Annotated Execution Without Trial Paper by Lawrence W. Sherman

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[icaey ol' §

Execution Without Trial: Police 
Homicide and the Constitution*

Lawrence W. Shermcn**
The national debate over the State’s right Lo take life lias been 

sidetracked, in a sense, on the issue of “ capital punishment,”  er 
more precisely, execution after trial. Far more deadly in imnact is 
the body of law permitting execution without trial dirough justified 
iiouiiciae iiy police oiticcrs.Jn 1976. for examiale, no or.e v.'pr. 
caled and WfT̂  ?<ihtepced to deatli after trial, vê . nn

^estimat^d >90j3£rsons were killed hv nolire otTirers iustifiahlv vaith. 
,mit trial.' hven in the 1950s, when an average of seventy-t'wo persons 
were executed after trial each year,  ̂ the average number of police 
homicides was 240 a year, according to official statistics,^ and 480 a 
p a r  according to one unofficial estimate.' Since record keeping 
began in 1949, police actions have been by far the most frecuent 
method with which our government has intentionally taken the'lives 
of its own citizens.

The significance of police homicide is not, however, derived 
solely from its frequency. Equally important is the nature of the 
pmies that justify police use of deadly force. Unlike executions after 
tiial, executions before trial are not limited to extremely serious 
crimes such as murder, rape and treason. Twenty-four .states follow 
what is thought to be the traditional common-law doctrine, which 
permits the use of deadly force whenever necessary to prevent a 
• elony or to arre.st someone whom an officer has reasonable grounds

supported in part by tho National Institute of Mental Health. Center 
for studies in Crime and DeUnquency. Fred Cohen, David Wukitsch, Michael Gottfredson 
Kva Mark Rhmiber,; and Robert Langworthy contributed ideas and assistance. ’

Criminal Justice, State University of New York ut .<\lbanv. 
irector. Project on Homicide by Police Officers, Criminal .lustice Research Center State 

University of New York at Albany. B .A ., Denison University, 1970; M .A ., University of 
Cbicat'o, 19t0; Ph.D., Ytle University, 1976.

1. The official death records of tho National Center for Health Statistics, preserved on 
tape snow t  tola! of 295 deaths by legal intervention of police for 1976. Independent tests of 
the death record ,luln, however, reveal that they are rather consistently under-reportiiu' nolice

& I.aiieworthy, Meamrini; Homicide by Poiice o kirfrx

u .s .
. C f;i,\!. I„ 

EH'.p’t Of ,Ii
CrtiMiN0i.nt;v ,A. 
sricE, I.Aw F.n

.Il'SI ICF InKOHMVjU'N A.N'D StATISI
S'l'A'l■is; ICS Bm .i.i "iiN SD-NPS-C

2. CAriTAi, I’unishment .Srt
3. N'itai, S t.vnbncs of the
■1. See note 1 s'.ipra.

71

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VANDERBILT LAW REVIEW IV ol. 33:71 1!)801

to believe has committed a felony*—any felony, including, in at 
least one state, spitting on a policeman.® Eight states have adopted 
the more restricted version of this common-law doctrine proposed 
by the Model Penal Code;’ ten other states have adopted statutes 
allowing police to use deadly force to arrest suspects ot “ violent or 
“ forcible” felonies,* which in some states may include burglary.* 
Even under these relatively recent restrictions, most police officers 
are still legally empowered to shoot unarmed fleeing burglary sus­
pects in the back.

The available evidence suggests that when the police do use 
force, their targets are often suspects of less gprHn.s■deadly ..... t,v  ------------------ -̂------ — -̂------

T^nrov;matelv Kalt' oi the people at wnom police shots were fired 
t̂udipH h«ve not carrieu guns, anu the pi^-t^^ 

tion of those shot while fleeing is substantial.*' io  be sure, many

5. Comment, Deadly Force to Arrest: Triggering Constitutional Review 11 Harv. C.R.- 
C L L Rev. 361, 368 (1976); Note, Justifiable Use of Deadly Force by the Police: A Statutory 
Survey, 12 Wm. & Mary L. Rev. 67 (1970). On the common law, see, e.g., 2 Kale’s P.C., 76-

6. Comment, Policeman’s Use of Deadly Force in Illinois, 48 Chi.-Kknt. L. Rev. 252, 
252 (1971).

7. The Code provides, in part;
The use of deadly force is not justifiable under this Section unless:

(i) the arrest is for a felony; and
(ii) the person effecting the arrest is authorized to act as a peace officer or is 
assisting a person whom he believes to be authorized to act as a peace officer;

fifi*) the actor believes that the force employed creates no substantial risk of 
injury to innocent persons; and
(iv) the actor believes that: . ,

(1) the crime for which the arrest is made involved conduct mciudmg 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.

Model Pe.s'al Code, § 3.07(2)(b) (1962). ■ c  r  i t  (
8. Sherman, Restricting the License to K ill-R ecen t Developments tn Police Use of

Deadly Force, 14 Crim. L. Bell. 577, 581 (19/8).
9. Comment, supra note 5, at .365 n..34. r , j ,
10 The following table is constructed from four empirical studies o* po'ice use of deadly

foice- (1) A study of the 32 persons killed by Philadelphia police officers in 19,50-1960^See 
Robin, Justifiable Homicides by Police, 54 ,1. Crim. L.C. & P.S. 225 ^963). (- A study of 
911 police killings reported in newspapeis around the country in 1965-69. S^e li ljVler, ĵ r e s  

Jand in the Unitec.

' L ' l r a  anTl9T4^inE!r^^ California; Portland, Oregon; Kansas
. . .T  1 __.,4 o I /\T 1 U / 4for IVIO ana ly/** m ..... ---------------  r ' .  ̂ n r

City, Missouri; Indianapolis, Indiana; and Washington, D .C ., and m Oetroit for all of 1973 
and part of 1974, on 320 police firearms discharges in which a nullet wounded or killed 
someone. .See C. M ilton. J. Hai.i.eck. ,). L aP.DNer- C. AhreCHT. Pnnrt IKl- ok Pl-APliY FORO^ 
H9771 fhereinaftcr cited as C. M ilton). (4) A study of 5,111 incidents in which Kew York 
CRv Police UepdVLfflt'hl ollicers discharged their weapons, regardless of impact, during 1971- 
1975 See .1 Fyfe Shots Fired: A Tyoological Examination of New York City Police hirearms 
Discharges (1978) (unpublished Ph.D. dissertation, School of Criminal .Ju.stice, Stale Univer­

sity cf New York at Albany).

pollCO
precisi 
that 1
agamf

A
rule t 
law a 
clivig 
and b
impni

Event

Distill
Far
Dis
Fig
A.ss

Robla 
I Ii 
Pu

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III
Ll!

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iding, in at 
ive adopted 
le proposed 
ed statutes 
‘violent” or 
> burglary.* 
lice officers 
irglary sus-

lice do use 
IS crimes. 
were fired 
he propor- 
ure, many

1 H arv. C .R .- 
: A Statutory 
LE’s P .C., 76-

L. Rev. 252,

[V o l .  33:71

r or 13 
fficer;

isk of

I’.e

jlice Use of

36 of deadly 
1-1960. See 
A study of 
•r, Figures 

'iS-1969, 31 
ooled data 
30; Kansas 
all of 1973 
i or killed 
dly Force 
New York 
iring 1971- 
3 Firearms 
te Univer-

1980] POLICE HOMICIDE 73

police homicides occur in defense of life, although the data are not 
precise enough to determine how many. There is no doubt, however, 
that many executions without trial occur in response to crimes 
again.st property without any defense justification.

A review' of the legal history of police homicide shows that the 
rule that any felony warrants the use of deadly force is a common 
law anachronism to which our courts and legislatures continue to 
cling long after the Crown Courts have treated the doctrine as dead 
and Parliament has laid it to rest through criminal law reform. More 
important, an analysis of the constitutional status of the any-felony 
rule shows that it should be held to violate the due process clause

E vents Preceding Police U se of D eadly Force

Flvent T ype

Robin, 1963 
(N  =  32)

S T U D Y  F U N D IN G S ’’

Kobler, 1975b M ilton, et al, 1977 F yfe , 1978 
(N  =  911) (N  =  320) ' ( N z z k l l l )

'/r
Di.sturbance C a lls : 

F am ily  Q uarrels  
Disturbed Persons  
F ights  
A ssau lts
“ M an with a g u n ”

R ob bery:
In Progress  
P ursuit o f  Suspect

B u rg lary ;
In Pi ogress  
I.arceny
T am p erin g with A uto  
Pursuit o f  Suspects

T ra ffic  O ffe n se s : 
Pursuits  
Veliiclo Stops

O fficer Personal 
B usiness:

Dispute
H orseplay
Accident

Stakeout/Dfccoy
Other

Rank

( 2 ) 17

Rank

( 1)

28 (3 )

.1 ( ( I )

(4)

20 (3 )

( 2 )

30”'* (1)

0 (5) (5)
’̂■‘ Percentages m ay not total 100 due to rounding  

’’ •■ Includes other m isdem eanors not listed above

32

4
11

Rank

( 1 )

21 ( 2 )

20 (3 )

8 (5 )

4 (6 .5 )

(6 .5 )
(I)

25

Rank

( 2 )

39 (1 )

(4 )

12 (3)

7

6 (5)



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74
VANDERBILT LAW REVIEW [V o l. 33:71

that only the dcfanae-of-lifc doctnna .  appropn-
ate to govern police use of deadly force.

1. T he Any-Felony R ule; A n H istokic Anachronism

ThP oririnal meaning of the c o m m o n - k .v v  justification for horai-

meaamg. A .T . arose at a time when (U
a i i ^ S n e  weapons avanable^^^^co^

kill at any distance, (2) t_he h anT(3)

" “ i ; : ’’L T e t " - i  t n X r a n d  c ry ;, during the
e a r ,y \ t r r „ ? t h e a „ y . r e . o n y r u , e w a ^

r ' i l i l r C d t  'j ^ u t r l t S d  the crosshow to lords

--------------------- -------------■:------ T T ^ -------T 7 u r Z , , r 7 ~ K o M ^ ^  fou"d SOS'c of those shot by
11 . Of the studies cited 25% to have been coini.letely unarmed,

the police to have earned &n ■ ■ unarmed. Fyte, at lV-30,

^ t u d y .  46 S. Cal L. W.v z»a, defense-of-life standard, only 40% of the
Kobier. at iil5, also IdiltUl ! lUH, „f ,„«pects in Right or to

killings would f  «t 279, found that 71.5% of the poUce firearms
prevent a nonviolent crime. In cent . - ^ life, „ finding consistent witli
incidents in his New Yora samp e «.ere^ Henartment Other cities arc quite different. A study 
the tradition of relative restraint in tha^ i - approximately 45% of those
of Philadelphia police use ot deadly fome of the incidents the

i^SLg i r  r  b r ; ; :^ ^  a î r ; . . e d .  s

” ■“ , ? "  S l ' . l ‘ w °B r .™ ,T O «r . C o , , 80 HOT) (dtio8 W »  S „ r « s „ o o . ,  T « . « .

