Execution Without Trial: Police Homicide and the Constitution Paper by Lawrence W. Sherman

    EXECUTION WITHOUT TRIAL:

Police Homicide and the Constitution*

by Lawrence W. Sherman

The national debate over the State's righ,t to take life has been side­

tracked, in a sense, on the issue of "capital punishment," or more precisely, 

execution after trial. Far more deadly in its impact is the body of law 

permitting execution without trial through justified homicide by police ofiicers. 

In 1976, for example, when no one was executed and 233 persons were 

sentenced to death after trial, an estimated 590 persons were killed by police

officers justifiably without trial.^ Even in the 1950s, when an average

2
of 72 persons were executed after trial each year, the average number of

. . 3
police homicides was 240 a year, according to official statistics, and 480 

a year according to one unofficial estimate. As far back as records 

are available (to 1949), police actions have been by far the most frequent 

method with which our government has intentionally taken the lives of its 

own citizens.

The significance of police homicide is not derived solely from its 

frequency, however. Equally important is the nature of the crimes which 

justify police use of deadly force. Unlike executions after trial, 

executions before trial are not limited to the extremely serious crimes of 

murder, rape and treason. The majority of states permit the use of deadly 

fore? when necessary to prevent a felony or to .arrest someone an officer 

has reasonable grounds 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 only suspects of "violent" or "forcible"

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felonies,” which in some states may include burglary. Despite these 

relatively recent restrictions, most American police officers are still 

legally empowered, for example, to shoot unarmed fleeing burglary suspects 

in the back.

The available evidence suggests that when the police do use deadly

^ . • . 1 0
force, their targets are, in fact, often suspects of less semous cnmes. 

Approximately half of the targets of police deadly force in the several cities 

studied have not carried guns, and the proportion of those shot while 

fleeing is substantial To be sure, many police homicides occur in

defense of life, although the data are not precise enough to say just how 

many. There is no doubt, however, that many executions without trial still

occur in response to crimes against property.

A review of the legal history of police homicide shows that the "any-felony" 

rule is a conmon law anachronism that our courts and legislatures cling to long 

after the Crown Courts have treated the doctrine as dead and Parliament has 

laid it to rest through criminal law reform. More important, a review of the 

Constitutional status of the any-felony rule shows that it should be held to 

violate the Due Process Clause of the Fifth Amendment, the ban on cruel 

and unusual punishment of the Eighth Amendment, and the Equal Protection 

Clause of the Fourteenth Amendment. Both lines of inquiry suggest that the 

Constitution requires a defense of life doctrine to govern police use of 

deadly force.



I.

The original meaning of the common law justification for homicide to

effect a felony arrest was very different from its current meaning.

Literally a barbaric legal doctrine transplanted to England before the

common law began, it arose at a time when 1) there were no accurate

and reliable weapons available that could kill at any distance, 2) the

label "felony" was reserved for only the most serious crimes, all of

which were punishable by death, and 3) there was virtually no communication

among law enforcement officers in different communities. Each of these

three elements of the historical context has changed drastically over the

centuries, and with it the practical meaning of the doctrine.

The medieval weaponry used in "hue and cry" during the early years

of the any-felony rule was apparently limited to knives, swords, farm tools,

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and halberds. The longbow was not introduced until 1415, and in 1504

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the Tudors restricted the crossbow to lords and large landowners.

Henry VIII allowed noblemen and wealthy commoners to own guns,"*® but

"the musket of Shakespeare's time could not reach an enemy thoughtless

enough to stand further than eighty or ninety yards away.""'^ A "typical"

London street brawl in the reign of Henry VIII was put down by a band of

constables, none of whom were armed with any weapons other than those used

1 ft
in hand to hand combat. In this technological context, then, the practical 

meaning of the deadly force doctrine was that suspects could be killed 

if they resisted in a hand to hand struggle--but it did not mean that they 

could be killed from behind at a distance while they were in flight.

That meaning changed in the 19th century with the invention of the 

revolver. The police in large American cities, who had been disarmed since



the decline of Indian attacks before the Revolutionary War, began to carry

revolvers in the 1850s after criminals used revolvers to shoot and kill

police officers."'^ The dumping of thousands of army revolvers on the

surplus market after the Civil War speeded the general rearmament of

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an increasingly violent urban society and led to official acceptance of 

police use of r e v o l v e r s T h e  inmediate effect of this change was that 

the police could, and did, shoot fleeing suspects while they were posing 

no immediate threat to anyone.

The effect of the revolution in weaponry on police homicide was 

compounded by the expansion in the scope of felonies. Originally reserved 

under the common law for felonious homicide, mayhem, arson, rape robbery, 

burglary, larceny, prison breach, and rescue of a felon, all punishable 

by d e a t h , t h e  label o'f felony was attached to many more crimes by the 

advent of the r e v o l v e r . A n d  while the scope of felonies was expanding, 

the scope of capital felonies had contracted, leaving the death penalty in 

most states as the post-trial punishment only for treason and crimes 

endangering life or bodily s e c u r i t y . T h e s e  changes in the legal context 

of police homicide altered the meaning of the common law doctrine in two 

major respects: it greatly expanded the number of situations in which the 

police could kill without trial, and it created a gross difference in 

proportion between the severity of the post-trial penalty and the severity 

of the penalty for attempting to escape from justice.

