby wooded 
area, the arresting officer, without 
firing a warning shot, fired at one of 
the fleeing suspects, the bullet stiik- 
ing and killing him. At this time, the 
arresting officer was 125 feet from 
the decedent, the intervening distance 
consisted of rough terrain containing 
a gulley and (oveic'if with bushes and

undei 1)1 usli. Neilhei the decedent not 
(he othei individuals in the Cadill.ic 
weie al ined oi spc'c the ally ihi t'aleiied 
physical injury in any manner to the 
arresting ollicei or to anyone else, 
and the automobile pursuit did not 
endanger anyone other than the occu­
pants of the two cars. 1 he court 
stated that under Connecticut law an 
attesting ollicei could use such force 
as he leasoiiably believed to be nec­
essary, imdei all the circumstances 
suiioundiug its use, to accomplish 
the arrest, but that the use of means 
likely to c.iiise death was |)iivileged 
only if the ai rc-st was lor a lelouy and 
il tlie fence used w.is rcMSoii.ibly bc‘- 
hevecl to be uecc'ssary to elleci that 
attest. Fhe court stated that the ai- 
restiiig ollic ei in this case ac tually and 
Ic’asoii.ibly bc'lieved that thc‘ clecc cleui 
was a felony suspect, the ibelt ol .i 
motor vehicle being cleliueci by stale 
law as a lelony at the time these 
c‘veuts occuiic-d, and th.il the ollicer 
actually and reasonably believed that 
il was necessaiy iiucler the ciicum-* 
stances to use dc-adly foice to apjne- 
heiicl and at tost the decedent. 1 he 
court thus colic luclc’d that under (.on- 
necticut law the arresting ollicer 
would have been piivileged to shoot 
.It the clecedeul.

In Cordon v Alexander (19(17, Fla) 
198 .So 2d .325, a civil action initialed 
by a bui glaiA suspect to recover dam­
ages for peisoiial injuries siilleied 
dtiiiug his attest, il was held that the 
aiiesling ollicer’s shooting, and seri­
ously wouudiug, the suspect was not 
unnecfssaiy or excessive loice, the 
court, on pc-lilioii ol ceitioiaii, cpiash- 
iug the' decision ol the court ol ap­
peals and diiectiiig that iudgmeiit be 
entered in favoi ol the ollicer. fhe 
evidence showed ibal on the night in 
C|uesliou, the susiic.-cl, a 13-yeai-olcl 
youth with the physical apiiearaiice ol 
ail aveiage .iilult, and a IrieucI went to

215

Itf



iii
§7[a| I ) i ;a i)I.\ 1'()iu : i

the rc;n o( a store wlieic the stispeei’s 
Iriend broke the ({lass, imloiked tlie 
rear (loot and entered tlie Ixiilding 
with intent, known to tlie snspeit, to 
take ineK'handise. Rereivinji; a rejiort 
of hreakiiiR and enteiinf>, tlie arrest­
ing oflicer proceeded to the rear of 
tlie store wliere he found the suspect 
with liis head in tlie cloor where the 
{ l̂ass had heen broken and otie foot 
laised. Not heinj:; sure whether the 
suspect was etitering or leavinjr the 
hnilding, the oflicer called upon him 
to halt, at which time the- suspect 
started to run. Alter two additional 
demands to hall, and as the suspect 
was enleritig a datk area beyond a 
stack of inteiveiiing boxes, tlie ollieer 
fired his sawed-oll shotgun in the 
general direction of the suspect’s es­
cape < mute, injnring him seveiely. 
Noting that the trial (om t’s dc-risioti 
iti favor of the suspect, as allirtned b\ 
the eonrt of appc'als, conllictc'd with 
the holding in the lactnallv simil.it 
case' of Miami v Nelson (IIKiti, Fla 
App l),'l) I8() So ‘Jd cc'it den
(Fla) I!) I So L>d 021, infra § 7|c |, the 
court stated that the lattei case had 
eoirectly ap|)lic'd the- |)ettinent law, 
the' c'onrt noting that in such case' it 
had bc'C'ii hc'icl that sinc e' the' at resting 
ollicc'is haci rc'asonablc' grounds to 
believe' that the' sns|)eet had commit- 
It'd a lelonv, thc'y were' entitled to use' 
Stull force as was reasonahlv iietes- 
sai\’ to c'llc'ct his capture', even to the' 
C'xtent of killing or wonntling. Stating 
that the issue was llms whc'thc'i under 
the facts of the record more force was 
used than W'as reasonably necessarv 
to stop and apprehend the suspect, 
the court pointc'd out that the officer, 
having been notiliecl of the' bieaking 
and c'litering, and tbc'ii obsc'i\ing bro- 
ke n glass in tbe ic .11 clooi ol the stotc' 
and the' sns|)i c t at the' sc c'lic', was 
facc'cl with the' choice' ol attesting the' 
snspc'ct or pc'iinitting his escape'. 
216

tN A kkk.s i  o r  I t.Fi-aNc; I 'f i .on
h:s ai.r :m i7 i

Continuing, the couit emphasized the 
officer’s testimony that he had called 
“hall” three limes and had only shot 
as the suspect, who was then partially 
obscured by a stack of empty boxes, 
was clisap[)earing into the darkness at 
a distance of some 25 sle|)s, the court 
noting that the suspect’s brief set tbe 
distance at from 55 to GO feet. Noting 
that the siispc'ct made the point that 
no warning shot was fired, the court 
reasonc'cl that it seemed unlikely that 
the suspect, having failed to heed the 
repeated demands to stop, would 
have been persuaded to slop by a 
warning shot. Rather, the court con­
tinued, it ap|)eared more likely that 
his steps would have hastened and 
that the possibility of his ariesi would 
have' been miiiimi/.ed. Although de­
ploring the' consec|ueiices, the court 
cone hicic'cl that, tonsicleiing all of the 
facts aticl c ire unistaiicc's, the oifnei 
was instilled in his action and did not 
CISC' niinc'c c'ssary or c'xc essivc' Icircc'.

|b| More lliaii cnie olFiccr—exce.ssivc
In the following rc'pre.sent.ilivc' civil 

case's wlic'ic' there was more than one 
peace' olhcc'i invoivc'd in attempting 
to airc'st a llc'c'ing felon, the court 
hc'ld that the' e'viclence was siillicienl 
to establish that iinck'i the circum­
stances the use of deadly force 
against the suspect conslitiiled an ex­
cessive use of force.