" '" '“5 ,"'ll''S»k 'T» iWlOT, «  16 HOT).

fSHT ,



33:71

merit 
)f the 
. lines 
ropri-

homi- 
jrrent 
before 
en (1) 
could 

ily the 
nd (3) 
it offi- 
of the 
s, and

rig the 
nives, 
iduced 
0 lords

shot by 
nnrtned. 
It lV-30, 
iy found 

lo tiave 
mpirical

1%  of the 
•lit or to 
firearms 
,ent with 
. A study 
of those 

lenta the 
initment 
re neeing 
, 1019-20

T hkatise

1 robbers, 
.0 join in

19801 POLICE HOMICIDE

, 1 16 bTpnrv VIII allowed noblemen and vreaithy
and large nuisket of Shakespeare’s time

p T  mak" an e emy thoughtless enougli to stand farther than coula nor ’^̂ ach ai u  y i.ap- London street brawl in
eighty or ninety  ̂b^^d of constables, none
the reign of Henry VIII was ^ used in
of whom wero “" " f  ”  ^ " ‘'“P,„ol„,ical context, then, thehand to hand ;nnnhat la  Una
practical mean.ng of . d  ̂ A rtrugele, bnl it did
“ f m ^ n  t r t V ; : 7 ; : S f S  ^Ued hom a distance behind while

’ ’'‘’^ T a t  nL"ning'changed in the nineteenth century with the in­
vention of the revolver. Police officers ” '"^ e  "^efor’e'Ihe

rv < ^ “ i : f a r w : 0 : « a n t o c a r r y r e ^
r.ak used re''olvers to shoot and kill their colleagues. ^
“ ' t h : „ s i L  of army revolvers on

and did, shoot fleelne suspects who were posing no rramedmle threat

* °  of the revnlntinn in vgmon.y
exoaosion in the sc o i«c n e J g | ! ^ ^

-Tgggg^ n r l e r  the

" ' r -

16.
17.
18.
19.
20 .

L. K F N N E T rirX  A ndekson, T he G un in A merica 22 (1975). 

r ' S he? hii.i., T he S atuhuay N ight S pecial 4 (1973).

.0. k  k ™
04 (19G7); J. R ichaiideon, T u ’E N ew Y ork ^

U.oorht lh« me d  re«olv„. ®  ̂ Bisckstou. nols.l, "The Me" o<

“ . Vr ..d „  i , h , x ^ . , i ^

’ 7 ™ . s  u.s°m  s» -«  < ™



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76 \//V Nn K H BI I/r ]. A VV R E VIK VV

These chaa;,:es in the legal context of police homicide signilicantly 
altered the meaning of the common-law any-felony doctrine

rreatlv expanded the number of situations in which thechanges ir
pn1i(-e CQpId kill wit.liout Inal
in prnnnrtion betw'een th<̂ ^ ŷpnt.y.

nnfl they cre-^"^ n rliffrrence
j if tha pnrt 1rinl

^pveritv of th  ̂ penalty for nttfinnling to .>»a;arP auiasf-
While advances in weapon technology and changes in the crimi­

nal law were expanding the scope and potency of the any-felony 
rule, one of the primary reasons for its existence was fading. By the 
late nineteenth century, the rise of bureaucratic police agencies with 
the capacity to communicate information about suspects at large 
was undermining the necessity for the use of deadly force m the 
apprehension of felons. The escaping suspect of eleventh-century 
England might establish a new life in another community with little 
fear of eventual capture, and the^sacir^goal of retribution was thus 
easily frustrated by a fleeing felon. By the eighteenth century, how­
ever Justice'F i e r d i n g  waTcrrculatbig descriptions of wanted crimi- 
nals’outside of London,^" and by the early twentieth century Ameri­
can detectives consulted their colleagues in other cities about var­
ious thieves and their whereabouts.^’ The effect of the increasingly 
sophisticated apprehension techniiiues meant that it was no longer 
absolutely necessary to kill a suspect, if his identity were known, in
order to insure his eventual capture.

These changes in the scope and im.pact of the any-felony doc­
trine did not escape public notice and criticism. ^  /Vew Ygrl  ̂

. 1 * __ j ___ 4̂̂ TinUrfi cVinntinnc there.

sible future in wbi-'̂ i'* ■ ----------  , , n
~ i n  his beat, with comolpi c newer of life.and death over SUarch, witnin nis ueat., witn vi ■....it-tf - —-------

wilhin bis ramro. and armed with revolvers to execute 
on the instant, wiihout even the forms of trial or
luirt a Tiimre Itiat, to a ''pT’' oxtrnt has iie.t,------------------
^  liese changes did not escape tlie notice of the courts. As early

213.
27. 

(1937).
28. 
29.

P .  P kINGLE, HUK AND C hY 133 (IGb.D. , r .  tj c  1 1 119
T hk Pkofkssiona). T hief, iiy a Phofee.sional T hief (E .H . buthsr.and, fid.) 11

Quoted in L. Ki'..NNErr & J. Anderson, supra note 1.5, at loO. 
Quoted in M ii.i.ek, supra note 21, at 146.

as 1888 th 
inflation o' 
tion of hii 
property.” 
deadly fon 
f o r c e .Sê  
law standi 
noted, “ re 
cases on t 
meanor.” ‘ 

Mean 
abandonei 
bend feloj 
test empk

The circt 
the previ 
only in t 
serious V 
means ni 
to preuei

This prin 
Criminal 
common 
vent criin 
which it : 
original ( 
East revc 
right to k 
such a K 
reported 
kill all ft 
the restn 
it;” and 
would h;

30. t-t
31. £• 

'I’ enri. 720 f
32. l’«
33. Hi

I.,A1VS OF F.> 
nrevent Pi!,; 
formulat'.or
L J. (.^u-tr

34. Q 
33. tc

■ 'A.'Mk. •Aruj5t.-?V!«s»h'  ̂ -!■ ., p ̂ 1,. • - ‘.A. __.'V



-VV'

:i:71

intly 
The 
the 

ence 
I the

imi- 
lony 
r the 
with 
arge 
the 

tury 
ittle 
thus
lOW-
•imi-
aeri-
var-
n g iy  
nger 
n, in

doc- 
York 
lere, 
lysis 
1 his 
)ect, 
iwift 
ther 
pos- 
[lon- 
r all 
:rees 
'any

>arly

) 112

1980] POLICE HOMICIDE i I

as 1888 the Supreme Court of Alabama, observing the legislative 
inflation of crimes to felony status, pronounced that “ the preserva­
tion of human life is of more importance than the protection of 
property.” The court restricted the common-law rule by disallowing 
deadly force in the prevention of secret felonies not accompanied by 
force. '̂’ Several other decisions grappled v îth the obsolete common- 
law standard,^' but generally the courts were, as one commentator 
noted, “ reluctant to abandon a convenient pigeon-hole disposal of 
cases on the basis of whether the crime was a felony or a misde­
meanor.” '̂*

Meanwhile, the English common law had already effectively 
abandoned the absolute right to kill to prevent felonies or appre­
hend felons. It replaced the any-felony doctrine with a balancing 
test emphasizing necessity and proportion:

The circumstances in which it can be considered reasonable to kill another in 
the prevention of crime must be of an extreme kind; they could probably arise 
only in the case of an attack again.st a person which is likely to cause death or 
serious bodily injury and where killing the attacker is the only practicable 
means of preventing the harm. It cannot be reasonable to kill another merely 
to prevent a crime, which is directed only against property.

This principle was so well established in case law that by 1879 the 
Criminal Code Rill Commission took it as a “ great principle of the 
common law” that the “ mischief done by [the use of force to pre­
vent crimes should not be] disproportioned to the injury or mischief 
which it is intended to prevent.” ^̂ Moreover, a close reading of the 
original common-law codifiers Foster, Blackstone, Hawkins, and 
East reveals so many internal contradictions and exceptions to the 
right to kill all felons ’̂ that one may question whether there ever was 
such a rule. Thus, in 1965 the Criminal Law Revision Committee 
reported to Parliament that despite “ old authority” for the right to 
kill all felons, “ the matter is very obscure; . . . owing no doubt to 
the restraint of the police there is a dearth of modern authority on 
it;”  and concluded that their central proposal to reclassify crimes 
would have no effect on police powers since “ the likelihood that

so. Storey v. Stale, 71 Ala. 329, 340 (1882) (involving the theft of a horse).
31. E g., United States v. Clark, 31 F. 710, 713 (8th Cir. 1887); Reneau v. State, 70

'I'enn. 720 (1879). -----------------------------
32. Pearson. The Rieht tn Kill in Mahine Arre.sts. 28 M ich t. Rvw ova no'in)^
33. Regina v. McKay [1957] V.R. ,560, 572-73 (Smith, J., dissenting); 11 Halsbl'Ry’s 

Laws of ILnoland § H 79 (4th ed. 197C) (emphasis added). The question of deadly force to 
prevent flight is either implied in this formulation, or so far beyond the pale th.st the current 
formulations make no mention of it. See also Lanham, Killing the Fleeing Offender, 1 Grim. 
L.J. (Australia) 16, 17-18 (1977).

34. Quoted in Regina v. McKay, [1957] V.R. 560, 572-73 (Smith, J., dissenting).
35. Id. at 572.



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78 VANDERBILT LAW REVIEW IVol. 33:71

anything would turn nowadays on the distinction between felony

,T .fh“ ry: S e v ? ' t h e ’ use of the distinction rentained 
anything but As t^ e .^ y  as M

I  r ^ X Trf tlennV frnm a harflw iir-tcic7
"TTothig tha“ ‘‘the iSgisiativc bodies have a '7

enacting laws to protect their own citizens against lelons ^
the statute “ merely embodied the
force for centuries and has been universally recognized (some 
th^g that we have seen is clearly not the case m English comrnon 
law) the court rejected a broad constitutional challenge to the stat- 
utl An a?gumen^ that the statute violated the eighth amendment s
ban on cruel and —  f ” "  S a :  the
Itatute violated due^proccss protections was rejected on the erou"ds 
'that state interests served by P »«“
*u inr îvirliial’s right to trial before being killed by police.
WhUe“ recogni7dng that the Eighth Circuit had recently hisW Ibat a 
M  ar Missouri statute did violate fifth and

have been fired upon or shot by Memplns police. The Su 

" ''™ h ?S ix\ h ltc^ ,irt1 u ^ ^ ^ ^  treatment of the threshold issue of

amendment arguments that all present police homicide statu
—-------------------- - " "Z ~ OY-.i.nvicrij FkI ONJKS AND M iSOEm EANOURSCriminal U w Rfaision Commitfee, Seventh Rei ouT^t .
18 P akliamkntary P arers (House of Commons and o', ,,  o g22
W ilTv, Memphis Police Dep’t. 548 F.2d 1247 (6th Cir.), cert, demed 434 U.S.

Id. at 1252.
Id. at 1251.