By the late nineteenth century, the necessity of the common law doctrine 

had been undermined by the third change in historical context: the rise of 

bureajjcratic police agencies with the capacity to communicate information 

about suspects at large. The escaping suspect of eleventh century England



might establish a new life in another community with little fear of

eventual capture, and the social goal of retribution was frustrated by a

successful escape. By the 18th century, however. Justice Fielding was

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circulating descriptions of wanted criminals outside of London,, and by

the early twentieth century American detectives consulted their colleagues

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in other cities on the whereabouts of various thieves. The effect of this

change in the organizational context of police homicide 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 meaning of the common law doctrine did not

escape public notice and criticism. A New York Times editorial questioned

one of the first police shootings there in 1858, making a value judgment

that the Constitution, as I argue below, supports; ". . . if a policeman

needed to defend his life, the use of force was permissible, but if he was

chasing a suspect, he had no right to shoot the man. A policeman either

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had to be swift enough to catch the suspect or justice must be lost."

Another Times editorial the same year expressed grave concern about a

possible future in which "[e]very policeman is to be an absolute monarch,

within his beat, with complete power of life and death over all within his

range, and armed with revolvers to execute his decrees on the instant, without

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even the forms of trial or legal inquiry of any kind," a future which, 

to a large extent, has been realized.

Nor did these changes escape the notice of the courts. As early as 

1888, for example, the Supreme Court of Alabama took notice of the 

legisJative inflation of felonies, pronounced that "the preservation of 

human life is of more importance than the protection of property," and 

restricted the common law rule to disallow deadly force in the prevention



of secret felonies not accompanied by force—in that case, the theft of a

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horse. Several other decisions grappled with the obsolete common law

standard, but the courts generally were "reluctant to abandon a convenient

pigeon-hole disposal of cases on the basis of whether the crime was a

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felony or a misdemeanor."

Meanwhile, the English common law had already effectively abandoned 

the absolute right to kill to prevent felonies or apprehend felons, 

replacing that doctrine with a balancing test of necessity and proportion 

under which "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 against 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," (emphasis added). This principle was so well established in 

case law that by 1879 the Criminal Code Bill Commission took it as a 

"great principle of the common law" that the "mischief done by [the use of 

force to prevent 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 the Criminal Law Revision Committee reported to Parliament in 

1965 (two years before the any-felon common law doctrine was fully superseded by 

the Criminal Justice Act)^^ that while there is "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 that their central proposal to reclassify crimes 

would have no effect on police powers since "the likelihood that anything 

would turn nowadays on the distinction between felony and misdemeanour

1 • ii36IS very slight.

In this country, however, the use of the distinction remained anything

but slight. As recently as 1977 the Sixth Circuit upheld a Tennessee

statute under which the Memphis police shot and killed a sixteen year

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old burglary suspect fleeing from a hardware store. Noting that "the 

legislative bodies have a clear state interest in enacting laws to protect 

their own citizens against felons," and that the statute "merely embodied 

the common law which has been in force for centuries and has been universally 

recognized"^®—which we have seen is clearly not the case in English 

common law--the court rejected a Constitutional challenge to the statute 

on several grounds. A claim that the statute violated the Eighth 

Amendment's ban on cruel and unusual punishment was rejected on the grounds 

that police homicide is not "punishment." A claim that the statute 

violated due process protections was rejected on the grounds that state 

interests to be served through police homicide were more important than 

an individual's right to trial before being killed by police.^® And while 

the Eighth Circuit had recently held that a similar Missouri statute did 

violate Fifth and Fourteenth Amendment due process g u a r a n t e e s t h e  

Sixth Circuit criticized that decision for intruding on legislative 

business.'^® Finally, the Sixth Circuit case dismissed a claim of racial 

discrimination in violation of the Fourteenth Amendment because both

white and black fleeing felons . . . have been fired upon or shot by

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Memphis police." The Supreme Court denied certiorari.



The Sixth Circuit's cursory treatment of the threshold issue of 

whether police homicide constitutes punishment, however, is hardly 

definitive. Measured against standards well established by the Supreme 

Court, police homicide clearly constitutes punishment. And that finding 

places on much stronger ground the Fifth, Fourteenth, and Eighth Amendment 

arguments against all present police homicide statutes and case law.

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II.

The definition of punishment in philosophy and jurisprudence has often

been elusive. A "major obsession with the English linguistic philosophers

of this c e n t u r y , t h e  definitions have varied most sharply according

to the intent of the putative punisher, or the purpose of inflicting pain

or suffering.^® The Supreme Court's definitions of what deprivations

constitute punishment are also contentious on the issue of intent, as its

recent ruling in Bell v. Wolfish'̂  ̂ reveals. Justice Rehnquist, delivering

the opinion of the court, held that in determining whether particular

conditions accompanying pretrial detention amount to punishment in the

Constitutional sense of the word a "court must decide whether the disability

is imposed for the purpose of punishment or whether it is but an incident

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of some other legitimate governmental p u r p o s e . " A b s e n t  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 v. Mendoza-Martinez,^^ apparently as the 

controlling case on the subject. But as Justice Stevens pointed out in his



dissent, the Mendoza Court also recognized that evidence of intent would

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sometimes be "unavailable or untrustworthy." "In such cases," Justice 

Stevens continued, " . . .  the [Mendoza] Court stated that certain other

'criteria' must be applied 'to the face' of the official action to

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determine if it is punitive.'""^ And even though Justice Rehnquist did not,

as Justice Marshall pointed out,^ make use of the full set of Mendoza's

seven criteria, he nonetheless cited them all approvingly as "useful

guideposts in determining" what is punishment,’cal 1ing them "the tests

traditionally applied to determine whether a governmental act is punitive 

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in nature."