1 bus, in lliiion liiclem. Co. v Web­
ster (1928) 218 Ala 4(58, I 18 So 794, 
a suit for damages against a deputy 
sherifl, who died before trial began, 
and his stirety lor injuries suffered by 
a suspected fe lon when he was shot 
by the dc'[)uty sheriff when Ifeeing 
from a still, the court, in affirming a 
judgment in favoi of the sus|)c'Ct, held 
that the c'videnc c' was siillic ic'iit to 
snppoit the' jury’s cic'tc'i min.ition that 
thc' cic'put) shfiill used more force 
than was necc'ssaiy in arresting the

r



83 AI,R3(I l)l.AI)I.  ̂ I'OKCl IN AkKKSIOK l‘l I KIN<; I'KI.ON
h:» ai r H(i 171

suspect. Accoidiii^ to the ollitcis at 
(he scene, in ilie eaily aliemooii, tlicy 
came tipon a still in opcialion, which 
constituted a felony, and saw the sus­
pect, but no other peison, lleeiiifr 
from the vicinity. Siticc the suspect 
failed to stop when warned hy shots, 
he was then fired on and injured. 
According to the officers, the stispect 
admitted his operation of the still. 
The suspect, however, althotigh ad­
mitting that there was a still being 
operated, denied that he was respon­
sible for it. Instead, he testified that 
he had been fishing in a neat by river 
and had staited to the road in the 
direction of his brother’s house when 
several persons ran hy him and shoot­
ing began. I he suspect slated that he 
then began to run hut was hit when 
he was about .50 to 75 yaids from the 
still. The surety objected to that por­
tion of the trial court’s oral charge 
stating that if the jury was satisfied 
that in shooting the suspect, the cle|i- 
uty sheriff used more force* than was 
reasonably nc’cessary to capture the 
suspect and if the jury was further 
satisfied that the de|)uty sheriff was 
acting in iiis official ca|>acity at the* 
time and witfiin ifie scci|)c* of his em­
ployment, tlieu llie sus|)ect was enti­
tled to recover. In fiolding dial tliis 
charge was snlficient, tfie court statc-d 
that, if anytfiing, tlie cliarge was loo 
favorable to the surety in its use of 
the word “reasonably” as a c|iialifica- 
tion of the word “nc*cessary”  'flu* 
court explained that the applicable- 
rule was that in arresting, or attempt­
ing to arrest, without a warrant a 
suspected felon, a peace officer may, 
if it is necessary (not merely reason­
ably necessary), kill a lleeing felon 
provided he cannot otherwise be­
taken. In other words, the court con­
tinued, ill order to jnstily dc-adly 
force, the circ iirnsiances must he sue h 
as to permit a jury to conclude- that

in order to 
•scaping, not

such lorce is necessary 
prc-venl the felon from c-: 
th.it such mc-asurc- is only ieason.ihly 
necessary. Ap|)lying this standard to 
the evidence, the court |jointed out 
that there was no indication that the 
suspect was rimniiig toward some of 
the officers at the time he was shot, 
no indication that any officer made 
another c-ffort to overtake the suspect, 
and no indication that the deputy 
sherill, who actually caused the injii- 
lies, commanded the suspect to halt 
before he fired, fhe court thus af­
firmed the jury’s conclusion that ihe 
dc-puty sheriff had usc-d more force 
ihan was actually necessary to arrest 
the snspecl.

An oflicer who shot and wounded 
two juvenile- lelon siis|)ects while thev 
were lleeing from arrest was hc-lcl to 
have used c-xcessivc- force, in ('.lark v 
/ic-donis (1975, CA7 VVis) 51:5 F2d 
79, the- conn a|>plying Wisconsin l.iw 
.mcl afhrming a judgment in favor of 
the- suspects in a civil rights action 
against the arresting ollicer. fhe inci­
dent occiiired at approximately 10 
p.m. whe-n the anesiing ollicer and a 
fellow police ollicer resjiondc-cl in 
their scpiacl car to a radio dispatch 
inlorming them that an entry was in 
progress at ,i |iarlicnlar location and 
that three hl.ick m.iles wc-rc- cm the­
se c-nc-. lI|)on arriving at the clc-sig- 
natc-cl location, the ollicers loiiiid the 
iwo juvenile- suspects, who had been 
linging the front aiicl rear doorbells 
of an almost nnlighteci home, the 
owner of whic h hacl iheieiipon called 
the police. Upon ohseiving the police 
ollicers, hedh suspects fled, fhe ar­
resting ollicc-i, believing that the sus­
pects, who wc-ie live to ten yards away 
from him when he first observed 
them, had altc-mpted to commit a 
hmgl.iry, pmsiied them and ordered 
them to h.ilt. .Alter a second com­
mand to li.ili was given, one of the

217

i





IH „ „ v Ko .u :k .n Ahkkst ok Im kk.nc. Kk. on 
83 AI K ;1<1 17>83 AI-R3<1

were with... tlie..
but il with diliK< i>“ - ami cauuon the 
deceased mi^ltt have been taken , 
held the oUk cis were not )iis ilnd m 
ll,,, ,,1 l - c .  AI.IIOUK .
.loliiiR tlial lk<- oilK iis a ieu cl !'■' 
" ,e  .L e a se ,I . . . . .1.1 n»l l.a»s' " 'la a -

§71cl

U\ I / *
lu- was approa.hed by the olheers 
ernise.. Shortly h.dore this 
„lh( ers had rec eived a re pot t ol a 
a,tempted breaking and enteiing 
within the vicinity where the suspect 
was and had received a dc-sciiption 
wliich was snlhcient to desciihc- the

s - 1 -  -  -
ihe neccdscvi .....  ......wi ^ m size, maiiiui
wise been stopped /ype, pursuing the suspect, the
stances of the rase, while the et . aw.,a(lcd liim on the roof

wire arR„e.J 'o Moweye, . ,i,e
the court demuired tio i . , ,i,,. , itmorinc one ollicei s com-
the evidence for the reason t la snsp , moved horn
reasonableness of the gronnds upon n.ancl o co e
w '" h  the olheers had acted ni killing roof onto the
tbe decedent was a cpiestion lot the which

ji'ty-"' was a one-story strnc tine. 1 here was
f c 1 _ N o t  excessive ■ , a six-foot wire fence between the two

In the following reinesentative c.vi ^„„i. by this leap, the sns-
...... i...... ctwii- was moie than a  ̂ olacecl this lence between him

loll and the olficers, who then ccin- 
,landed him to stop and '
warning shots into the air. As the
suspec t^proc e eded to nm, the olhcc-is
shell at him, one hnllet striking hm 
and preventing ftn.lu-r n.c.hi .tv cm 
Ins i.art. Having cletc-imined that c 
nllicers had reasonable cause to

In the loiiowioB ■
cases where there was more. tl an a 
single peace olhc er involved m at 
tempting to arrest a lleemg t 
c e n t  hcdcl that the evidence was snl 
oiont to establish that ' " f  
cninstances the n.se ol dc-adly h.icc 
against the suspect did not constitme
an excessive use ol lot c e.