Mattis v.'sehnarr, 547 t.Zd  (6th Cir.), cert, denied 434
Wiley V. Memphis Police Dep’t, o48 r.2d 1247, 1252 5,i (btn
(1977).

Wiley V. Memphis Police Dep’t, 434 U .S. 822 (1977).

______.mil .■.nil -T -̂-T—
i. - liSa,—  ̂ > .— - "  . _

19801

and cas
ling.

A.
l^h

jurispn 
tic phi 
with di 
or the 
in Bell 
to be c 
that c( 
ion of
tions f 
consti
impos 
incide 
a sho 
contii 
purpe 
assig! 
alter 
Mem 
ject) 
Men 
time

41
4

( 1)

(2)

(3)
(4) 
(51 
ag

H. H
tion
istic
agai
Of T

.-.R a. • -



o l.  H.'3:7l

■n felony

emained 
upheld a 
ad killed 
e store. 
terest in 
and that 
' been in 
** (some- 
common 
the stat- 
dment’s 
grounds 
that the 
grovinds 
iportant 
police.'"’ 
d that a 
mdment 
decision 
Circuit 

n of the 
ig felons 
Fhe Su-

issue of 
s hardly 
irt stan- 
n police 
3 eighth 
statutes

MKANOI.'RS

I U .S. 822

enied 434

1980] POLICE HOMICIDE

and case law arc constitutionally unsound are much more compel- 
ling.

II. CoNSITfUTJONAL AnaI.YSIS

A. The Charactprizatiun of Police Homicide as Punishment 
The often elusi've definition of punishment in philosophy and

jurisprudence has been a major obsession with the English linguis­
tic philosophers of this century.” "’ The definitions vary sharply, 
with distinctions focusing upon the intent of the putative punisher,' 
or the purpose ot inllicting pain or suffering.-"’ As the recent ruling 
in Bell V. Wolfish*  ̂ reveals, the i.ssue of intent has likewise proved 
to be divisive in the Supreme Court’s efforts to define deprivations 
that constitute punishment. Justice Rehne^uist, delivering the opin­
ion of the Court, held that in determining whether particular condi­
tions accompanying pretrial detention amount to punishment in the 
constitutional sense a “ court must decide whether the disability is 
imposed for the purpose of punishment or whether it is but an 
incident of some other legitimate governmental purpose.” ■'* “ Absent 
a showing of an expressed intent to punish,” Justice Rehnquist 
continued, “ that determination will turn on ‘whether an alternative 
purpose to which [the restriction] may rationally be connected is 
assignable for it, and whether it appears excessive in relation to the 
alternative purpose assigned [to it],’ (quoting Kennedy u. 
Mendoza-Martinez,-'’' apparently as the controlling case on the sub­
ject). Justice Stevens, however, pointed out in his dissent that the 
Mendoza Court also recognized that evidence of intent would some­
times be “ unavailable or untrustworthy.” ”  “ In such cases,” Justice

45. G. N kwman, T he I’ u.ni.shment Response 7 (1978).
46. Professor Hart, for example, suggests five defining characteristics of punishment:

(1) It must involve pain or other consequences normally considered unpleasant
(2) It must be for an offense against legal rules
(S) It must be imposed on an actual or supposed offender for his offense
(4) It must be intentionally administered by human beings other than the offender
(5) It must be imposed and administered by an authority constituted by a legal system 
against which the offense is committed.

H. H aht, PUNI.SHMENT A.NU R espon.sihii.ity 4, 5 (1968).
Professor Paeker, in contrast, finds that definition insufficiently clear as to the distinc­

tion between the purposes and effects of punishment, and proposes a sixth defining character­
istic of punishment; "It  must he imposed for the dominant purpose of preventing offense 
against legal rules or of exacting retribution from offenders, or both.” H. Packer, T he Limits 
OF THE Criminal .Sanction 21-23, 31 (1969).

47. 99 S. Ct. 1861 (1979). 
id. at 1873.
Id. at 1873-74.
372 U.S. 144 (1963).
99 S. Ct. at 1899.

48.
49. 
.60. 
51.



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80 VANDERBILT LAW REVIEV^ IVoi. 33:71

Stevens said “ the \M^ndoza\ Court stated that certain other 
Wheria’ inust be applied ‘to the face’ of the official action to oeter- 
inine if it is punitive.” -̂' Even Justice Rehnquist, whose opinion m 
Bell V WolfNh reveals a very restrictive conception of what consti- 
S L  p 'm lin en t, cited the seven Mendocn en ter.

AHhouLdi he did not, as Justice Marshall pointed out, ^ake mu 
CO o n  Item he nonetheless refers to them as useml gmdeposts m 

determining’ ’ what is punishment, calling them “ the tests tradRion- 
ally applied to determine whether a governmental act is punitive in

""^'"with the original intent of the Gothic chieftains in establishing 
the kill-to-arrest rule lost in history, and determination of the 
subiective intent of police officers acting within the rule vulnerable 
to “ hypoL sy and unconscious self-deception.” -  it necessary to 
urn to ^ e  criteria used in Mendoza and apply them “ to the lace 

„7poUce homicide to determine whether that action const.tutes 
punishment. The decision offered seven criteria.

l 3 ! r ! ; " r ‘‘h r s ; . t o i ’'-n h r ^ ^ ^ ^

con eeced

fcrw h eltM ^ ap i^ rf excessive in rel.lion to the el.em.tivc purpose » -
signed. .

The Mendoza Court noted that all of these criteria are relevant to 
?he inoiiry alihough they “ may often point in differing direc­
tions ” ”  All seven criteria, however, suggest that polite homici 
constitutes punishment, as is clear when each criterion -  

(1) Whether the sanction inuolaes an affirmatwe 
rcsiroint Recent pronouncements by the Court leave no doubt that 
T e  s lc t io n  oTpohee homicide constitutes “ an affirmative disabil­
ity or restraint.” It is not only a deprivation of rights, but a depric a
lion of “ the right to have rights,” "  not “
“ unique” sanction. As Justice Brennan stated, ' [i)n a society tl 
s o  r o n g ly  affirms the sanctity of life, . . .  the common view is that

52.
53. 
,54, 
55. 
,56. 
.57. 
58.

Id.
Id. at 1887 (Marshall, J., dissenting).

M. t i  I 'S '(S tev en s , ,1., dissenting); H, Packer, snpra note 45, at 33. 

372 U.S. at 168-69.

" n l n  V. Georgia, 408 U .S. 238, 290 (1972) (Brennan, J., concurring).

KesaBR

I

1980;

death
have
mciit
stalei
ent ii
defy
citiz(
actie
and
wha

The
tria
pun
cry,
m a
file
v.’if
im
He
of
wl
th
re
re
f.:
jc
0
c
V



. 33:71

. other 
deter- 

lion in 
consti- 
vringly. 
ke full 
osts in 
dition- 
tive in

iibhing 
of the 
erable 
■ary to 
: face” 
Litutes

lish-

cted

as-

ant to 
direc- 
nicide 
lined. 
iity or 
it that 
isabil-
priva- 
but a 
y that 
s that

1980! POLICE HOMICIDE 81

death is the ultimate sanction.” ''̂  Five members of the present Court 
have “ expressly recognized that death is a diiferent kind ol punish­
ment from any other which may be imposed in this country” and 
stated that “ [flrom the point of view of the defendant, it is differ­
ent in both its severity and finality. From the point of view of so­
ciety, the action of the sovereign in taking the life of one of its 
citizens also differs dramatically from any other legitimate state 
action.” ''''’ The right to life has consistently been held fundamental 
and preeminent."' Its deprivation has the same eitect no matter 
what the expressed purpose may be.

(2) Whether it has historically been regarded as punishment. 
The historical record clearly demonstrates that executions v/ithout 
trial, including the kill-to-arrest doctrine, were generally viewed as 
punishment. Thieves were often killed outright during the hue and 
cry, even after they had been captured. “ Let all go forth where God 
may direct them to go,” urged the tenth-century laws of Edgar; “ Let 
them do justice on the thief.” "̂  Suspicion sufficed to convict thieves 
without any trial at all, and “ execution in such cases often followed 
immediately on arrest.” "'’ According to the preamble to Act 24 of 
Henry VIII, it appears that the common law authorized the victims 
of crimes and attempted crimes to kill the criminal, regardless of 
whether it was necessary to prevent the felony."  ̂In the twelfth and 
thirteenth centuries “ outlaws could be beheaded by anyone, and a 
reward was paid for their heads under Richard I.” "’ Abjurors of the 
realm (felons who had escaped into religious sanctuary and agreed 
to leave the country forever) who strayed from the highway on their 
journey to the sea could also be beheaded by anyone."" In the context 
of the times in which the kill-to-arrest doctrine evolved, it was 
clearly linked to a philosophy of summary justice that can only be 
viewed as punishment.

Modern commentators have taken the same view of the histori­
cal status of the doctrine. Professor Perkins notes that “ as the felon 
had forfeited his life by the perpetration of his crime, it was quite

59.
60. 
61.

(1945):
(1886);

62.
63. 

(1973).
64.
65. 
GO.

Id. at 286.
Gardner v. Florida, 430 U .S. 349, 3.57-58 (1977) (Stevens, J., concurring).
Roe V. Wade, 410 U .S. 113, 157 (1973); Screws v. United States, 325 U .S. 91, 123 

-Johnson v. Zerhst, 304 U.S. 458, 463 (1938); Yick Wo v. Hopkins, 118 U .S. 356, 370 
Mattis V. Schnarr, 547 F.2d 1007, 1018 (1976).

Quoted in T . Chitchley, A History of Poucf, in England and W ales (2d ed. 1972). 
J. Bellamy, Crime and Flelic Order in England in the Later M iddle Ages 134

Cited in Regina v. McKay, [1957] V.R. 560, 571-72 (Smith, J. 
R. Huntsett, T he M edieval Coroner 67 (1961).
Id. at 49.

dissenting).



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V A N D E R B I L T  L A  \V R E V I E  W
[V o l. 33:71

OZ '
f i^orilv force Another commentator

logical to authorize the ubc o < _  ̂ extirpation [asj hut a pre-
on killioB neoing felons descnbed U.e exUtp
mature execution <>P,’’ ^ '''® ^ w u h  the passing of that era, proma- 
punishment for all felonies. „vere than the '‘ inevitable judg-
lure execution is of “ ' 7 = ' = T o  L  punishment,
ment.” The ^ f  ^ ^ 0 10  disproportion between
however, is not airereu
pretrial and post Anal on n 0/ scienter. The

(3) Wdref/ier It comes mtop/ay ^̂  ‘^scienter” criterion
basis and parameters of the M support the relevance of
are unclear. Of the two in fact holds that
scienter to a punishment  ̂regardless of scienter, appar-
penalties may constitute ^as cited. The holding
ently Î ny fine imposed on an import
stated that, regardless o .Up value of certain goods was still
merchant for underestimating th ^  J  Mendoza
punishment and nothing els • ^on from a federal child
only mentions in passing r know that their workers are
labor “ lax” of e -P  o^.^s who court in that
underage suggests that t associated with penalties, not with
irxea” -  n' I iS  cL  actuali; holds that punishment is o.dy rm-

— - r s
Court has held that the general Regardless
scienter was a necessary e proceed from it to infer that
of criticisms of this usage, y someone is a felon
when an officer finds for killing him, the offiĉ er
and thus has met a requis T o , officer does not have probable
finds .scienter at the same tun .  ̂ „  he does not have
cause to believe tl^ t̂ scienter is P ^
probable cause t« therefore historically presumes
S r ;  a ^ " h e  r - n t  meaning of this Mendoza crite­

rion of punishment. nromote traditional aims of pun-

67.
68 .