Since the original intent of the Gothic chieftains in establishing 

the kill to arrest rule is lost in history, and since the subjective intent 

of police officers acting within the rule may only "encourage hypocrisy 

and unconscious self-deception,"^^ the only way left to determine whether 

police homicide constitutes punishment is to apply the Mendoza Court's 

seven criteria "to the face" of police homicides as official actions:

[1] "Whether the sanction involves an affirmative disability or 

restraint,

[2] "whether it has historically been regarded as punishment,

[3] "whether it comes into play only on a finding of scienter,

[4] "whether its operation will promote the traditional aims of

punishment--retribution and deterrence,

[5] "whether the behavior to which it applies is already a crime,

[5] "whether an alternative purpose to which it may rationally be

connected is assignable for it, and whether it 

[7] "appears excessive in relation to the alternative purpose 

assigned .
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The Mendoza Court noted that all of these criteria are relevant to the

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inquiry, although they "may often point in differing directions."

In the case of police homicide, however, the seven criteria all point in 

the direction of punishment.

[1] There can be no doubt that the sanction of police homicide 

constitutes "an affirmative disability or restraint." It is not only a

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deprivation of rights, but a deprivation of "the right to have rights."

It is not only a sanction, but a "unique" sanction; "In a society that so 

strongly affirms the sanctity of life, . . . the common view is that death 

is the ultimate s a n c t i o n . F i v e  members of the present Court have 

"expressly recognized that death is a different kind of punishment from 

any other which may be imposed in this c o u n t r y " " F r o m  the point of view 

of the defendant, it is different in both its severity and finality. From 

the point of view of society, the action of the sovereign in taking the 

life of one of its citizens also differs dramatically from any other
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legitimate state action."^'' The right to life is fundamental and preeminent. 

Its deprivation has the same effect no matter what the expressed purpose

may be.

Police homicide also deprives citizens of another fundamental right;

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the right not to be deprived of life without due process of law.

[2] The historical record clearly demonstrates that executions 

without trial were generally viewed as punishment, including the kill to 

arrest doctrine. 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

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n

on the thief. Suspicion sufficed to convict thieves without any trial

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at all, and "execution in such cases often followed immediately on arrest. 

According to the preamble to Act 24 of Henry VIII, c. 5, it appears that 

the common law then authorized persons against whom crimes were attempted 

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 was codified, 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 historical status 

of the doctrine. Professor Perkins notes that "as the felon had forfeited 

his life by the perpetration of his crime, it was quite logical to authorize 

the use of deadly f o r c e . A  1929 law review note on killing to arrest felons 

described "the extirpation [as] but a premature execution of the inevitable 

judgment" in the era of capital punishment for all f e l o n i e s . M o w  that 

that era is past, the premature execution is of course more severe than the 

"inevitable judgment." But the historical character of police homicide 

as punishment is not altered by the modern disproportionality between 

pretrial and post trial sanctions.

[3] The Mendoza Court's use of the term "scienter" is unclear. Of 

the two cases cited on this point, one of them^"' is cited incorrectly 

since it holds the opposite principle; that penalties may constitute



punishment regardless of scienter. The cited ruling held that any fine 

imposed on an import merchant for underestim.ating the value of certain goods 

was "still punishment and nothing else," with or without scienter, or 

fraudulent intent. The other case cited in Mendoza only mentions in 

passing that the exemption from a federal child labor "tax" of employers 

who do not know that their workers are underage suggests that the tax is 

really a penalty; "Scienter is associated with penalties, not with taxes. 

Neither case actually holds that punishment is only imposed after a finding 

of scienter.

Nonetheless, the Supreme Court has held that "the general rule at

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common law was that scienter was a necessary element . . .  of every crime. 

Regardless of criticisms of this u s a g e , o n e  may proceed from it to infer 

that when an officer found sufficient cause to believe someone was a felon 

as a necessary condition for killing him,-the officer was also finding 

scienter at the same time. If the officer did not have probable cause to 

believe that scienter was present, then he did not have probable cause to 

believe the person was a felon, and killing would not be justified. 

Justified police homicide therefore historically presumes scienter, and 

satisfies the face meaning of this Mendoza criterion of punishment.

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[4] Police homicide clearly promotes retribution, the first of the 

two "traditional aims of punishment" named by the Mendoza Court. As the 

dissent in Mattis v. Schnarr^^ argued in support of the any-felony rule 

that court found unconstitutional, "[t]here is no constitutional right 

to commit felonious offenses and to escape the consequences of those 

offenses." In that context, "consequences" strongly implies "just deserts," 

or retribution.



Whether police homicide, or indeed any punishment, actually promotes

deterrence may be an impossible question to a n s w e r . I f  undisputed

empirical evidence of a deterrent effect is required in order to judge a

sanction to be punishment, then many social scientists would argue that

few sanctions qualify. If, on the other hand, only the hypothesis of

deterrence need be associated with a sanction in order for it to be a

punishment, then police homicide passes the test. The assumption of

legal authorities that police homicide has a deterrent effect is reflected

in the American Law Institute's debates over the issue. Both the

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deterrence of flight from arrest and the deterrence of robbery has been 

specifically mentioned, albeit with differences of opinion. The 

deterrence hypothesis is also implied in recent federal cases, such as 

Jones V. M a r s h a l l in which the Second Circuit (three judge court) upheld 

Connecticut's common law on killing fleeing felons with the observation 

that the states had the right to place a higher value on order than on 

the rights of suspects; the only way order can result from homicide is 

through deterrence.

[5] All of the behavior to which police homicide applies is already a 

crime, or the officer must reasonably believe it to be a crime. There is, 

however, some question about which crime police homicide is punishing.

As Professor Mikell asked in his often quoted statement to the American 

Law Institute, "May I ask what we are killing [the suspect] for when he 

steals an automobile and runs off 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 automobile, because the statute provides only 

three years in a penitentiary for that. Is it then . . . for fleeing that

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we kill him? Fleeing from arrest . . .  is punishable by a light penalty, 

a penalty much less than that for stealing the automobile. If we are not 

killing him for stealing the automobile and not killing him for fleeing, 

what are we killing him for?"^"' No matter how little sense it makes in 

relation to the post trial penalty, however, we are in fact killing the 

auto thief for the volatile combination of felony and flight, both of which 

are crimes.