■pbns. m reversing a )nclgment
against two police olheers 

 ̂ . i- 1 ......... . \\\i .1 viisuc‘( I wuon

1 hus, ui ,> *' ollucis uiin 11 .
against two police olheers who wore snsimct had committed
sued fc.r clan.agc-s by a suspec t w W  - ^
.. .. I..,,i .iw.i while he was 11c c mg . ,,,i |,, arrest htm was legal, the

stated that the olheers wc.ie 
ontitlc-d to use such lotce as was a- 
sonahlv necessarv to ‘ ;'1> ^
oven to tl.e extetit ol killing < i 

 ̂ . • < . ,.1, tills: ni HU 1-

sued ic)! (Uima^c^ f̂y « - -  i - 
they had shot wliile he was Heeing 
from them, the conit, m '
Nelson (HK'd), Ha Api> 03)
M.'i, cert den (Ha) l ‘) l ^o ‘id  h > 1, 
helci that the use ol deadly loitc was
reasonably nec essary to pi eve nt t

........ .. I'lio record esi.ch

held ttun me ci.><- ............... , to me exc i..
reasonably necessa.y to l>'^''‘"  ‘ wonndmg him. Ai>i.l>mg 1*“ ''‘
sns,)ect’s escape. Ihe recoicl sta ocmclndcd that m oich
.. . .1 . . . 1 ... w.wiicc l. who at tin I'w. . 1...;.. m take tin
snsiiect s escape. • — 
lished that the suspect, vvho at tl 
time of the incident was l.> yeais o 
age hut over six feet m height, was 
seen wandering the streets at ‘*1'1> *• 
Imately 5 a.m. and that lie no. when

82 lint sec llcecli v Mc l.ucm ( ' 

l<)̂  P d  ‘12 1, belli inh,i § Vl<l, "hicli a .

wonnclmg min. . m'I "
nlo, the c o n n  com hided that
l o  oarrv out then duty to take t n
suspect'lino c ustody, n was neccs.sai>

escape mtc. the clarkness a.icl tlia c
suspect lia.l attcn.l.tcd to iin. osci 

.snug oli.rer wall Ins .lutomobilc

iiH



§ 7 [ c ] D kADI.V I'o KCK in A kKKSI OF l l.KKINC; I'KI.ON 
83 AI R 3(1 174

83 ALR3d

on the mol of the one-story hnilding, 
began to mn. Rejecting the siispeit’s 
contention llial he was a mere boy 
and should not have been shot for 
this reason, tlie court pointed out tliat 
the applicable statute made no men­
tion of age and that, in addition, the 
suspect had the size and appearance 
of a grown man. Noting that the 
incident occurred in what the court 
termed the “colored section” ol the 
city, the court stated that under the 
facts and circumstances existing in 
that area it appeared that the atrest- 
ing cillicers acted in gcjocl faith and 
used no exc essive fence in apprehend­
ing what to them appeared to be a 
fleeing (elon.

It was held in Alaniz v funk (Hlbl)
()9 NM 1()4, 304 r id  1033, that, as a <
matter ol law, the deadly lorcf used 
hy a dc'puty sherilf to a|)prehc'nd a 
fleeing felon was leasoiuihly necessarv 
under the circumstances, the couit 
allirming a judgment enteted on a 
directed veiclict in favot of the deputy 
sheiilf in a wrongful dc-ath action 
initiated by the aciministiator of the 
deceased felon’s estate. I'he incidc-nt 
occuric'd when the deputy sherilf and 
an fb l  agent, following the hreak-in 
of a national guard arinoiy, discov­
ered a cache cjf four of the stolen 
rifles hidden in some weeds in a ditch 
at the sieJe of a country road. Con 
cealing themselves in a cotton field 
about 80 feet from where the rifles 
were hidden, the ollicers waited lot 
someone to. letrieve the weapons. Af­
ter eJark, about two hours after the 
officers had hidden, a car cariying 
two inc'ii sto|)pecl nc'aihy, and one 
man left tlie car, walked to tlie (,i(lie, 
jiicked up the lilies, and pioieeded 
hm iiedly h,ic k towaid the cai. At this 
time, the olliceis puisued the' man. 
ident ific'cl themselves, and com 
mancled him to halt. I he man contin­
ued toward the car until the fUl 
220

agent filed a shot, whereupon he 
dropped the iilU-s. Ai the »aiite lime, 
the man lemaiiiiiig in (he car com­
menced tcj drive it away, although the 
man on the road had not as yet 
reached it. .Seeing this, the deputy 
sherilf twice fired a sawed-off shotgun 
at the car, allegedly with the intenticFU 
of hlowing out its tires. However, the 
huckshot struck the upper portion of 
the car, killing the driver. Although 
stating that generally the question of 
the leasonablencss of the arresting 
ollicer’s use of lethal force to appre­
hend a felon is a c|uestic>n of fact for 
the jury, the court noteef that in the 
instant case the trial court had found 
that the record indicated that reason­
able minds of the jury could not but 
agree that the deputy sheriff at the 
time of filing the shots was acting as 
a reasonable |)erson considering the 
( ire iinistaiK c‘s as tlic-y then appeared 
to him to he, and that the- shot was 
lirc'cl lor the- piii)>ose of |)ieventing 
the c'seape ol one whom he ic'ason- 
ahly hc'lieved under all the circum­
stances to he a felon. In agreeing 
with this finding, tlie court declared 
that it was c|iiile obvious that unless 
something was clone to stop the for­
ward o|)eration of the car, the occu- 
|)anl thereof would have been able to 
c'seape and perhaps never be appre­
hended. file court pointed out that 
the fact that the ollicers might have 
placed themselves differently, or for­
mulated a plan that would have been 
more certain of success withciut the 
use of firearms, were matters of retro­
spect which were thouglit of by 
judge's and kiwyc'is after the occur- 
rc'iicc', hut tliat in thc' day-liy-clay work 
ol an olliic'i. it could haiclly be ex­
pected th.it c'veiy airc'st oi .ittenipted 
aiic'st could lie ellectc'd with thc'oreti- 
c ,il pel fee tioii.