69.
70.
71.
72.
73.

SBssa^Ks™"-''”
E£e-E.’ “H :"See, e g., H- PtHKiNS, supra note 23, at 7 / .

582, 583 (1929).

19801

motes K 
ment” i 
Schnarr 
any-fel 
“ [t]her‘ 
to esca 
“ conset

w:
proniol 
may hi 
eviden
tion is
feiv .sa
only 1
police
that 1
can 1
from
ment
pot.hi
Man
uphe
felor
on 0
cide

All
crlr
is.

ordt
to a 
hiiv 
ent 
(19 
11.3

tni
oil
cr
(S
ze
p:



1. 33:71

entator 
L a pre- 
capital 
prema­
le judg- 
hment, 
)etween

:er. The 
riterion 
ance of 
ids that 
appar- 

holding 
import 

as “ still 
tendoza 
al child 
leers are 
; in that 
lot with 
inly im-

upreme 
'as that 
?ardless 
fer that 
a I'elon 

e officer 
irobable 
ot have 
g is not 
resumes 
za crite-

! of pun- 
-dy pro-

'‘4

19801 POLICE HOMICIDE

m £

motes retribution, the first of the two “ traditional ainis 
ment” named by the Mendoza Court. As the dissent in Mattie v. 
Schnarr a recent Eighth Circuit decision, argued in suppoit ot the 
miy-felony rule, which the court had found unconstitutional 
‘4t]here is no constitutional right to commit felonious otfemses and 
to escape the consequences of those offenses.^  ̂ In that contex , 
“ consequences” strongly implies “ just desserts, or

Whether police homicide, or indeed any punishment, actua, y 
promotes deterrence, the second of the two traditional aims named 
may be an impossible question to ansever.’ - If undisputed empirical 
eviLnee of a deterrent effect is required to evaluate whether a sanc­
tion is a punishment, then many social scientists would argue that 
few sanctions qualify. If, on the other hand, a
only be hypothesized for the sanction to be a punishment then 
poUce honLide passes the test. The assumption by legal scholars 
Uiat police homicide has a deterrent effect is ^Aected in the Amen- 
can Law Institute’s debates over the issue. The deterrence o ig 
from arrest- and the deterrence of robbery- were both specitically 
mentioned, albeit with differences of opinion. The ueterrence y 
pothesis is also implied in recent federal cases, such as Jones u 
Ifarshall/^ a Second Circuit opinion in which a three judge panel 
upheld Connecticut’s common law permitting police to kill ileeing 
felons observing that the states had the right to place a nigher value 
on order than on the rights of suspects. The only way such a homi­
cide could achieve order is through deterrence. ^

(5) Whether the behavior to which it applies is alreaay a crime. 
All of the behavior to which police homicide applies is Îread̂ y a 
crime or the officer rnust reasonably believe it to be a crime. I e 
L, however, some question about i M  c n m e p ^ ^ ^ ^

74. 547 F.2d 1007, 1023 (8tli Cir. 1976).
75. J. G .hhs, Ckimk, Punishment „ „e s t  for all offenses in
76. Professor Waite argued for exten n g ‘You are foolish . .  if you submit

order to deter flight, for otherwise “ we outrun him, outrun
to arrest. The officer dare not take God bless you.' I feel
him and you are safe. . . .  If you are fas cnminnl.” 9 ALI Procekoings 195

" "  T l u . , .  U . ™ .  H .,.d  once —

that if you are able to shoot ® ^ ™ i a 'p o s s i b i  figures at all in the commission of

prohlern of justification to use deadly force in general. Id. at 1015 n,17.
78. 528 F.2d 132, 142 (2d Cir. 1975).



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84 VANDERBILT I.AW REVIEW I Veil. H.'V.Tl

punish)n{^ As Prolessor Mikell asked in his often quoted statejiient 
to the American Law Institute:

l̂-ay I ask wliat we arc killing iUu> suspect | for when he steals an automobile 
and runs oft with it? Are we killing him for stealing the automobile? . . .  It 
cannot be . . . that we allow the officer to kill him because he stole the 
autoniobilc, because t he statute provides only three years in a penitentiary for 
that. Is it then . . . for fleeing that we kill him? Fleeing from arrest . . .  is 
punishable by a light penalty, a penalty much less than tliat for stealing the 
automobile. If we are not killing him for stealing the automobile and not killing 
nim for Deeinj ,̂ wliat are we killing him for?'*'

No matter how little .sense it makes in relation to the post-trial 
Itenalty, we are in fact killing the auto thief for the volatile combina­
tion ot felony and llight, both of which are crimes.

(6) VVhether an alternatiue purpose to which it may rationally 
be connected is assignable for it. The purposes of capture and crime 
prevention, rather than punishment, may no doubt be rationally 
connected to police homicide as alternatives to the purpose of pun­
ishment. Just as the Wolfish Court held that overcrowding and 
other disabilities im.posed on pretrial detainees in a federal jail did 
not constitute punishment because they were merely an “ inherent 
incident of the objective of insuring detainee’s presence at trial,**'’ 
it could be argued that death is merely an inherent incident to 
insuring that felony suspects are captured and that felonies are 
prevented. By this logic, death from police homicide is not a punish­
ment if the expressed intent of the officers using deadly force is to 
apprehend felony suspects.

An equally strong case, however, could be made that the pres­
ence of multiple purposes in a governmental action does not auto­
matically grant preeminence to the non-punitive purpose. One pur­
pose of prison systems in some states is the manufacture of license 
plates, but a penitentiary sentence could hardly be described as 
merely an inhe’-ent incident of a legitimate state interest in manu­
facturing license plates. Implicit in the Wolfish Court’s reasoning is 
a judgment about the primary purpose of any governmental action 
that has more than one purpose. Punishment rather than apprehen­
sion can be judged the primary purpose of police homicide. As one 
court once noted, “ ftjhe reason for . . . killing felons . . .  in at­
tempts to arrest them . . .  is obvious . . . .  [T]he safety and secu­
rity of society require the speedy arrest and punishment of a 
felon.” **'

79. A U  P kockf.dings, 186-87, quoted in J. M ichafi. & H .\ vhch.sleh, supra note 76 
SO. 99 ,S. Ct. a( 1873.

p jsu

Unlike t'r 
fiod bv the .--i. 
ble alternativ 
wliat ihe prii 
if it appear:- i 
be defined a? 
in his Wolpsl 
disparity bev 
dem oust rat tc 
must be jus;

(7) Whe. 
purpose assif. 
and the purj. 
is both signii 
tion to those 
cause, once j 
is far more ' 
Iiosed upon s 
except mure 
prevention c 
than the ev 
because mos 
of preventio 
sanction the 
chicken*’ ca 
sive.

Each o{ 
use of deadl 
punishment 
on the use ' 
ment, howe 
process reci 
though a n 
the added £ 
that review 
’nave been s 
guaranties

82. 99 S .I
83. StoiC'v
84. H'jgir.j 
8.8. Ingrah

,-X 
_ ^



IVol. 3:5;71 

d statejnent

automobile 
•ile? . . .  It 
e stole the 
tentiary for 
rest . . .  is 
stealing the 
1 not killing

le poRt-trial 
le combina-

’.y rationally 
G and crime 
e rationally 
pose of pun- 
owding and 
eral jail did 
n “ inherent 
ce at trial/" 
incident to 
felonies are 
ot a punish- 
y force is to

at the pres- 
js itot auto- 
ie. One pur- 
re of license 
escribed as 
st in manu- 
reasoning is 
sntal action 
n apprehen- 
cide. As one 
* • • . in at- 

secu-

i i i i l

1980] POLICE HOMICIDE 85

Unlike the other Mendoza criteria, this one is explicitly quali- 
fied by the .succeeding criterion, which questions ;
ble allcrnalive purpose to punishment “ P P ® f , 1 / '  
what the primary purpose of police homicide is judged <■<>/»; 
it it appears excessive in relation to a noiipunitive purpose it must 
be defined as punishment. As Justice Stevens interprets Mendoza 
in his Wolfish dissent, “ when there is a significant 
disparity between the severity of the harm to the individual and the 
demonstrated importance of the regulatory objective, . ^courts 
must be iustified in drawing an inference of punishment

(7) m oth er it appears excessive in relation to the alternative 
purpose assigned to it. The disparity between the death ot a suspect 
and the purposes of prevention (of nonviolent crimes) and capture 
is both significant and unnecessary, and therefore excessive in rela­
tion to those purposes. It is significant in the case of capture be­
cause once again, the means used to prevent the suspect s escape 
is far’more severe than the maximum penalty that wouM be im­
posed upon sentencing for all crimes (depending on the jurisdiction) 
L S t  L rd e r , treason, and rape. It is significant in the case of 
prevention of nonviolent crimes because the evil imposed î s greater 
than the evil prevented. It is unnecessary in the case of capture 
because most suspects can eventually be recaptured, and in tlm case 
of prevention because nonlethal intervention is usually possible. A 
iT o n  that takes a life to prevent the theft o -  
chicken^  ̂ cannot, in a society that values life, be other than exces
sive.Each of the Mendoza criteria point to the conclusion that the 
use of deadly force to capture felons and prevent felonies constitutes 
"unlhm ent! and is therefore subject to the
on the use of punishment. Even if it were ruled not to be punish 
ment however, it is still a deprivation of rights subject to the due 
proce’ss requirements of the fifth and fourteenth amendments Al­
though a ruling that police homicide constitutes punishment hets 
the added advantage of subjecting it to eighth amendment review 
that review is generally reached only after due process guaranties 
have been satisfied.In the case of police homicide, the due process 
guaranties are anything but satisfied.

82. 99 S. Ct. at 1899 (Stevens, J., dissenting).
83. Storey v. State, 71 Ala. 329, 341 (1882).
84 Hegina v. McKav. [19.9/] V.R. o60.
85'. Ingraha.n v. Wright, 430 U .S. 651, 671-72, n.40 (1977).

t e f  .V. K  -<■.!« A..



i

86 VANDERBILT LAW REVIEW |Vol. 36:71

B. Due Process Requirements
Although police homicide raises serious due process questions 

if viewed merely as a deprivation of rights, when recognized as pun­
ishment its apparent violation of due process guaranties is striking. 
The framers “ intended to safeguard the i)eople of this country from 
punishment without trial by duly constituted courts, and under 
the due process clause, a detainee may not be punished prior to an 
adjudication of guilt in accordance with due process of law.” ’'' The 
limitation on imposing death, under the fifth amendment, is partic­
ularly strict. It requires that “ fnlo person shall be held to an.swer 
for a capital, or otherwise infamous crime unless on a presentment 
or indictment of a grand jury.” Indeed, the Righth Circuit observed 
that a literal reading of the due process clause would mean that life 
could never be taken without a trial.” “  And that is preci.sely what 
it should mean, with respect to life taken under the authority exer­
cised on behalf of the State. A less rigid standard, however, must 
be applied when deadly force is used by an individual in accordance 
with the self-defense doctrine.'*'’ In addition to personal defense, this 
doctrine includes the defense of. “ another person against what is 
reasonably perceived as an immediate danger of death or grievous 
bodily harm to that person from his assailant.