[6] The alternative purposes of capture and crime prevention, rather 

than punishment, may no doubt "rationally be connected" to police homicide. 

Just as the Wolfish Court held that overcrowding and other disabilities 

imposed on pretrial detainees in a federal jail did not constitute punishment 

because they were merely an "inherent incident" of the Government meeting 

its 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. If the expressed intent of 

the officers using deadly force is to apprehend felony suspects, by this 

logic, then death from police homicide is not a punishment.

An equally strong case could be made that the presence of multiple 

purposes in a governmental action does not automatically grant preeminence 

to the non-punitive purpose. One purpose of prison systems in some states is 

the manufacture of license plates, but a penitentiary sentence could hardly 

be described as merely an inherent incident of the legitimate state interest 

in manufacturing license plates. Implicit in the VJolfish Court s 

reasoning is a judgment about the primary purpose of any governmental action 

that has more than one purpose. And just as insuring appearance at trial 

can be judged the primary purpose of a jail, punishment can be judged 

the primary purpose of police homicide: "The reason for . . . killing



felons . . .  in attempts to arrest them . . .  is obvious . . . .  [T]he 

safety and security of society require the speedy arrest and punishment

X  X  1 m 8 3of a felon.

Unlike the other six Mendoza criteria, this one has a qualifying, 

conditioning link to another criterion: even if a sanction has an 

alternative purpose to punishment, it must not appear excessive in relation 

to that alternative purpose. No matter what the primary purpose of police 

homicide is judged to be, then, if it appears excessive in relation 

to a non-punitive purpose then it must be defined as punishment. As Justice 

Stevens interprets Mendoza in his Wolfish dissent, "When there is a 

significant and unnecessary disparity between the severity of the harm to 

the individual and the demonstrated importance of the regulatory objective .

15

courts must be justified in drawing an inference of punishment.
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[7] The disparity between the death of a suspect and the purposes 

of prevention [non-violent crimes] and capture is both significant and 

unnecessary, and therefore excessive in relation to those purposes. It is 

significant in the case of capture because, once again, the means used to 

prevent the suspect's escape is far more severe than the maximum penalty 

that would be imposed upon sentencing for all crimes (depending on the 

jurisdiction) except murder, treason, and rape. It is significant in the 

case of prevention of non-violent crimes because the evil imposed is greater 

than the evil prevented. It is unnecessary in the case of capture because 

most suspects can eventually be recaptured, and in the case of prevention 

because non-lethal intervention is usually possible. A sanction that takes 

a life to prevent the theft of an ear of corn^^ or a chicken®^ cannot, in 

a society that values life, be other than excessive.



On all seven Mendoza criteria, the use of deadly force to capture 

felons and prevent felonies constitutes punishment, and is therefore subject 

to the Constitutional restraints on the use of punishment. Even if it were 

ruled not to be punishment, however, it is still a deprivation of rights 

subject to the due process requirements of the Fifth and Fourteenth Amendments 

A ruling that police homicide constitutes punishment has the added 

advantage of subjecting it to Eighth Amendment review, but in any case that 

review is generally possible only after due process guaranties have been 

s a t i s f i e d . I n  the case of police homicide, the due process guaranties 

are anything but satisfied.

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III.

If police homicide is recognized as punishment, its apparent violation 

of due process guaranties is strikinq. The framers "intended to safeguard 

the people 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 

particularly strict: "No person shall be held to answer for a capital, or 

otherwise infamous crime"—i.e., anything punishable by death—"uniess 

on a presentment or indictment of a grand jury." Indeed, a literal reading 

of the Due Process Clause would mean that "life could never be taken without 

a t r i a l . A n d  that is precisely what is should mean, at least insofar 

as life is taken under the authority derived from serving State interests, 

as opposed to serving individual interests under the self-defense doctrine. 

This doctrine also includes the defense of "another person against what

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17

is reasonably perceived as an immediate danger of death or grievous

92
bodily harm to that person from his assailant."

The one Circuit Court that has held the any-felony>ule to violate

the Fourteenth Amendment finds this interpretation too extreme. "Such a

literal reading," it held, "would fail to recognize the interests of the

State in protecting the lives and safety of its citizens," and therefore

the situations in which the State can take a life without according a

trial to the person whose life is taken are to be determined by balancing

society's interest in public safety against the right to life of an

i n d i v i d u a l I r r e s p e c t i v e  of their conclusion, the use of the balancing

test is a fundamentally flawed procedure for the determination of whether

the right to a form of due process specified in the Constitution is

applicable. The Fifth Amendment does not depend upon a showing that it is

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in the community's best interests that the procedures be accorded.

As Professor Dworkin has observed, "a right against the Government must be

a right to do something even when the majority would be worse off for having

it done."^^ The majority is no doubt worse off whenever a fleeing felon

escapes, but that should not alter the felon's Fifth Amendment right

to grand jury review before he is executed.

The balancing test is, however, the prevailing method of determining

96
how much process is due once it is determined that due process applies.

Even though the severity of individual deprivation and the relative 

importance of governmental interest in summary action may be incommensurable, 

this procedure should lead reasonable men and women to a more restrictive 

scope, of executions without trial. Both the Fifth and Fourteenth Amendments 

specifically forbid deprivation of life without due process of law, so

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there is no question that some process is due. The issue of when to

allow executions without the due process of trial must then balance the

individual's fundamental rights to life and to the right not to be

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deprived of life without the due process of trial against the State's 

interest, not just in general public safety, but in protecting the property 

and lives of other individuals.

We have long since decided that life is more important than property, 

and that no property offender, no matter how serious or recidivistic, 

may be executed after trial for his offenses. It should follow that the 

State's interest in protecting the property of others is not compelling 

enough to allow execution without the due process of trial.