.Shooting and killing a suspect as he 
w.is Ih'C'ing from a b.ikery he had



Ilf
mif,
Olll-

I ilif
yet

|)uty
i n̂in
ition

the
II of 
ugh

a of 
ling 
l)ie- 

(oi 
Ihc 

and
ÔIl- 
t)iit 
Ihc 

j as 
ihc 

lied 
was 
ling
Oll-
am- 
mg 
i(‘(l 
less 
lur- 
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ihal 
ivc 

ior- 
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Ihc 

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eli-

he

83 ALR3(1

been al(ein[)ting to liurglai i/e was 
held not to constilule exicssive loice 
in (;laik v Caiiiey ( l ‘M2) 71 Ohio 
A|)|) N, 25 Ohio 0|)s 317, 3(i Ohio I. 
Abs ()H, 42 NK2d 1)38, motion overr, 
the court reversing a judgment in 
favor of the decedent’s administratrix 
in a wrongful death action against the 
arresting oflicer. The evidence re­
vealed that the arresting ollicer and 
other ollicers having been notified 
that a hurglary of a bakery was in 
process, went to the bakery and 
found the decedent and font other 
men gathered about the reai en­
trance, the court ohseiving that from 
these facts the officers had every rea­
son to believe that the men were 
attempting to commit a burglary. 
Upon seeing the ollicers’ automobile 
lights, the decedent and his compan­
ions fled and were pm sued by the 
ollicers who repeatedly oideicd them 
to surrender and fired warning shots 
over their heads. When the fleeing 
suspects reftised to stop, the arrc-sling 
ollicei directed his file at them ,md 
killed the decedent and wounded one 
of his companions. One of the lour 
suspects escaped and was nevei a|i- 
prehendecl. Stating that a mote typi­
cal case of the |)roper means to ap­
prehend men who were admittedly 
committing a felony and lleeiiig from 
arrest could hardly be imagined, tlic- 
court |)ointed out that if police unclc'i 
such cii c iimstances could not c‘m|iloy 
the limit of force, the law tlu-n be- 
ffiencled the criminal, emouiaged 
him to fly from his dimes, and in­
sured him piotecticin if he was in­
jured while seeking to evade the con- 
set|uences of his evil doings. I'lie 
court emphasized that the fact that 
one of the suspects escaped indicated 
that Inicl the ollicers not iisc-d cleaclly 
force, all would have esca|ied.

It was held, in Beech v Malancon 
( l ‘J72, CAB lenn) 4(i5 F2cl 425, cert

den 4()‘) US 1114, 3'. 1. Kd 2d 090, 
93 S ( '.t 927, that nndei I eimessec- 
l.iw aiic'siing olhccis who shot a sus- 
pecled felon while he was attempting 
to esc ape the scene- of a burglary had 
not used excessive force, the court 
afliiining a judgment in favor of the 
ollicers in a civil rights action initiated 
by the suspect to lecover damages for 
his injuries. 1 he incident occurred 
during the night when, as the suspect 
;md a companion were attempting to 
rob a safe in a gas station, the police 
ollicers stojiped their patrol car in 
fiont of the sttttion, I'he suspect and 
his com[)anion then attem|)tecl to es- 
cape, and, although they were warned 
to halt and infoiined of the presence 
of |)olice officers, thc-v continued to 
flee. At that lime the olliceis fired 
and the suspect was wouncic-d and liis 
ccnnp.mion killed. Noting ih.n the ,ip- 
plicaiile stale statute aulhoii/eci a po­
lice ollicer to use all the nc-cessary 
means to c-llec t .m attest, the court 
concluded that the trial court had 
sulftc tent evidence- to justify its find­
ing that the ollicc-is used ônly ihe 
nc-c c-ssai y mc-ans to c-llec I the ariesl. 
Ihc- comt einphasi/c-d that the sus­
pect and Ins companion weie en- 
gage-d in the Ic-lony of s.iferobbing 
and had atic-mpic-d to esc.ipc- in ihc- 
claik of iiighl afic-i bc-ing warned that 
police- ollicc-is wc-ie picse-nt with 
guns

Applying the- same l ennessc-e slal- 
uie in an action alleging civil rights 
violations, the coini in Wiley v Mem­
phis I’olice l)c-|)i. (1977, CM) lenn) 
518 F2cl 1247, allirmed a judgment 
holding ih.il two |>olice ollicc-is who 
shot and killed a )ouili who was ob- 
sc-rved bin glai izing a sporting goods 
store- and snhsec|iic-ml\ aiic-mpied to 
flee h.icl reasonable- grounds to use 
eleadlv force in ailc-mpting to |)revenl 
the vouth’s e-sca|)c.-, 1 he court ol)-
sei vecl lliat the- burglary oc c iiricd on

221



§ 7 [ c ] Dkadi.y Kokcf. in Akrf.si of Fi.ffini; Ffion 83 AI,R3d
ai r 3(1 174

h:’

! i

a dark, rainy night and tliat ihc 
youths engaged in the felony, ignor­
ing the oflicers' commands to liah, 
ran into a large drainage ditch full of 
brush and debris which would have 
facilitated iheir escape had the offi­
cers tailed to lire at the fleeing sus- 
pects. Moreover, the court pointed 
out, the oflicers had no way of know­
ing whether the suspects were armed 
and a “stash” of shotguns ;md ammu­
nition taken from the sporting goods 
store was in fact found near the t)ody 
of the decedent. Since the youth was 
actually seen by the officers to be 
engaged in the commission of a fel­
ony, and given the c'lenient of dangei 
to the oflicers themselves, iheie could 
be iKj (jueslion, the court held that 
the olivets acted on leasonatrle 
grounds.