The Eighth Circuit, the only circuit to hold that the any-felony 
rule violates the fourteenth amendment, finds this interpretation 
too extreme. “ Such a literal reading,” it stated, would tail to recog­
nize the interests of the state in protecting the lives and safety of 
its citizens,”  and therefore the court held that the situations in 
which the State can take a life v/ithout according a trial to the 
person whose life is taken are to be determined by balancing so­
ciety’s interest in public safety against the right to life of an individ­
ual.*’ Irrespective of their conclusion, the use of the balancing test 
is a fundamentally flawed procedure for determining whether the 
right to a form of due process specified in the Constitution is appli­
cable. The fifth amendment does not depend upon a showing that 
it is in the community’s best interests that the procedures be ac­
corded.*  ̂ As Professor Dworkin has observed, ‘a right against tne

United States v. I.ovett, 328 U .S. 303, 317 (1946).
99 S. Ct. at 1872.
Mattis V. Sclinarr,' 547 F.2d 1007, 1018-19 (8th Cir. 1976).
Brown v. United States, 256 U.S. 335 (1921).
40 A m . Jur. 2d Iloinidde §§ 170-71, quoted in Mattis v. Schnarr, 547 I'.2d 1007, 

1015 (1976).
91. Mattis V. .Schnarr, 5 l7  F.2d 1007, 1019 (1976).
92. Note, .Snecifyinfl the I^ocedures Required by Due l^ocess: 1 awards Limits on Jte 

Use of Interest llalancinf;, 88 H.Mtv. L. Rtw. 1510, ,524 (197.)).

86 .

87.
88 . .

89.
90.

19801

Government mu 
ity would be wor 
worse off whence 
the felon’s fiftli 
before he is exe 

The balanc 
mining how mi 
process applies, 
and the relative 
action is argual 
should lead rea: 
of executions v, 
ments specifica 
law, so there is 
when to allow c 
balance the ind 
to be deprived 
state’s interest, 
narrow interest 
individuals. W 
than jiroperly, 
or recidivistic, 
follow' that the 
is not compelli 
of trial.

The state' 
individuals is, 
priate for a b 
threat of grie- 
would lead to 
the other pers 
process of a fr 
ing test proce 
in defense of 
as individuak 
police can kill

93. Dworkin, 
Serifs 19731, quoit

94. Morrispcs 
Union v. McElroy,

95. Note, sii;
96. See note
97. .SVePn'l-'
98. Note, -s'ui



71

ns
in-
^?,-
) m

ier
an
’he
ic -
,vcr
ent
ved
life
hat
lier-
lust
inco
this
it is
/ous

lony
tion
cog- 
ty of 
IS in 
) tlie
g so- 
ivid- 
f test 
r the 
ippli- 
: that 
le ac- 
d the

:i 1007,

19801
POLICE HOMICIDE

87

Government roust be a right to do is no doubt
My »„u ld  bo worse » «  '* t^ n e s  but that should not alter
worse off whenever a ^  prand jury review and trial
the felon’s fifth amendment right to gran j
before he is executed. nrevailing method of deter-

The balancing lest that due
mining how severity of individual deprivation
process applies.*  ̂ ^ of covornmental interest in summary
and the relative even a balancing procedure
action is arguably a more restrictive scope
should lead reasonable men m d^ fourteenth amend-
of executions without ^fe without due process of
ments specifically process is due. The issue of
law, so there is no question tha P
when to allow executions without ^  «  ^^^the right not
balance the individual’s undament̂ ^̂ ^̂  , , ,
to be deprived of life general public safety, but its
state’s interest, not just the L  and lives of other specific
narrov/ interest portant
individuals. We have long no matter how serious
than property, and that no proi offenses. It should
or recidivist 1C, in protecting the property of others
S c r p : m n t : n o u p r : : t w T 'l e c u U o n w H h ^

O' ‘ " r t  stale’s inletesUn "
individuals is however, far mer^ immediate
priate for a balancing test wn balancing test
threat of grievous injury ^  state’s interest in protecting
would lead to the without the due
the other person allows it however, to adopt the balanc-
process of a trial. It is no "   ̂ ‘ ^hat police officers may kill
ing test fg'^.if.defense doctrine gives them that power
in defense of life. The sell deien the state. The
as individuals irrespective i ^^f^jeat o f  violence without
police can kill those p o s m g ^ m e d ia t e ^ -------

on the

» _______ ______ _______  ̂  ̂ J

SenoVlS73), ..oo -a  r s ^ 7 g  4^U1973); Cafeteria & Ueataurant Workers

96. S e m i t T e i  dupm and g  P 937); Comment, .upra note .9, at 378.
97. See Palko v. Connecticut 302 U .S. 319.
98. Note, supra note 92, at lo.i8-2y.



\

r

a- :

88 VANDERBILT LAW REVIEW [Vol. 33:71

violating the fifth amendment rights of those killed, just as any 
citizen can. The legitimate concern some courts have shown with 
police officer’s safety”  can, accordingly, be satisfied without a 
fleeing-felon or any-felony rule. If a fleeing felon whom the officer 
reasonably believes to be armed turns toward the pursuing officer, 
with reasonably apparent intent to shoot the officer, the officer may 
kill him under the self-defense doctrine. The fleeing-felon rule in no 
way increases the officer’s safety beyond the safeguard of the self- 
defense rule.

If a balancing test is used, however, the final and most difficult 
problem is to assess the state’s interest in insuring public safety. An 
escaped felony suspect is certainly free to commit other crimes, but 
that should not be a compelling justification for the use of deadly 
force. A released convict who has served a full penitentiary sentence 
may be equally likely to commit more crimes, but that justifies 
neither his execution nor his incarceration beyond the end of his 
sentence. Far more compelling is the deterrence argument that the 
failure to kill fleeing felons will encourage more felonies. No empiri­
cal attempt to evaluate this argument has been made to date, but 
let us assume, arguendo, that each police homicide prevents eight, 
or even eighty, robberies. Are we to measure the value of life in such 
utilitarian terms? Is it a lesser evil that a life be lost than several 
hundred or thousands of dollars be stolen? In a society that punishes 
million dollar white collar frauds with a four month prison term,'”  
it seems difficult to answer that question affirmatively.

Our primary concern, however, is with the Constitution, and 
not with the greatest good for the greatest number. Even if a balanc­
ing test determined that the state’s interest in maintaining public 
safety allowed it to execute fleeing and in-progress felons without 
trial under the due process requirements of the fifth and fourteenth 
amendments, those executions could still be ruled unconstitutional 
as either cruel and unusual punishment under the eighth amend­
ment, or a denial of equal protection under the fourteenth amend­
ment.

C. Police Homicide as Cruel and Unusual Punishment
The lack of guidance on the framers’ intent in banning cruel 

and unusual punishment makes that phrase difficult to define pre-

99. Wiley v. Memphis Police Dep’t, 548 K.2d 1247, 1251-52 (8th Cir. 1976), See also 
Terry v. Ohio, 392 U .S. 1, 23 (1963).

100. For an example of such a sentence, see the case of nur.sinf> home operator Bernard 
Bergman, reported in N .Y . Times, June 18, 1976, § A, at 1, col. 7.

"■iT,:• A;'/

19801

ci.sely." 
ishmen 
Georgic 
penal! > 
offense 
(4) infl 
ruled it
are spe 
the Fu) 
criteria 
satisfie 

( 1) 

that dc 
vious Cl 
inflictii 
trocutit 
court V 
suspect 
Nonet h 
ca.ses tl 
receivei 
not rec

101.
102.

103.
(1947); In i

104.
V. Vermon

105.
106.
107.
108.

,325 (1976) 
(1976); Pr(

109. 
(1878).

110. 
111.

1,50-51 (19' 
southern C 
Force, Poi. 

112.

jury, and t 
Kohler, Pn 
of deadly ‘ 
designated 
referred fo: 
(72ft) led



V o l.  33:71

,ist as any 
tiown with 
without a 
the officer 
ng officer, 
(fficer may 
I rule in no 

the se!f-

st difficult 
safety. An 
rimes, but 
! of deadly 
y sentence 
it justifies 
end of his 
it that the 
No empiri- 
) date, but 
ents eight, 
life in such 
lan several 
t punishes
on term,'®®

ution, and 
f a balanc- 
iing public 
ns v/ithout 
fourteenth 
istitutional 
th amend- 
th amend-

iment
ining cruel 
define pre-

976). See also 

;iator Bernard

1980J POLICE HOMICIDE 89

cisely.'®' Nonetheless, four criteria forjudging whether a given pun­
ishment is cruel and unusual can be clearly discerned in Furman v. 
Georgia'' -̂ and its predecessor cases. The criteria are whether the 
penalty is (1) inherently cruel,'"'* (2) disproportionately severe to the 
offense it punishes,'®' (3) unacceptable to contemporary society,""' or 
(4) inflicted arbitrarily.'"® None of the four seems to have been over­
ruled in the death penalty cases since Furman, and all but the third 
are specifically addressed in the opinion of the Court—a consensus 
the Furman Court lacked—in Gregg u. Georgia.'*’' Any of the four 
criteria can make a punishment cruel and unusual. Police homicide 
satisfies at least three, and on occasion all four criteria.

(1) Inherent cruelty. The present Court has consistently held 
that death is not, per se, an unconstitutional punishment.'"'' Pre­
vious courts have, however, considered whether particular modes of 
inflicting death are unconstitutionally cruel.'®® Shooting and elec­
trocution have both withstood challenges, but it is doubtful that any 
court would uphold death inflicted by a sustained beating after a 
suspect has been subdued,"® or by a drowning or a choke-hold.'" 
Nonetheless, police have used all three methods to kill suspects in 
cases that have received widespread attention, and have sometimes 
received light penalties for doing so. Yet most police homicides do 
not receive much attention or reviev/."^ Under the present any-

101. Furman v. Georgia, 408 U.S. 2.88, 258 (1972) (Brennan, J., concurring).
102. 408 U..S. 238 (1972).
103. Robinson v. California. 370 U .S. 660 (1962); Louisiana v. Resweber, 329 U .S. 459 

(1947); In re Kemmler, 136 U.S. 436 (1890); Willierson v. Utah, 99 U .S. 130 (1878).
104. Robinson v. California, 370 U .S. 660, 676 (1962) (Douglas, J., concurring); O ’Neil 

V. Vermont, 144 U .S. 323, 339 (1892) (Field, J., dissenting).
105. Trop V. Dulles, 356 U .S. 86 (1958).
106. 408 U .S. at 256 (Douglas, J., dissenting).
107. 428 U .S. 153 (1976).
108. Id. at 169; see Coker v. Georgia, 433 U.S. 584 (1977); Roberta v. Louisiana, 428 U.S. 