The State's interest in protecting the lives and bodies of other 

individuals is far more compelling, and much more appropriate for a 

balancing test."'*̂  ̂ Where someone poses an immediate threat of grievous 

injury to another, a balancing test would conclude that the State's interest 

in protecting the other person allows it to commit an execution without 

due process of trial. It is not necessary, however, to adopt the 

balancing test procedure in order to conclude that police officers may kill 

in defense of life. The self-defense doctrine gives them that power 

as individuals, and not as agents of the State. The police can kill those 

posing an inmediate threat of violence without violating the Fifth Amendment 

rights of those killled, 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-felon rule. If a fleeing felon the officer 

reasonably believes to be armed turns toward the pursuing officer, possibly 

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.



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 the 

incapacitation argument should not be compelling. A released convict 

who has served a full penitentiary sentence may be equally likely to commit 

more crimes, but that justifies neither our executing him nor our keeping 

him in prison 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 empirical 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 balancing test found 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 Eigth Amendment, or a denial of equal protection under the 

Fourteenth Amendment.

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IV.

The lack of guidance from the Framers on their intent in banning cruel

103
and unusual punishment has made that phrase difficult to define precisely.

Nonetheless, four criteria for judging whether a given punishment is cruel

and unusual clearly emerged in Furman v. Georgia'^^^ and its predecessor

105
cases. The criteria are whether the penalty is [1] inherently cruel,

[2] disproportionately severe to the offense it p u n i s h e s , [3] unacceptable

to contemporary s o c i e t y , o r  [4] inflicted a r b i t r a r i l y . N o n e  of the

four seems to have been overruled in the death penalty cases since

Furman, and all but the third are specifically addressed in the opinion of

. 109
the Court—a consensus the Furman Court lacked--in Gregg v. 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] The present Court has consistently held that the punishment of

death is not unconstitutional gejr se.^^° Previous Courts have, however,

considered whether particular modes of inflicting death are unconstitutionally

c r u e l . T h e  methods of shooting and electrocution have both been upheld,

but it is doubtful that any court would uphold death through a sustained

112
beating after a suspect has been subdued, or through a drowning or a 

c h o k e - h o l d . P o l i c e  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 r e v i e w . U n d e r  the present any-felon law, prosecutors 

are oTi firm ground in failing to prosecute police officers who beat felony 

■ suspects to death when it is necessary to effect an arrest. Where such



21

action cannot be justified by self-defense, it would seem to be an

inherently cruel and unusual form of punishment, .a "fate forbidden

11 5
the principle of civilized treatment guaranteed by the Clause."

[2] Police homicide is "grossly out of proportion to the severity'

117

,116

of most of the crimes it punishes. A former Oakland, California police

chief graphically demonstrated the disproportion when he restricted his

officer's 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 difficult 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-|ig 
captured the three who would have gone to the Youth Authority.

The 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 execution would not be disproportionately severe. But

murder and rape do not even appear as categories in most studies of police

use of deadly force, so small is their proportion of all crimes punished by

police homicide. Under the proportionality test used for the past century

in English law, which embodies social values quite similar to our own, even

fleeing murderers could probably not be killed justifiably in order to arrest

119
them once they no longer posed an immediate threat of violence.

Proportionality of punishment has been essentially a moral judgment, 

ion
not a utilitarian one. A finding on the issue of necessity may also be



relevant, however, for if a punishment is excessive in relation to its 

purpose it may be disproportionate. The fact that immediate arrest 

is no longer necessary to insure that punishment is imposed, noted above, 

makes most police homicides excessive and compounds their disproportionate 

severi ty.

22

[3] While police homicides to arrest serious felons did not shock the 

122 '
common conscience of medieval England, it appears to shock our own--at

least when the people are told the facts of police homicide. The Eighth

123
Amendment draws meaning from the evolving standards of a maturing society,

124
and three of four available objective indicators show much evolution in 

this regard during recent years: police department administrative policies, 

scholarly opinion, and mass public protests. A fourth indicator, 

legislative authorization, lags behind the others, but that alone does not 

demonstrate the acceptability of police homocide to. society. Moreover, 

even the legislative arena has witnessed marked change on police homicide 

over the past decade.

Until quite recently, police department policies were either vague

125
or silent on the use of deadly force, but that is rapidly changing.

Just 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

126
officers shot and killed a naked chemist. Houston adopted a defense 

of life policy in the wake of the beating and drowning of a young Chicano 

male. Birmingham adopted a more restrictive policy after a Police 

Foundation study of seven cities showed Birmingham to have the highest police 

shooting rate --the public outcry over which lends some support to 

Justice Marshall's hypothesis that the public is more likely to find a



23
129

punishment unacceptable when they know the full facts about it.

Police policies more restrictive than state law are far 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 have presented a threat of serious

injury or death to someone
130 In 1975 the California Peace Officer's

Association and the California Police Chiefs' Association jointly adopted 

a similar policy.''^^ The 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

133
operates one of the most hazardous types of law enforcement programs,

134
adopted a similar policy in 1971.

The advent of these policies was preceded by some fifty years of 

near-unanimous scholarly criticism of the any-felony rule, from law 

reviews"*^^ to a Presidential Commission"*to professional police publications 

A more powerful force for change, however, has been the long series of 

public protests—often violent—over police use of deadly force in minority 

communities. In the 1960s, several racial riots were precipitated by 

police shootings"'^^ as the final straw in poor race relations. In the 

1970s, police homicides have produced more limited protests with less 

violence, but with a clear focus on the problem of police homicide. New 

York, Houston, Los Angeles, Dallas and other cities repeatedly felt

137

1 3 9 . .  • i_
such "protests throughout the late 1970s. Minority groups in the

Southwest even managed to enlist President Carter's concern for the problem.
140



leading to an intensified effort at federal prosecution of police for 

civil rights v i o l a t i o n s . Y e t  as long as the any-felon rule survives, 

many of the incidents that stir public outrage will remain legal and beyond 

prosecution.