An arresting ollic ei who shot and 
killed a suspect after the suspect had 
atlem|)ted to tun him down in an 
automobile was held not have em­
ployed excessive force, in Sniilh v 
Jones (1973, DC I'enn) 379 F Supp 
201, alfcl wilhoni op (CAO Tenn) 497 
F2cl 924, the (onri applyijig 1 ennes- 
see law and dismissing a civil rights 
action for damages initialed t>y itic- 
mother of the deceased suspect. Ttie 
arresting officer ;mcl another officer 
were on night patrol when they le- 
ceivetl a report over their cat radio 
conceiiiing the disapitearance of a 
police vehicle. It later turned out th;it 
this vehicle had been taken by the 
susiiect, who had chiven it a short 
distance before abandoning it and 
getting into a station wagon chiven by 
two of his fiic'iicls. However, believing 
that he had left some jteisonal pro|)- 
erty in the jtolicc’ vehicle, the suspect 
and his liiends ic-iuineci to wheic the 
vehicle was jtaiked, tmd the diivc-i of 
the station wagon w'ent to chc-(k the 
[)olice car, leaving the stispc'cl, who 
was in the middle of the fioni seal, 
222

and the other young man in the sta­
tion wagon. It was at this point that 
the arresting officer and his partner 
arrived at the scene. Upon seeing the 
police vehicle and the station wagon, 
the arresting cifficer stopped his car a 
few feet in front of, and to the side 
of, the station wagon, the driver’s 
side of the arresting officer’s vehicle 
being to the left front of the driver’s 
side of the station wagon. I'he arrest­
ing officer left his vehicle and slep|)ed 
in fioni of the station wagon, advising 
the two men in it to hah, at which 
time the suspect, who had moved to 
the driver’s position of the station 
wagon, accelerated the vehicle from 
its siop|)ecl position directly toward 
the iiiresting officei, even though he 
was c learly visible and was dressed in 
a policeman’s uniform. With the sta­
tion wagon beating clown on him, the 
at t esting offic er, w4to had drawn his 
gun on alighling fioni the police vehi­
cle, fired two shots through the wincl- 
shic4(l of the station wtigon. lie then 
iiimped lot s.ifeiy, but was struck by 
the vc4iicle on his Ic4i hand. Me then 
liiiiied and filed four aclclilional shots 
towaicl the fleeing vehicle. One of the 
six shots filed enleteci the vehicle and 
killc-d the siis|)ecl, the couil noting 
that it w;is not possible to determine 
which shot had been the fatal one. 
.Staling that the shooting was not ex­
cessive if the airesling officer had 
leasonable grounds to believe that 
the suspect had committed a felony 
and if the shooting was necessaiy for 
his apprc4iension, the court, after not­
ing that the oflicer had reasonable 
grounds tc> Itelieve that a felony had 
fteeii committed, namely ;m at- 
lenipiecl homicide on himself, con- 
cluclecl that the- sfiooling was neces­
sary foi the- a|)|)iehensic)ii of the stts- 
pec l. 1 he cc)uil emphtisized that there 
was no evidence- shetwing that the 
airesling officc-r and his |)aitner knew



KV

83 AI,R3(1 Dkadi.y I'onch in Aimu
k:i ai k

that ollici |)oli(f olluois were |)rcsi iii 
in the imniediaie vitiniiy, dial die 
ofTicers (oiild liave reasoiiahly as­
sumed that die sus|)e(t, who liad ai 
tempted to iiin ovei a jiohie ollieei 
in his elFoit to esca|)c arie.sl, was a 
desperate man, and tliat if tlie arrest­
ing officer fiad not sliot the snspei t 
under the aggravated cirniinstaiues 
existing, a cfangeroiis, high-speed 
chase tluoiigfi the city streets woiitcf 
likely have ensued. Such a high-speed 
chase of an apparently des|jeiate 
man, the court ofiserved, w'ouhl have 
endatigered the lives of the fleeing 
felon, the pursuing police ofliceis, 
and innocent drivers and |)edestiians. 
The court tiuis conduded that the 

arresting oflicer (ould reasoiiahly 
fiave (iniduded that the drasiit me.iiis 
used were necessary for die a|)|ire- 
hension of the suspect, the (ourt not­
ing that siidi condusion was in ac­
cord with I ennessee law whic h pro- 
vitied that, in arresting for felony, a 
police oflicer, acting without a wai- 
raiit, may, if iic-cc-ssaiy, kill a felon 
after lie resists or (lees if Iw c.iiiiiot 
otlierwise he takc‘ii.“

An arresting officer was held not to 
tiave acted unieascjiiahly in shooting a 
person fleeing from a moonshine still, 
in I hompson v Norfolk X; \V K Co.

IICl W Va 70,'i, 1H‘J  SK 880, 
the couit reveising a judgment 
against the ariestiiig officc-r in an ac­
tion by the injured siisjiec t to recovei 
damages lor injuries sustained fioiii 
the shooting. On the morning aliei 
receiving information that seveial oil 
drums had recently been stolen from 
a railway company, the airesiing offi­
cer and several other policemen, siis-

83. But see I.ove v Itass {l!)l.'2) I t.5 
Tenn 522, 238 .SW !M, supra S 7|l)|, also 
involving an airesi by nioie than one 
officer Inn in wliicli the conn, in alliitiling 
the ievers,il ol ,i jndgineni in l.ivoi of the

St or  I t rriNc. I'ri.oN § 7 (c l
3.1 171

|)ecliiig that the chums wene used (or 
illegal inooiishiiiiiig, went into a 
mountainous area wheie illegal stills 
weie lepoiti'd to be in operation. 
.Shortly alter leaving iheii car and 
continuing on loot, they came in sight 
of two stills, the lower one idle, Imt 
tfie upper one, about .50 feel from the 
first, being in operation and attended 
by two men, who immediatelv lied. 
One of the suspects, wlio was about 
50 Ol 00 feet from the olhcers, was 
coiiimanded to hall but paid no heed; 
a total of four shots was then lired by 
tlie pursuing olhc ers, and that siisjiec t 
was hit ill the leg; the othei sus|>ect 
escaped. .Although noting that the 
evidence was confusing as to which of 
the pmsuing officers hit the suspect, 
ot whethc'r he was wounded liom a 
shot fired by otlmi olhcc-ts in the’ 
aiea, the couit statc'd that even as­
suming that the oliic er siic-cl w,is i e- 
spoiisible lor the suspect’s wound, 
the- c|Uc-stioii was whethei the use of 
such lord' was justiliable iiiidei tlic- 
c It c timstauc es. 'f lu* com t poiutc-d out 
that at commciu law an ollicei coiticl 
woiitid, Ol even kill, a lleeitig Ic-loii if 
such coiiise was necessary to ellect 
aii c-st and pi event esc.i|)e. Ilowevei , 
continued the couit, extreme mea- 
siires were always to be cautiously 
employed by an ollicei since he did 
not liave the ultimate aulhoiitv to 
judge- the iiec c‘s.siiy ihc-i c lot . Noting 
that an oliicer is piesumed to have 
acted III good laith, the couit cau- 
lioiied that when his conduct came 
later to be weighed in the coolness of 
piclic ial surroundings, and jieihaps in 
a conleience of the judges of an ap­
pellate tiibunal, then the- mistake 
must not be made- ol ex.ihiating the

aiiesliiig ollicei, bc-lcl that the evidence 
was snllicienl to ic'cpiiie the c|ueMion ol 
the c'xc c's.sis eness ol the loi ce employc cl 
to be- dec ided bv ibe jmv.