325 (1976); Woodson v. North Carolina, 428 U.S. 280 (197C); Jurek v. Texas, 428 U .S. 262 
(1976); Proffitt v. Florida, 428 U .S. 242 (1976).

109. See I.x)uisiana v. Resweber, 329 U .S. 459 (1947); Wilkerson v. Utah, 99 U .S. 130 
(1878).

110. See Screws v. United Slates, 325 U .S. 91 (1945).
111. See Sherman, The Breakdown of the Police Code of Silence, 14 Crim. L. B ull. 149, 

150-51 (1978) (discussing the Joe Campos Torres beating and drowning case). At least four 
southern Californian men died from police choke-holds in one recent year. See Cory, Deadly 
Force, Police M agazine, Nov. 1978, at 5, 6.

112. One study found that police homicide cases are typically not referred to a grand 
jury, and that only three cases in some 1,500 led to police officers being criminally punished. 
Kohler, Police Homicide in a Democracy. 31 J. Sue. Issues 163 (1975). A  study of police use 
of deadly force in 49 Los Angeles county police agencic-.s found that of 18 incidents officially 
designated as having been in violation of the department’s firearms policies, only one was 
referred for criminal prosecution, only two led to dismissals, two led to suspensions, and 13 
(72%) led to either a reprimand or no punishment at all. Uelman, Varieties of Police Policy:



90 VANDERBILT LAW REVIEW [V o !. 33:71

ijfi

^ .
II

. * V ill

felony rule, prosecutors are on firm ground for declining to prosecute 
police officers who beat felony su.spects to death when the beating 
is necessary to effect an arrest. Unless such action can be justified 
by the self-defense doctrine, it would seem to be an inherently cruel 
and unusual form of punishment.

(2) Disproportionate severity. The determination v.'hether a 
punishment is proportionately severe to the crime it punishes is 
essentially a moral judgment, not based on objective assessments of 
the necessity or efficacy of the penalty imposed."^ V/hen judged in 
accord with contemporary standards, police homicide is “ grossly out 
of proportion to the severity” '*'* of most of the crimes it punishes."^ 
As a former Oakland, California police chief graphically explained 
when restricting bis officers’ right to shoot fleeing burglars beyond 
the state law’s limitations:

Considering that only 7.65 percent of all adult burglars arrested and only .28 
percent of all juvenile burglars arrested are eventually incarcerated, it is diffi­
cult to resist the conclusion that the use of deadly force to apprehend burglars 
cannot conceivably be justified. For adults, the police would have to shoot 100 
burglars in order to have captured the eight who would have gone to prison. 
For juveniles, the police would have to shoot 1,000 burglars in order to have 
captured the three who would have gone to the Youth Authority."®

Comparisons to actual punishments typically imposed after 
trial would probably show that killing a fleeing suspect of any crime, 
even murder, would impose a more severe punishment without trial 
than could be expected after conviction. In the case of murder, 
treason, and rape, a state’s decision to make available the death 
penalty for post-trial punishment might mean that pretrial execu­
tion would not be disproportionately severe. But murder and rape 
do not even appear as categories in most studies of police use of 
deadly force, since they comprise such a small percentage of all 
crimes punished by police homicide. Under the proportional sever­
ity test used for the past century in Elnglish law, which embodies 
social values quite similar to our own, even fleeing murderers could 
probably not be killed justifiably in order to arrest them once they 
no longer posed an immediate threat of violence."'

A Study of Police Policy Regarding the Use of Deadly Force in Los Angeles County, 6 Loy. 
L .A X . Rkv. 1, 40 (1973). A study of police records in six cities found that of the eight percent 
of .shooting incidents judged improper by administrative reviews punishment “ generally con- 
sisted of a reprimand rather than suspension or termination.” Milton, aupra note 10, at 28. 

113. 408 U.S. at 394 (Burger, C.J., dissenting).
/d. at 393 (Burger,: C.J., dissenting).
See note 10 supra. - , ■
Milton, supra note 10, at 40.
The justification, however, is up to the jury to determine in light of all the circum-

114.
115.
116. 
117.

s'! V stances of a particular case. See 11 Hai.sbury’s Laws, supra note 33, § 1180.

1980]

IS as 
standi 
is the 
ern a\: 
portar 
tionat 
Whctl 
ity of 

(3
police 
ence'"' 
preted 
Three 
admin 
show £ 
cide ir 
lags b: 
accept 
lative 1 
cide ot 

Ui
vague 
changi 
and K( 
far bey 
defens 
mist.’'- 
wake 0
minghi
tion sti 
police

118.
119.

reasonabl'
even opmi 
quoted in 

120. 

121. 

122 .

123.
124.
125.

Birminghi 
Myers, Pc



. 33:71

»secute 
)eating 
istified 
y cruel

jther a 
shes is 
lents of 
Iged in 
,.-iy out 
shes."* 
plained 
beyond

ly .23 
dil’fi- 

rglars 
jt  100 
rison. 
have

;d after
 ̂crime, 

)ut trial 
murder, 
e death 
I execu- 
nd rape 
e use of 
;e of all 
il sever- 
mbodies 
rs could 
ace they

ity, 6 L oy. 
;ht percent 
erally con- 
; 10, at 28.

he circum-

1980] POLICE HOMICIDE 91

When analyzed from a utilitarian perspective, police homicide 
is as disproportionately severe as it is when evaluated by moral 
standards as a punishment.'"* Assuming that prevention of escape 
is the utilitarian goal served by police homicide, the fact that mod­
ern apprehension techniques have diminished considerably the im­
portance of immediate capture leaves police homicide dispropor­
tionately severe in relation to the utilitarian purposes it might serve. 
Whether viewed as a punishment or a method of capture, the sever­
ity of police homicide is disproportionate to its objective.

(3) Lack of acceptability in contemporary society. Although 
police homicide in arresting serious felons did not shock the consci­
ence"* of medieval England, the eighth amendment must be inter­
preted in light of the evolving standards of a maturing society. 
Three of four available objective indicators,'*' police department 
administrative policies, scholarly opinion, and mass public protests, 
show a considerable evolution in the attitudes toward police homi­
cide in recent years. A fourth indicator, legislative authorization, 
lags behind the others, but that alone does not demonstrate the 
acceptability of police homicide to society. Moreover, even t.he legis­
lative arena has markedly changed its approach toward police homi­
cide over the past decade.

Until quite recently, police department policies were either 
vague or silent on the use of deadly force,'** but that is rapidly 
changing. Since 1977, police policies in Los Angeles, Birmingham, 
and Houston, among others, have restricted the use of deadly force 
far beyond the limits of state law. Los Angeles adopted a modified 
defense-of-life policy after officers shot and killed a naked che­
mist.'** Houston reportedly adopted a defense-of-life policy in the 
wake of the beating and drowning of a young Chicano male.'*' Bir­
mingham adopted a rhore restrictive policy after a Police Founda­
tion study of seven cities showed Birmingham to have the highest 
police shooting rate'**—the public outcry over which lends some

118. See 408 U .S. at 279-80 (Brennan, J., concurring).
119. “ [The Court], before it reduces a sentence as ‘cruel and unusual,’ must have 

reasonably good assurances that the sentence offends the ‘common conscience,’ ’ ’ which not 
even opinion polls can measure. United States v. Rosenberg, 195 F.2d 583, 608 (2d Cir. 1952), 
quoted in Furman v. Georgia, 408 U .S. 2.38, 360 (1972) (Marshall, J., concurring).

Trop V. Dulles, 356 U .S. 86, UtO-01 (1958).
408 U .S. at 278 (Brennan, J., concurring).
Milton, supra note 10, at 45-49.
Gun Rules Tightened, L..A. Times, Sept. 9, 1977, at 1.
Cory, Police on Trial in Houston, Police M agazine, .July 1978, at 33, 40. 
Findings of Police Deadly Force Study Spark Three-Way Controuersy in 

Birmingham, I.AW Enf. N ews, .June 21, 1977, at 1, col. 1; Personal Communication with B.R. 
Myers, Police Chief, Birmingham, Alabama. (November 1978).

120.

121 .

122.

123.
124.
125.

k.
k

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Ht,:

4

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Y

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92 VANDERBILT LAW REVIEW I Vol ,  33:71

support to Justice Marshall’s hypothesis that the public is more 
likely to find a punishment unacceptable when it knows the full 
facts.

Police policies more restrictive than state law are lar from new, 
however. A 1974 study by the Boston Police Department found that 
the majority of the large cities surveyed permitted their officers to 
use deadly force only to apprehend suspects who present a threat 
of serious injury or death to someone.‘‘ ‘ In 1975 the California Peace 
Officer’s Association and the California Police Chiefs’ Association 
jointly adopted a similar p o l i c y . T h e  policy of the Federal Bureau 
of Investigation since at least 1972 has been “ that an agent is not 
to shoot any person except, when necessary, in self-defense, that is, 
when he reasonably believes that he or another is in danger of death 
or grievous bodily harm.” '̂ *' The federal Bureau of Narcotics and 
Dangerous Drugs, which operates one of the most hazardous types 
of law enforcement program s,adopted a similar policy in 1971.' '̂ 

These policies were preceded by some fifty years of nearly unan­
imous scholarly criticism of the any-felony rule. Law reviews,pro­
fessional police publications,'”  and a Presidential commission'”  all 
lobbied for a change in the rule. A more pow'erful force for change, 
however, has been the long series of public protests—often vio-

126. See also Sarat and Vidmar, Public Opinion, The Death Penalty, and the Eighth 
Amendment: Testing the Marshall Hypothesis, 1976 W is. L. Rkv. 171, 179.

127. Planning and Research Division, Boston Police Department, The U.se of Deadly 
h'orce by Boston Police Personnel, (May 3, 1974), cited in Mattis v. Schnarr, 547 F.2d 1007, 
1016 n .l9. Sec also Glance, Police Tell Firearm Policies, San Diego Union, Oct. 16,1975, (nine 
of ten cities in San Diego County employ a defehse-of-life police firearms policy). Contra, 
Leeds & Lowe, Survey Finds Few Rules on Police Use of Guns, Chicago Tribune, Dec. 6, 1977.

128. Baker, Model Firearms Policy for California Law Enforcement, 10 J. Cal. L. 
Enb'ORCkment 5 (1975).

129. FBI, Memorandum 31-72 (Nov. 21, 1972), puoted in Mattis v. Schnarr, 547 F.2d 
1007, 1015 (8th Cir. 1976). Policies more restrictive than state law are also reported in Com­
ment, The Use of Deadly Force in Arizona by Police Officers, 1973 L. and See. Order 481.