The state legislatures appear less vulnerable to such protests than

police chiefs and mayors, but a steadily growing number of legislatures

have reflected the apparent change in public sentiment toward police homicide.

Id?
Since 1973, at least eight states have adopted the Model Penal Code limitations 

on deadly force to arrest. One state—Minnesota—has even required that all 

police shootings be reported to the state government, in part for monitoring 

p u r p o s e s . T a k e n  in conjunction with the developments in police policy, 

scholarly opinion and public protests, the state legislative actions are 

consistent with a general finding of a clear trend towards restricting 

executions without trial as unacceptable to society.

24

[4] Relative to the total number of arrests and police-citizen 

encounters, police homicide is inflicted so rarely and with such arbitrariness 

as to be "wanton and freakish,"'*'^^ a virtual lottery system in which there 

are no safeguards for the capricious selection of criminals for the 

punishment of d e a t h . E v e n  in police departments with more restrictive 

deadly force policies, the discretion those policies allow the officers 

to use or not to use 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 cases in which it is legally available, through procedures that 

give room for the play of racial and other prejudices.



Z b

Unlike executions after trial, there are no records kept, comparable

to convictions for capital offenses, 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

147
attempted arrest seems likely to be much larger. Moreover, the mere fact

148
of its extreme rarity raises a strong inference of arbitrariness.

Despite the progress in the policies of many police departments,

many other departments still allow their officers total discretion to use

1 4.Q
their legal power to kill. Even the departments with restrictive

policies typically say when officers use their weapons, and not when

they must. Non-invocation 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, Mo. police officer recently

said about the control of firearms discretion in that department, one of

the best managed police agencies in the country, "they pretty much leave it

up to your own conscience to decide" whether or not to shoot someone when

their restrictive policy allows it."'̂ "' Many police officers are punished

l-152
for 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 demonstrated by a recent experimental study of twenty-five 

randomly selected Connecticut police officers who were given identical 

information about three arrest situations. When asked if they would be likely 

to use deadly force, their responses were almost evenly split, even though



26

they were all making decisions under Connecticut’s common law
153

In comparison to the vigorous controls on the post trial death penalty

154
described and approved in Gregg v. Georgia, then, the use of deadly 

force by police is virtually uncontrolled. The trier of fact is also the 

determiner of sentence, with no information from a record keeper about 

what the typical police action has been in previous situations similar to 

an instant case. If decision making without those controls 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 trial 

as wel1.

V.

A final argument against deadly force to arrest is that present 

practices deny equal protection to blacks. The argument is,not without 

its weaker points, for discrimination in the use of deadly force is 

methodologically difficult to prove. Nonetheless, the extremely disproportionate 

impact of executions without trial on blacks compels consideration of the 

argument.

According to official statistics, blacks constituted 46 percent

155
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 10 in a recent ten year period 

was nine to ten times higher than the rate for white males. City level 

studies have found even greater racial disparities in the rate of police 

homicldes."*^^ Some attempts to explain away the-disparity in terms of arrest 

rates for FBI Part I Index crimes have been made, but that approach has several



27

limitations. First, the power to use deadly force under the common

law rule is not limited to arrests for "index" crimes, the

comparison usually employed. Indeed, as the empirical studies'^^^ show,

most police shooting incidents arise out of situations in which the

criminal offense is clearly not an Index crime. Second, in many police

shooting situations there is no offense recorded unless the police

intervention precipitates more violence, for example, in family arguments.

Many violent family fights are not reported as c r i m e s , a l t h o u g h  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

162
absence of discrimination in police homicide.

Even if arrest rates by race were an appropriate means of showing 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 87 percent of the police homicide victims but only 22

percent of the city's population was black, only 31 percent of the arrest

population was b l a c k . M o r e  recently, a study of the Chicago police found

the police homicide rate per 10,000 arrests (for all charges) in 1959-70 to

1
be 1.00 for whites and 2.01 for blacks. Nationally, in 1975 blacks accounted

for 46 percent of the police homicide victims and only 33 percent of the

165
Part I FBI index offense arrests.



The existence of racial discrimination in police homicides can be 

neither proved nor disproved with the available evidence. Resolution of 

the issue would require data on the number of blacks and whites who 

conmitted acts that made them legally vulnerable to police homicide: 

assaulting or threatening to assault police or others with grievous harm, 

fleeing from arrest for felonies, participating in a riot, or other 

specifically covered b e h a v i o r . S h o r t  of a mammoth systematic observation 

study^^^ costing millions of dollars, there is no reliable way to obtain 

such data. A sample of the narrative accounts found in arrest reports, 

also expensive but less so, 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

168
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, that would simply demonstrate that 

present procedures allow police homicide to be administered in a 

discriminatory fashion.

28

VI.

This analysis of police homicide and the Constitution leads to the 

conclusion that the present state laws are unconstitutional, not just in 

the conmon law states, but in the Model Penal Code and "forcible felony" 

states as well.^^° The present laws of every state in the union deny Fifth 

and Fourteenth Amendment rights to due process, impose the punishment of death 

in a cruel and unusual fashion, and appear to deny equal protection to blacks. 

The only Constitutional alternative seems to be removing police homicide from



29

171

the realm of punishment and confining the justification for it to the 

self-defense doctrine, more properly called a defense of life doctrine.

Put another way, the conclusion is that the police throughout the country 

should adopt the firearms policy of the Federal Bureau of Investigation.