223

I*



I f

r  ■

i i

§ 7[c] DkaDI.V I'ORCK IN .AkKKSI Oh
8:l AI R 3(1 171

((jiuliict solely (roiii llic viewpoiiii ol 
the latter enviioimient, hiil (hat in­
stead the appr.iisal must he made in 
the lit̂ lit o( (he pressinf> eiuiim- 
slanees as the ollieer saw them. A[)- 
plying these priiuiples to die present 
case, the conit pointed out that the 
sus|)e<l was a lleeing lelon whose 
identity was unknown to oUieers and 
who was fonnd in the tugged snr- 
rotmdings o( a mountain gorge where 
there was no |K)ssihility of overtaking 
him. Asking whethei (he oditers 
should hiive peiinitted him to escape 
when he relnsed (heir command to 
halt, the court pointc‘d out (hat such 
eonise not only would have involved 
(he risk of the sns|)e(('s never being 
hronght to jnstice, hnt ;ilso woiilcl 
have involved personal risks to them­
selves cine to the [lossihility of his 
later amlnishing them, the coiirt not­
ing that it was a matter of common 
knowledge that thronghoni (he years 
men who secicteci themselves in (he 
vastnesses ol the mountains lot (he 
purpose of elic it distillation of spirits 
had not heen hesitant to take (he lives 
ol officers atlem|>ting to hting them 
to Jnstice.

Im.kkinc; Fki.on 83 Al.R3d 83

§ 8. — Criminal cases 

[a] Excessive
In (he following lepresentative 

criminal cases where there was more 
than a single peace ofliccr involved in 
attem|)ting to arrest a fleeing felon, 
the court held that the evidence was 
sufheient to estahlish that under (he 
circumstance's (he use of dc'adly force 
against the snsiiect constitnted an ex­
cessive use ol Idle e.

riuis, oflicers who lired 8 to 20 
shots at a vehicle whose* ocenpants 
they snspc'cted of committing the lc-1- 
ony ol intiochicing alcohol into the 
comity, ihc'ic'hy killing one ol the 
ocenpants ol ihc' vehicle-, were held lo 
have ntili/c'd c'xcc'ssivc' lorcc', in (iasile 
224

V l.ewis (1018, CA8 Okla) 2,54 F 917, 
the court a|)plying Okhihoma law and 
allirniing a Jncigment dismissing the 
olliceis’ petition for a writ of' haheas 
corpus. Acting cm an aiionynioiis tip 
(hat alcohol was going to be brought 
into the coniity on a certain day, the 
oflicers, in the alternoon, |iositioned 
themselves on the road normally used 
for this |)tirpose at a point approxi­
mately live miles Iroin the town in 
which (hey lived. Upon seeing a cat 
a])pi c)ac hing and recognizing the car 
and 3 ol its 4 occupants, the ollicers 
orcleieci the vc-liicle to halt and when 
it did not, liic-d approximately 8 to 20 
shots at it, one ol the bullets entering 
the vehicle and killing one of the 
occn|)an(s. I'lie surviving ocenpants 
of the vehicle testified that they saw 
no motion oi comnuind indicating 
that they slionld halt and that all they 
heard w,is a comm.md Irom one of 
the' olhceis as thc'y passed to kill them 
all. Ihc- comt clecl.iieci that conced­
ing th.il the ollicc'is wc'ie anthori/.eci 
to ariest the occn|)aii(s of the vehicle 
without a warrant lor the felony of 
introducing licpioi into the county, 
their anihoiity included the lawful 
power to use such force as they then 
had reasonable cause to believe, and 
in the exercise- of their sound discre­
tion did honestly believe, was neces­
sary to make the- arrest, (amtinuing, 
the court explained that the measiire 
of necessary force was that which an 
ordinarily prndent and intelligent [ler- 
soii, with the knowledge of one in the 
situation of the arre-sting oflicers, 
would have dc'emed necessary. Apply­
ing thc-se pi inc i|]lc-s, the court pointed 
out that the ollicers knew three of the 
loin occiipaiiis ol the vehicle who 
wc-ic- inh.ibil.mis ol the same- town in 
which the- olliceis livccl, which was 
only live- mile s disi,inl Irom the- point 
of the- incicic'iil I'.mphasi/ing that the 
oc c iip.mis ol the- vc'hic Ic- had no



« 3  A I .R 3 d

•Jf) ! F  917^ 
‘iia law and 
Missing ilie 

<>l habeas 
Myinons tip 
be brought
Ml day, the
|«>siiioned 
Mially used 
< appioxi- 

Itnvn in 
">8 a car 
1̂ the car 
ic officers 
Mid when 
ly 8 to 20 

entering 
c of the 
■c< iipanis 
I bey saw 
•dilating 

I all they
I one of 

dl diein 
coin ed- 
bori/ed 
veliii le

lony of  
County, 

lawbd 
\ then 

‘C‘, and 
dist te­
ll eies- 

Miuiiig, 
easiire 
icb an
II per- 
in the

ibieis,
Vfiply- 
'inled 
>1 the 

who 
vn in

was 
|)oini 
I (be 

111)

83 Al.K3d Ur.AiM V Iokck in Akki
8:i At k

weapons and bad not resisli'il anest, 
that they weu- not lugiiives lioiii jus­
tice, ami that lbe\ were not ilineiants 
or strangers, but instead were lesi- 
dents ol the same town as the ollicers 
and were beading in that direction at 
the lime they were fired upon, the 
court dedaied that it was dillicull to 
conclude that a person ol ordinary 
prudeme and iiiielligence, knowing 
the facts and ciri umsiauces wliidi the 
officers knew', could have bad lause 
to believe, if be were iu their situa­
tion, or could have honestly believed, 
that be could not have act omplisbed 
the arrest of the vebide's o(cu|).mls 
in the nearby town, or lluil it was 
necessary, iu the exeri ise ol sound 
discretion, in order to make the ar­
rest, to lire into ibe aulmnobile and 
lake the dangerous cb.im e of iujuiiug 
oi killing some ol its oiiupaiils.