130. In the 40 year history of federal narcotics enforcement, 17 agents have been killed 
by assault in the line of duty, almost as many as in the FBI which has had at least four times 
as many agents and a longer history. J. Wii-son, The In\T!STu;ators 48 (1978).

131. Mattis V. Schnarr, 547 F.2d 1007, 1015 (8th Cir. 1976). Even these policies, how­
ever, may be ambiguous. The FBI policy reportedly goes on to allow the use of any force 
necessary to effect an arrest. Personal communication with Dr. Charles Wellford, Office of 
the United States Attorney General (Dec. 7, 1979).

132. See, e.g., Pearson, supra note 32; Safer, Deadly Weapons in the Hands of Police 
Officers, On Duty and Off Duty, 49 J. Urb. L, 565 (1972); Note, supra note 68; Note, supra 
note 5; Comment, supra note 24; Comment, supra note 6: Comment, supra note 23. Rut see 
Miller, The Law Enforcement Officer's Use of Deadly Force: Two Approaches, 8 Am. Crim. 
L.Q . 27 (1969).

133. See, e.g.. Police Policy on the Use of Firearms, T he Poi.tCE Chief, .July 1967, at
16.

134. Presidb;nt’s Co.mmission on Law Enforcement and .Administration of .1u.stice, 
Task Force Report; The Police 189-90 (1967).

19801

lent—over 
the 1960s, t 
In the 1970 
with less V 
homicide. ' 
repeatedly 
Southwest, 
Carter’s coi 
at federal 
long as the 
public outr< 

Althou) 
tests than j; 
legislatures 
lie sentimer 
states'”  hav 
of deadly for 
shootings be 
ing purposes 
lice policy, s 
five actions, 
executions v, 

(4) Arbi 
and police-ci 
and with sue 
be likened tc 
guards for th 
of death.'”  E

135. For exh 
1966. See id. ai IS

136. Killings 
1; Houston Quiet /< 
2,000 Assail Pvtice 
1978, § B, at :1. c.I 
13 col. 1.

137. Gihnar.. 
Nov. 1978, at 1.5. 1

i  138. Id. Mrt‘ 
^ Department pnw-n 
itration. From 1970, 
^rolice homicide 
('ominuniratio:! frt.’j 
November 3i/. ;S7j 
\  139. .''Vf .ViNF

140. 
ll 141.

142.

.Min.n 
Fu.ur.A.o < 
Id. «: TT'.'

i.

'  . - S ' . ' ' ’.' T . '  0 J'*?-'' ' ; :L  ■ j - ; - " "  ■ ■■ ' ‘  ‘

K
- ' -.; v T' ; ■



? more 
he full

n new, 
d that 
:ers to 
threat 
Peace 
iation 
'Ureau 
is not 
lat is, 
death 
s and 
types

anan-
pro-

all
ange,
1 vio-

'iighth

)eadly 
i 1007, 
(nine 

oritra, 
1977.
AL. L.

' F.2d  
Com - 
481. 

killed 
times

how- 
force 
ce of

'olice 
upra 
t see 
Ikim.

7, at

ricE,

. 33:71 19801
POLICE HOMICIOE

I

93

In the 1970s, police homicides have nrodn  ̂ 1 shootings.'”
with less violence, but with a clear forn '^fk°''^ Protests
homicide. New York Houston T n / /  ? Problem of police
repeatedly felt such promts thro «nd other cities
Southwest, m inority 'groupreverf r
Carter’s concern for the problem 07̂ 1 enlist President
at federal prosecution of^police for r . v f  intensified effort
long as the any-felony r u i r t v i v t  manv S  1 ^^t as
public outrage will remain legal and u that stir

Although state lem.lnf ^  prosecution.
tests than police chiefs and^mayorr^steL^'d to such pro­
legislatures have nonetheless reflpof ’ a f f  ^ growing number of
lie sentiment toward p o te  T o m ^
states'”  have adopted the eight
of deadly force to arrest. Minnesota W  £  ^'^‘ tations on the use 
shootings be reported to the state govern that all police
;ng purpo.ses.'”  Taken in conlunetion
hce policy, scholarly opinion and DubP developments in po- 
twe actions are c o n L t^ t  wlirthê ĝ t̂ ^̂ ^̂ ^̂ ^̂  
executions without trial as unacceptabTelo

and p o lice -cS S i hi «"ests
and with such arbitrariness as to he so rarely
be likened to a virtual S e r y  v s L  freakish.^u ,  J
guards for the capricious selection S  «®l‘e-
of death.'”  Even in p o lic e tp  L n t h e  punishment 

-----^ ^ 7 -T ------------------- -------P ^ e ^  with comparatively restric-
1966. fd  a r ^ ' ' ’ San Francisco.

1; (J, “  O ct 12, 1977, § A, at 17 col.
AOOO Assail Police at Black Rally Aa Off n, , Z /  ’ 1978, at 22 col 1 •

* B . . . . .  COM,

Nov. 1978, at 1^18^”  A New Zeal for Prosecuting Police. Police M agazine,

I Department ProsecuUol''o^f 5,o1i« however. Justice
W au on  From 1970 through 1976, the - d e r  the Carter ^ d m ^ !
Vol.ee homic.de was four per year; in 1977 and 197r /  '  Prosecutions for
U m n ni,cation  from Daniel F. Ri.;zel. C i J i l h t s  D w '': Personal
November 30, 1978). Division. U.S. Department of Justice\ 1.*̂n A If...   ̂ . ‘̂ UOLU.e1 •"•/'.i ov/, w.o. i f̂epanm
. 139. See M i.nn. Stat. § 609.066 dOTm. r
. 140. M ln.n. Stat. § '626 .653 supra note 5, at 368-
\ 141. Furman v. Georgia, 408 U S 9TH qm .o .
,142. Id. at 293 (Brennan, J., concurring^ ’ “ """rr in g).

•69.



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i

VANDERBILT LAW REVIEW 33:71

tive deadly force policies, the discretion that even those policies 
allow officers in the use of deadly force is so uncontrolled that people 
literally “ live or die, dependent on the whim of one man.” ''’  ̂ The 
available evidence strongly suggests that police homicide is inflicted 
in a trivial number of the cases in which it is legally available, 
through procedures that give room for the play of racial and other 
prejudices. Unlike convictions for capital offenses, there are no re­
cords kept of the number of felony suspects whose actions make 
them legally vulnerable to execution without trial. The fact, that the 
rate of police homicide was only one per 6,822 Part I Index'̂ '* arrests 
in 1975, however, provides a reasonable inference that the sanction 
is rarely used even when it is available, since the rate of flight per 
attempted arrest seems likely to be much larger. Moreover, the 
extreme rarity of occurrence alone raises a strong inference of arbi­
trariness.'^®

Despite the progressive policies of many police departments, 
many other departments still allow their officers total discretion to 
use their legal power to kill.'^" Even the departments with restrictive 
policies typically say when officers may use their weapons, and not 
when they must. Noninvocation of available legal penalities is the 
common practice in American policing, as extensive research has 
shown, and police homicide is no exception.''*^ As a Kansas City, 
Missouri police officer recently said about the control of firearms 
discretion in that department (one of the best managed police agen­
cies in the country), “ they pretty much leave it up to your own 
conscience to decide” whether or not to shoot someone v/hen their 
restrictive policy allows it.'̂ * Many police officers are punished for

143. Id. at 253 (Douglas, J., concurring).
144. Computed from National Centkr for H ealth Statistics, P ublic Health Sfirvice, 

D epartment of Health, E ducation and Welfare, V ital Statistics of the P'nitf.d States 1975 
II Mortality Part A 1-168; FBI, C rime in the United States 1975-1979. Using tlie unofficial 
estimated number of police homicides, the rate was one per 3,411 Part I Index arrests.

145. Goldberg and Dershowitz, Declarmf’  the Death Penalty Uncotintitutional, 83 Harv. 
L. R ev. 1773, 1790 (1970), quoted in Furman v. Georgia, 4Q8 U.S. 238, 249 (1972) (Douglas, 
J., concurring).

146. Until 1968, one large southwestern department employed the following policy on 
the use of a firearm, quoted in its entirety: “ Never take me out in anger; never put me back 
in disgrace.” M ilton, supra note 10, at 47. Other “ policies” have included “ Leave the gun in 
the holster until you intend to use it,” and “ It is left to the discretion of each iiidividual officer 
when and how to shoot.” Id. at 47-48.

147. K . Davis, Police D iscretion (1975); National Institute of Law Enforcement and 
C riminal Justice, Police D iscretion: A Selected B ibliograhiy (1978); Black, The Social 
Organization u[ Arrest, 23 Stan. L. R ev. 1087 (1971); Goldstein, Police Discretion Not to 
Invoke the Criminal Process: Law Visibility Decisions in the Administration of Justice, 69 
Yale L.J. 543 (1960).

148. Personal interview (January, 1979).



1. 33:71

policies 
L people 
’■« The 
riflicted 
ailable, 
d other 
J no re- 
s make 
hat the 
arrests 
motion 
?ht per 
er, the 
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ments, 
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nd not 
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ch has 
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3EHVICK, 
TES 1975 
loff'icial 
?sts.
3 Harv. 
•ouglaa,

)licy on 
le back 
: gun in 
1 officer

'NT AND
Social 

Not to 
‘icc, 69

using their guns when they should not have, but recent research' 
has found no case in which an officer was punished for not using 
force when he or she could have.

The inconsistency among police officers in deciding when to use 
force is further dem.onstrated by a recent experimental study of 
twenty-five randomly selected Connecticut police ollicers who were 
given identical information about three arrest situations. VvTen 
asked if they would be likely to use deadly force, their responses 
were almost evenly split, even though they v.-ere all making deci­
sions under Connecticut common law.''’"

In comparison to the vigorous controls on the post-trial death 
penalty described and approved in Gregg v. Georgia,''"' the use of 
deadly force by police is virtually uncontrolled. The trier of fact, 
without any information from a record keeper about what the typi­
cal police action has been in previous situations similar to an instant 
case must also determine the sentence. If decision making without 
access to that information is an unconstitutionally arbitrary way to 
impose the death penalty after the careful finding of facts at trial, 
then surely it must be so without a trial.

D. Police Homicide and Equal Protection
A final argum.ent against the use of deadly force to arrest is that 

present practices deny equal protection to blacks. The argument is 
not without its w'eaker points, for discrimination in the use of deadly 
force is methodologically difficult to prove. Nonetheless, the ex­
tremely disproportionate impact of executions without trial on 
blacks compels consideration of the argument.

According to official statistics, blacks constituted forty-six per­
cent of the people killed by official police action in 1975,'"  ̂ while 
they only constituted 11.5 percent of the population.'”  The national 
death rate from police homicide of black males over age ten in a 
recent ten year period was nine to ten times higher than the rate for

149. I ’he Project on Homicide by Police Officers, Criminal Justice Research Center, 
State University of New York at Albany, bas studied this area.