The defense of life policy has the virtue of being both Constitutional 

and highly practical as well. 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. Since both police and other citizens 

can kill under self-defense on the same evidentiary basis--eyewitnessing 

of an irmediate threat to 1 ife—self-defense grants the police no special 

powers, and therefore does not imply that police killings in self-defense 

constitute a punishment administered by the state. The adoption of such 

a rule would signal a return to the English tradition of citizen-police 

officers, whose only special power is to arrest on probable cause (as 

citizens could once do during the hue and cry), and a rejection of the

Continental tradition of soldier-police that we have unconsciously adopted

, • • n  ̂ T72
by giving the police special powers to kill.

Police homicide in defense of life is also'non-punitive because of 

its very nature. A defense of life killing is inherently preventive. It 

does not punish someone for committing an overt act that demonstrates he 

threatens life. Rather, it uses the overt act—such as refusing to drop 

a gurvon demand—as the evidentiary basis for taking preventive action.

A defense of life killing prevents the consummation of a violent crime



threatened by an overt act, and therefore looks toward the offender's 

behavior in the future. Present police homicide rules all look primarily 

towards the offender's behavior in the past, and therefore constitute punishment.

The defense of life policy is also Constitutional because it does not 

violate due process. As a solely individual action, police killings in 

defense of life do not deprive citizens of rights on behalf of the state, 

but merely on behalf of protecting their own rights.

Nor does the defense of life policy constitute cruel and unusual 

punishment, since it is neither punishment, nor inherently cruel, nor 

disproportionate to the conduct it responds to, nor unacceptable to society, 

nor arbitrary and capricious in the manner in which it is imposed.

The defense of life policy would still leave room, hypothetically, for 

racial discrimination, but it seems most unlikely that police would grant 

preferential treatment to whites who pose imnediate threats to life and limb.

The defense of life policy would also be more practical to implement 

than any of the other attempts to create a more restrictive policy than the 

cormion law doctrine. The Model Penal Code exemplifies the practical problems.

As the dissent observed in Mattis v. Schnarr, a policy that allows 

police to kill someone the officer reasonably believed "would use deadly 

force against the officer or others if not immediately apprehended" requires 

too much guessing and analysis for an emergency situation. This language 

differs sufficiently from the "immediate danger" language of the FBI's 

policy so that the former might include the apprehension of a fleeing felon 

who is labeled as supposedly "armed and dangerous," as opposed to a someone 

who Is actually committing an overt act such as pointing a gun at someone 

else. The police are not armed with a crystal ball. Predicting that a 

fleeing felon is likely to kill someone is no more possible than predicting 

that a paroled felon is likely to kill someone. Such a policy places an

30



undue burden on the police officer. Where people commit overt threatening 

acts, however, there is much less ambiguity.

A self-defense policy also avoids the Model Penal Code's problems in 

allowing police officers to shoot fleeing felons only when they have used 

or threatened to use deadly force. Professor Perkins argues that this 

provision of the Code "goes too far" because officers making split-second 

decisions will find it difficult to determine all the details of the 

suspect's c o n d u c t . O n  the contrary, it is just for that reason that the 

Model Penal Code does not go far enough.

The self-defense policy also avoids the practical problems of allowing 

officers to shoot fleeing suspects of a list of specified "forcible" 

felonies, the approach used in ten states. As a former Los Angeles Police 

Department policy observed, "[it] is not practical to enumerate specific 

f e l o n i e s . A n  informal survey of police officers from three New York 

state police departments found that none of them could remember the list 

of felonies for which fleeing suspects could be killed under New York state 

law.^^^ With a self-defense policy, there is nothing to remember, and no 

prior events on which to gather information; the officer need only evaluate 

the information he gathers with his own eyes to assess whether someone is 

committing an overt act signaling an immediate threat to someone else.

It is not the practicality of the defense-of-1ife rule that makes it 

Constitutional, however; that is merely a fortunate byproduct. Rights 

cannot depend on administrative convenience, and especially not the right 

to life. The defense of life rule is necessary for one simple reason: 

anything else constitutes execution without trial, in violation of the 

Constitution.

31



:>L

NOTES

This writing was supported in part by the National Institute 
of Mental Health, Center For Studies In Crime And Delinquency,
Grant No. 1 ROIMH 31335-01 CD, "Homicide By Police Officers." Fred Cohen, 
David Wukitsch, Michael Gottfredson, Eva Sherman, Mark Blumberg and 
Robert Langworthy contributed ideas and assistance.

"^Associate Professor of Criminal Justice, State University of 
New York at Albany, and Director, Project on Homicide by Police Officers. 
Criminal Justice Research Center,

"'The official death records of the National Center for Health 
Statistics show a total of 295 deaths by legal intervention of police for 

1975.''(Data supplied on tape by National Center For Health Statistics!. 
Independent tests of the death record data, however, reveal that they 
are rather consistently underreporting police homicides by about 50 percent, 
L. Sherman and R. 'Langworthy, Measuring Homicide by Police Officers, 
unpublished ms., Criminal Justice Research Center. On the number of post­
trial death sentences, see U.S. DEPARTMENT OF JUSTICE, LAW ENFORCEMENT 
ASSISTANCE ADMINISTRATION, NATIONAL CRIMINAL JUSTICE INFORMATION AND 
STATISTICS SERVICE, CAPITAL PUNISHMENT, 1976; NATIONAL PRISONER STATISTICS 
BULLETIN SD-NPS-CR5 at 3 (1977).

-U.S. DEPARTMENT OF JUSTICE, supra note 2 at 13.

^ITAL STATISTICS OF THE UNITED STATES, 1950- 1959, (Annual)

11 HARV. CIV 
Deadly Force

^See note 1 supra.