In .Scarbrough v State (1931) lb8 
Tenn lOb, 7(> S\V2d 10b, an action 
against a (ouslabli' for killing a flee­
ing felon, the court, iu allirmiiig a 
judgment against the constable upon 
liis convidiou of iiivobmtaiy m.m- 
slaugbler, refused to disiuib the Ju­
ly’s determination ib.il the lonstable 
bad used exiessive force iu attempt­
ing to arrest the susjied. llie evi­
dence revealed lb.it the constable bad 
received mlormaiioii ib.U the suspei l 
was iu the [lossessiou ol a stolen 
automobile and was lisliitig at a pai- 
ticular location. I'lion travelling to 
this i>lace at aiiproximaielv 10 l> ui. .it 
nigbl, the loustable .uid Ins two lol- 
leagues found the suspe<.l asleep m 
bis cat , w bidi w.is pat ked aiipt oxi- 
mately 20 yards from a campsite oc­
cupied by sever.il peisous whom the 
suspect bad visited eailier in the eve­
ning. When the oHiiers alti'inpied to 
anest till' siis|>e<l, be fled down a 
path low.Mils tins (.mi|), at whit b imu’ 
the |)msmug oIIkims oidered bim to 
ball and filed live or six shots in bis

St or l i.i r.iNt; I r i.oN § 8[a]
:t(l 171
diii'diou. Adordmg to the oicupauis 
of tin (.impsiie low'ards wbidi the 
susped w.cs miming, lour oi five 
shots were filed logellier, lollowed by 
a |).iuse and iben a single shot wbicb 
sinick and killed the fleeing susped. 
.\t the time ol ibis shot, wbicb was 
bred by the constable, the siis|)ed 
and the duistable were apiuoximalely 
T.ir feel apart. I be lousialile claimed 
ib.il all of bis shots were bred up­
ward, but lli.it be stumbled just as be 
bred the last sbol and llial be did not 
intend to kill the suspect. Ibe lourt 
staled that iu .iirestiug a iiersim lor a 
felony, a polite oibcer .icliiig wilhoiil 
a warrant m.iy, if ueiessary, kill a 
felon .diet he resists or flees if he 
lamiol otherwise be taken. However, 
the (oiiit dMiliiiiied, killing in flight is 
exiiisable only when it is shown that 
the leliMi (.iiinoi be 
b\ less diaslit me.ms. 
the evident e ol tins 
pointeil out that it 
w betlier the n.iini .il siiri lumdings 
would have m.iile it possible to easily 
taptiire the snspett allei bis Ibgbi, 
that it tiHilil not be tleierminetl 
wlielbei the snspett, who was sntl- 
tlenlv artmseil lioiii sleep, w.is rim- 
iiing to the adjoining cam|) Itii prti- 
let tion or w.is in flight from the ofb- 
tt-rs, anti ili.it tbeie was no evitlence 
wbetlier the filing ol pistols was rea­
son.ilily netessary. I lowever, noting 
that the re.isonableness ol the 
groniuls upon wliu b .in ofbt er at is is 
.1 t|iiesl;on lot the jury, the iDiiil 
lioinieil out ibai the jniy bad loiintl 
that the tonst.ible .idetl nnreason.ibly 
in aliempling to .nifsl the suspect s 
flight, f ile conn i iMit Intletl that the 
evitlentt* was snllicieni to anilioit/e 
till- jury to inlet that the sbols were 
linnet ess.It ily .md ret klessly liiftl at 
the snspet t, not while be w.is lesisting 
airesl, but wliile be w.is in Ibglit 
tow.nd die adjoining tamp.

22.5

nllmi.itely l.iken 
Willi lespeit to 
case, the dnirt 
was not shown

i'i





83 ALR3d IH „„,V l'..H.:.. IN Ak« i »' <» ►••«■•“•>
83 AI H 3(1 171

. . .  Aim arnvc.l tl.al iwo of llio paiuoi.a.us m
and then to a grove of nets. A an esu '
ordering tl.e hoy n. tl.e ^uuc u, a nearby sthool ar.ne.f
ont. the ..line., hehev.ng iha. iht <.> b „„.n
was gelling into a position lo MO. . 1,_,H a.nl ha<
him. fire.1 once into die grove- lo. I « „,on
purpcise or intimielatiiig nn. anel le . - to kill iwe. .ne.ie. he
ing him to come ont. However. t  ^heriir and several e.the.s the..
boy was mortally wounded by v̂t-m te. the school, wheie the depu y
shc)t. Although It was later ,beriH saw the person who hat ac -
that the be.ys had not been mvolytd .pe aimen.ent.oned bta -
,n the burglary, the te.urt ' - • ■ ................ ........ .batin tne omg.ai y,
t,ed the evidence as ,
olheer had acted m good lauh. that 
he honestly believed that the boys 
had participated in the felony ami 
were attempting te, escape uuo lie 
darkness, and that he was jusuhed 
believing that tl.e boy m tl.e gre.ee .. 
trees was endeave.iing to see me . 
favoral.le positie.n to les.st the a.ics _ 
Emphasi/.ng that all the shots I t 
by the anesting e.lluer we.e luce nu. 
the air lor the puipose ol ininmdaling 
the be.ys and of bringing the... to a 
stop, the ce.url condude-d that .t was 
necessary, in order to ar.yst the sus­
pect. te. file tl.e she., which caused his
death.