150. G. Hayden, Police Discretion in the Use of Deadly Force: An Empirical Study of 
Information Usage in Deadly Force Decision Making (1979) (unpublished paper. University 
of New Haven).

151. 428 U’.S. 153 (1976).
152. N ational Ce.nter for Health Statistics, supra note 144. The total figure for all 

minority group members is probably somewhat higher, but no official statistics for other 
nonwhites are reported.

153. B ureau of the C ensus, D epartment of Commerce, Statistical A bstract of the 
United State.s 25 (1976).

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96 VANDEA1B1LT LAW REVIEW [Vol. 3:3:71

white males."' Studies in specific cities have found even greater 
racial disparities in the rate of police homicides."^ There have been 
some attempts to explain the disparity using arrest rates for tBI 
Part I Index crimes,"" but that approach has several limitations. 
First, the power to use deadly force under the common-law rule is 
not limited to arrests for “ index” crimes. Indeed, as the empirical 
studies'-”  show, most police shooting incidents arise out of situations 
in which the initial criminal offense is clearly not an Index crime. 
Second, in many police shooting situations there is no offense re­
corded unless the police intervention precipitates more violence. 
Many violent family fights, for example, are not reported as
crimes. I5Ralthough they are reported if a police officer is assaulted.
Third, the evidence of racial discrimination in arrests undermines 
any use of arrest rates to show an absence of discrimination in police 
homicide.'"®

Even if arrest rates by race were an appropriate means of show­
ing that the disparity in police homicide rates is not discriminatory, 
they do not always match the police homicide rates. In Philadelphia 
from 1950 to 1960, for example, where eighty-seven percent of the 
police homicide victims but only twenty-two percent of the city’s 
population were black, only thirty-one percent of the arrest popula­
tion was black.""’ More recently, a study of the Chicago police found 
the police homicide rate per 10,000 arrests (for all charges) in 1969- 
70 to be 1.00 for whites and 2.01 for blacks.'"' Nationally, in 1975 
blacks accounted for forty-six percent of the police homicide victims 
and only thirty-three percent of the Part I JBI Index offense 
arrests.'”

154. P. Takagi, A Garrison State in a "Democratic" Society, in PoucB Community 
Relations 358 (A. Cohn & E. Viano eds.).

155. See note 10 supra.
156 E g., M ilton, supra note 10, at 19; Burnham, 3 of 5 Slain by Police Here are 

Black. Same as the Arrest Rate, N .Y . Times, Aug. 26, 1973, at 50, col. 3. See also The 
Management of Police Killings, Crime & Soc. Just., Fall-Winter 1977, at 34; Goldkam;}, 
Minorities as Victims of Police Shootings: Interpretations of Racial Disproportionality and 
Police Use of Deadly Force, 1 Just. Sys. J. 169 (1977).

157. See note 5 supra and accompanying text.
158. Parna.s, The Police Response to the Domestic Disturbance, 1967 Whs. L. R ev. 914.
1.59. See Black, supra note 147. The fact that the greater likelihood of police to arrest

black suspects can be largely attributed to (a) the greater tendency of blacks to be antagonis­
tic to the police and (b) the greater tendency of black complainants— who do almost all of 
the accusing of black suspect-s during street encounters with the police— to demand an arrest 
does not remove discrimiiiation in a legal sense. Neither suspect’s attitudes nor a complain­
ant’s preference constitute proper grounds for enforcement decisions. Id. at 1097-1107.

160. P^ibin, supra note 10. " '
16T R. Knoohuizen, R. Fahey, & U. Palmer, The Police and Their Use of Fatal Force 

in Chicago 21 (1972) (unpublished study).
162. National Center for Health Statistics, supra note 144; FBI, supra note 144.

1980

be n. 
tion 
W'hit
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systi
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but

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)1. 33:71

greater 
ive been
for FBI 

itations. 
vv rule is 
mpirical 
ituations 
!x crime, 
fense re­
violence, 
lorted as 
ssaulted. 
dermines 
. in police

5 of show- 
ninatory, 
ladelphia 
;nt of the 
the city’s 
it popula- 
lice found 
i) in 1969- 
y, in 1975 
ie victims 
X offense

•; Community

lice Here are 
.Set’ also The 
i; Goldkamp, 
■tionality and

. L. R ev. 914. 
olico to arrest 
be antagonis- 

) almost all of 
rand an arrest 
n  a complain- 
1097-1107.

of Fatal Force

ora note 144.

1980] POLICE HOMICIDE 97

The existence of racial discrimination in police homicides can 
be neither proved nor disproved with the available evidence. Resolu­
tion of the issue would require data on the number of blacks and 
whites who committed acts that made them legally vulnerable to 
police homicide: assaulting or threatening to assault police or oth­
ers, fleeing from arrest for felonies, participating in a riot, or engag­
ing in other specifically covered behavior.'®  ̂ Short of a mammoth 
systematic observation study'®* costing millions of dollars, there is 
no reliable way to obtain such data. A sample of the narrative ac­
counts found in arrest reports, somewhat less expensive, would be 
the next best measure of legal vulnerability of whites and blacks, 
but no such study has yet been done.

In the absence of more conclusive evidence, the demonstrably 
higher rates of police homicide for blacks strongly suggests'*® racial 
discrimination on a national basis. Although such patterns are quite 
likely to vary from one city to the next, such a variation would 
support the argument that present procedures allow police homicide 
to be administered in a discriminatory fashion.

III. S ummary and Conclusion

This analysis of police homicide and the Constitution leads to 
the conclusion that the present state laws are unconstitutional, not 
just in the common-law states, but in the Model Penal Code and 
“ forcible felony”  states as well.'*® The present laws of every state in 
the union deny police homicide victims fifth and fourteenth amend­
ment rights to due process, allow the punishment of death to be 
imposed in a cruel and unusual fashion, and appear to deny equal 
protection to blacks. The only constitutional alternative apparent 
is to remove police homicide from the realm of punishment and 
confine justification for it to the self-defense doctrine, more properly 
called a defense-of-life doctrine. In short, the conclusion is that the 
police throughout the country should adopt the first section of the 
firearms policy of the Federal Bureau of Investigation.'®’

163. Comment, supra note 5.
164. See, e.g., A.J. Reiss, T he Police and the Public (1971); Reiss, Systematic Obser­

vation of Natural Social Phenomena, in Sociological M ethodology 3-33 (H . Costner, ed. 
1971). Since police only draw their weapons once in every hundred citizen encounters (and 
patrol cars in many large cities average no more than ten encounters in eight hours), it could 
typically require two weeks of observation in order to capture one drawing of a weapon. See 
Cruse & Rubin, Determinants of Police Behavior, in Project Report to N ational Institute 
OF Law E nforcement 194 (1972).

16.5. Other equal protection arguments can be made in addition to those concerning 
race. See Comment, supra note 5, at 375-80.

166. For a survey of the differing slate approaches, see materials cited in note 5 supra.
167. See notes 129 & 131 supra and accompanying text.



98 VANDERBILT LAW REVIEW [Vol. 33:71

The defense-of-life policy has the virtue of being both constitu­
tional and highly practical. It is constitutional, first, because it 
demonstrably does not constitute punishment. Since self-defense is 
an individual action rather than a state action, it is not subject to 
evaluation by the Mendoza criteria. The right to life is fundamental, 
and so the right to defend life need not be granted by the State; it 
IS, rather, something the State may not restrict. Police and other 
citizens may kill under self defense on the same evidentiary 
basis—eyewitnessing an immediate threat to life. If police were not 
granted special powers, police killings in self defense could be dis­
tinguished from punishment administered by the state. The adop- 
tmn of such an approach would signal a return to the English tradi­
tion of citizen-police officers, whose only special power is to arrest 
on probable cause (as citizens could only do during the hue and cry), 
and a rejection of the Continental tradition of soldier-police that we
, the police special powers to
kill. Police homicide in defense of life is nonpunitive by its very 
nature. It is inherently preventive. It uses an overt act—such as 
refusing to drop a gun on demand—as the evidentiary basis for 
taxing preventive action. By preventing the consummation of a vio­
lent crime threatened by an overt act, the defense-of-life killing 
looks toward the offender’s behavior in the future. Present police 
homicide rules all look primarily toward the offender’s past behav­
ior, and therefore constitute punishment.

Moreover, the defense-of-life policy is constitutional because it 
does not violate due process. As a solely individual action, police 
.nlhngs in defense of life do not deprive citizens of rights on behalf 
of the state, but merely on behalf of protecting their own rights. 
Finally, the defense-of-life policy does not constitute cruel and unu­
sual punishment. It is neither inherently cruel, nor disproportionate 
to the conduct to which it responds, nor unacceptable to society, nor 
imposed in an arbitrary and capricious manner. The defense-of-life 
policy would still leave room, hypothetically, for racial discrimina­
tion, but it seems most unlikely that police would grant preferential 
treatment to whites who pose immediate threats to life and limb.

The defense-of-life policy would also be more practical to im­
plement than any of the other attempts to create a policy more 
restrictive than the common-law doctrine. The Model Penal Code 
exemplifies the practical problems. As the dissent observed in

Ei'hopkan Polick
' " ') ,B a y ley ,  ̂he F ôlice and Political Development in Europe in '̂HV,ToK}A^~

ON OK National .Status in Wksteun Europe 328-79 (C. Tilly, ed. 1975).

1980]

Mattis 
who th 
against 
quires ti 

-This Ian
guage o 
merely 1 
to somei 
a gun at 
Predict! 
possible 
one. Sui 
When p< 
less ami 

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used or t 
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the Mod 

The 
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from thr 
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policy, ti 
sider prii 
observes 
naling ai 

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it const! 
Rights C£ 
the right

169. S(
ing).

170.
171.
172.

P i
M
t :

nal Justice I

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3:71

titu- 
ie it 
se is 
ct to 
ntal, 
te; it 
other 
itiary 
e not 
e dis- 
adop- 
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Icry), 
lat we 
êrs to 

,s very 
ach as 
sis for 
f a vio- 
killing 
police 

behav-

:ause it 
, police 
\ behalf 
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al to im- 
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nal Code 
ierved in

PEAN POUCE
T he F orma-

19801
POLICE HOMICIDE 99

Mattis u. S ch o rr , '-  a policy that d l r t o r c e

w L n  p e U  com L t overt threatening acts, however, there is much 

T s S e n s e  policy avoids the Model Penal Code’s problems

“• s t s s r  ;S  i
felonies, the approach used m ten state . practical to enu-
Police Departoent P " 7 p o l i c e  officers
t a f  Ihre'T'New Yor"k state police departments found tĥ rt n on e jf

S T e a X ‘t r r u f ^ r N : r s ^ t t r S w "
policy, there he

veT ” ::s"ess I th e rso m e o n e  is'^committing an overt act srg-

fhfright to life. The defense-of-lite rule is necessary tor the simp

169.
ing)-

170.
171. 
172

P erkins, supra note 23, at 986.

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• "'*V ■ • » A ' •

100 VANDERBII.T LAW REVIEW [Vol. 33:71

reason that anything else constitutes execution without trial, in 
violation of the Constitution.

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