In reversing a juilgmeni agains 
deputy sherill win. ha.l heen con­
victed of murder le.r the she.e.t.ng of a 
fleeing susi.ect. the court, in 
Commonwealth (1<»S5) ‘̂ -̂ 7 W l.
78 SVV2el 7Hb. held that the killing 
was'nec"essary to prevent the suspeet s 
escape. I re.m the evidenc e. i vs as 
cleat that at about 3 p.m. tl.e deputy 
sheriff had seen a light ... whic h the 
suspect had another man on the 
ground and was heating him seve.ely. 
die victim of the beating having sus­
tained a laige cut in h.s head. Sc-ye.a 
other persons were also involved . 
the fight, and when word <>l •
reached the sheriirs oflne. st.n.e of 
the deputy sheriffs, inchnling tin- one 
who later did .he shooting. 
the scene and arresu-d seveial of the 
participants. In the meantime, word

iniinsKTcn ui^
iim After informing the suspett tliat
, ,^ 'w as un.ler arrest, the deputy
sherilf started toward hiiii. hut the 
susped ran and. because he was 
faster, was on the verge of getting 
away. 1 he i.urs.iing ollicers began 
shooting at the suspect until l...all> a
: i ' : ,  . . i t s c i i ,  >.y ' •l;-!'";';
sheriff when he was about "
from the suspect struck and k.llcl 
him. After concluding that the deputy 
sherill had reasonable grounds to bey 
iK-ve a felony had betn comm.llc-d. 
d,c c u r t  .stated that it be.an.e h.s 
,b,ty. c-vc-u withoui a war.ant, to ai- 
rc-s/ the suspected felon. Once the 
susi.ect ran, the c u r t  contmued. 
became the duty of the deputy she., 
and the ollicers with hi... to *’
force as was necessa.y to elhct the 
arrest. 1 he court stated that vyhe. . 
because of the snsfiect’s 
uess his escaf.e ai.f.eaied fiiobablc 
the pursuing ollicers were authoii/c 
to kill hill, rather than let liim e.scaf.c.

I be use of dea.lly fort e against a 
susf.e. I who was fleeing Iron, anotlit. 
state to avoid cnl.ne.i.ent alter con- 
victit.n for .ohbery was 1^'';;^;* ’
in flirt ham v J
Kv) 238 SW2.1 1008, cert tie.. 342 US 
m l .  Ob 1. Kd (.00. 72 S C'.t 5.5. the 
cot.;. afhr....ng a jutlgment agau.M 
tl.e susi>en who was cn v itte t l  of the 
Innale. of t.ne t.f the twt. olheers 

pursuing him. Ihe  stuviving pt.hce 
'ofluer tesl.f.etl that, after ..ot.c.ng a., 
automt.b.le f.i ..teeth..g the w.ong 
way on a one-way sireet a. af.f.ioxn





Dk MiI.V I'OKCK IN Akki 
h:\ m m83 AI.R3il

cernine thf  excessive use of deadly 
force anaiiist llie ileeiiif- felon w-is 
siiflicienl to leiiuiie dial siidi issue l>e 
decided l)> ilie )iiiy.

Tluis.  in ieversiu(> a j iidumeul 
aRainsl a poli io ofluei c . u v u i e d  of 
manslaugl.tei for die killing of a f ee- 
ing felon, die ( oui l, in Sinnell  v V ii - 
ginia CA4 Va) 55  ILd <>4 1.
held that apparendy undei \ nguna 
law die evidence was sufln lent lo 
allow die juiy lo consider whediei die 
ollicei ’s use ok deadly lon  e vvas pisli- 
fied At die time of the killing, die 
arresting olhcer and two otliei olh- 
cers had gone lo an illn ii 
Upon disiovering a nuinher of ban  els 
containing some 18,000 gallons of 
beer or mash leiineiiled and ready 
for distillation and a iiearhy lurii.Ke 
and cooper still, llie oUneis Im 
themselves in the womls and aw.iiltd 
developments.  Shoidy ihere. i l ie i , die 
deceased and a (ompanioii  ap­
proached die hail els and ex.mnne.l 
them as though lesimg their i oiiteiils. 
hut then hecaine Irigliteiied and laii. 
As one of the arresling ofl i cers  c oni- 
panions was ahoiit lo oveiiake die 
decedent ,  the decedent turned, drew 
a iiistol. and threatened to kill him if 
he came near, l l ea i ing  his comiiaii- 
ion’s call lor help, the airestii ig ofh- 
cer came to his assistance with a rifle, 
and according lo die arresling oHic . r, 
fired and killed the decedeiil  when he 
refused to drop his pistol as oidered.  
However,  according to odier wit­
nesses,  the decedeiil had siaried to 
run away again at the lime he was 
shot hy the aiiesi ing oll i icr.  On die 
basis of this evidence, die tiial c u r t  
had instructed the jiiiy dial diey 
should accinit the arresimg ofliccr if 
they found that, when he shot die 
decedent,  the latter was pointing bis 
pistol at his e m p a n i o n ,  but should

■ SI in l i I I iNc; I'l-.i.oN § ^1^1
:t(l 171
convict linn if he slioi while die decc-  
deiil w.is running aw'.iy and no longei 
ihrealening bis lomiiaiiion In hold­
ing ili.il such ins i iudion w.is erro- 
iic-ous, die apiiellale c u i l ,  alier c n -  
cluding that the decedeiil  had un- 
(iiieslioiiably c n i n i i t l e d  a felony in 
die presence of the olhcers,  stated 
that, under a well-settled rule of lavv, 
the officers had a right to use such 
force as under die i ii i umslauces ap- 
pe.ired reasonably necessary to efli-ct 
dll' dei e d e m ’s ariesi ,  me hiding die 
(ise o f  deadly force.  Noting dial die 
ol l i i ci s had attempted lo .irresi die 
decedent and his loiiipaiiion iieace- 
fully, but that die decedeiil  had pre- 
veiiied their c-ifecling die arresi by 
die use of  a deadly we.ipon before 
again fleeing, die c m  I asked what 
die olhcers weie to do ni such a 
siiuaiion. Noting dial it was a reason­
able c n i l i i s i o n  that liirilier pursuil 
would have met with li iidier lesisi- 
iiiie die c u r l  .isked whelliei il w.is 
„,cunibenl on die olliceis lo reii.am 
|,.,ssive and lo allow a man who had 
,„ , „„ , i i i ed  a felony in ilieii j . i  esenc e 

nni away .uicl escape the c i i s c -  
,|uemes of this crime. Noting dial die 
.,u> niiglii have c i i c l i id e d  that die 
arresling ofluc-r did not intend to kill 
llie decedent ,  but only to ellect his 
arresi.  and dial such acliou did not 
((iiistiiiile die use of excessive force 
under the c ire umstani es. die c u r l  
slated lliat die arresting ollicer was 
eniided nuclei the evidence to have 
diem lonsidc’i ibis as])ei i of llie c ase, 
bill dial he had been denied ibis riglil 
bv die aloi eineniioiied insiruc lion.

but see lli-ndricks v ( .onimon- 
we.ildi (1935)  lb3  Va 110L>, 178 SK 
H suiiia § 81al, also a iriiiniial case, 
where die c u r l  held that the force
niiploved 1-y die ai resting olhi er was 

1 229

i A

I'l ii