^Comment, Deadly Force to Arrest: Triggering Constitutional Review,
L. REV. 361 (1976); Note, Justifiable Use o T ~, RTS.-CIV. LIB 

the Police: A.Statutory Survey,
(1970)^ On the common law, see, e.g., 2 HALE'S

12 Wl 
P.C.

& MARY 
75-77.

L. REV. 67

Comment, Pol iceman 
KENT L. REV. 252 (1971)“

s Use Of Deadly Force In Illinois, 48 CHICAGO-

^Which holds, in part, 
under this Section unless:

"The use of deadly force is not justifiable

( i )
(ii)

(iii)

(iv)

the arrest is for a felony; and
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; and
the actor believes that the force employed creates no substantial 
risk of injury to innocent persons; and 
the actor believes that:

the crime for which the arrest is made involved conduct 
including the use or threatened use of deadly force; or 
there is a substantial risk that the person to be arrested 
will cause death or serious bodily harm if his apprehension 
is delayed." MODEL PENAL CODE, §3.07(2)(b) (1962) .

( 1 )

( 2 )



33

®L. Sherman, Restricting the License to 
in Police Use of Deadly Force, 14 CRIM. L. BULL.

Kill--Recent Developments 
. 577 (1978j.

^Comment, Deadly Force To arrest. Note 5 Supra at 365, note 34,

1 0.■'The following table is constructed 
of police use of deadly force; (1) A study 
Philadelphia police officers in 1950-1960. 
Homicides by Police, 54 J. CRIM, L. C. & P 
of 911 police killings reported in

from four empirical studies 
of the 32 persons killed by 
G. Robin, Justifiable 
S. 224 (1953T (TTA study 

newspapers around the country in

1965-69. A 
of Civilians

Kobler, Figures (and Perhaps Some Facts) on 
in the United States, 1965-1 969', 31 J,

Pol ice Killings 
(1975)SOC. ISSUES 185

(3) A study of police department records, producing pooled data for 
1973 and 1974 in Birmingham, Alabama; Oakland, California; Portland, 
Oregon; Kansas City, Missouri; Indianapolis; and Washington D.C., and 
in Detroit for all of 1973 and part of 1974, on 320 police firearms 
discharges in which a bullet wounded or killed someone. C. MILTON, ET AL, 
POLICE USE OF DEADLY FORCE (Police Foundation, 1977). (4) A study of
5,111 incidents in which New York City Police Department officers 
discharged their weapons regardless of impact, during 1971-1975.
J, Fyfe, Shots Fired: A Typological Examination of New York City Police

_Fi rearms Pi scharges, 
of'Criminal Justice,

unpublished Ph.D. dissertation. School 
State University of New York at Albany, \978.

Of the studies cited in note 10, supra . Kobl.er (at 188) found 
50 percent of those shot by the police to have carried guns at the time 
and 25 percent to have been completely unarmed. Milton ^  al_. (at 22) 
found 45 percent to have had guns and 43 percent to have been unarmed. 
Fyfe (at IV-30) found 54 percent to have had guns, and 30 percent to 
have lacked a gun or a knife. Another study found 53 percent of the 
1969-70 police homicide victims in Chicago to have carried a gun, and 
23 percent to have lacked any weapon. R. W. Harding and R. P. Fahey, 
Killings By Chicago Police, 1969-70: An Empirical Study, 46 S. CAL. L. 

REV. 284, 293, (1973).

Kobler (at 165) also found that, measured by a defense of life 
standard, only two fifths of the killings would have been justified; 
the rest were either killings of suspects in flight or to prevent a 
nonviolent crime. In contrast, Fyfe (at 279) found that 71.5 percent 
of the police firearms incidents in his New York sample were reportedly 
in defense of life, a finding consistent with the tradition of relative 
restraint in that department. Other cities are guite different.
A study of Philadelphia police use of deadly force in 1970-74 
found that approximately forty-five percent of those people shot had been 
fleeing at the time, and in approximately one of four incidents the 
shooting victim was both fleeing and unarmed, A study by the Boston 
Police Department found that 102 of the 210 targets of Boston police 
firearms discharges in 1970-1973 were fleeing at the time, and 80 
of the 102 were unarmed. See Mattis v. Schnarr, 547 F. 2d 1007, 1019, 
1020, n. 30.



CO

Even t_Type

Events Preceding Police Use of Deadly Force

TABLE 1

T U D Y F I N D I N G S *

^Percentages may not total 100 due to rounding 
**Includes other misdemeanors not listed above

Robin, 
(N-3:

1963

?)

Kobler, 
(N = 91

1 975b 
1 )

Mi 1 ton , et a 1 ,
(N=32“oy

1977

% Rank Cf
■c Rank 0/

h Rank

Disturbance Calls: 
Family Quarrels 
Disturbed Persons 
Fi gilts 
Assaults 
"Man with a gun"

31 (?) 17 (4) 32 0 )

Robbery:
In Progress 
Pursuit of Suspect

28 (3) 20 (3) 21 (2 )

3iii gl ary:
In Progress 
Larceny
Tampering with Auto 
Pursuit of Suspects

37 (1 ) 27 (?) 2 0 (3)

Traffic Offenses: 
Pursui ts 
Vehicle Stops

3 (4) 30** (1 ) ■ 8 (5)

Officer Personal Business: 
Oi spate 
llorsGpl ay 
Accident

7 7 4 (5.5)

Stakeout/Decoy 7 - 7 - 4 (6.5)

Other 0 (5) 6 (5) 1 1 (4)

Fvfe, 1978 
(N=511 i )

?5

39

12

Rank

( ? )

( 1 )

( 4 )

(3)

(5)



^^VON STIERNHOOK, TREATISE ON GOTHIC LAW (Stockholm).
See also 4 BLACKSTONE'S COMMENTARIES 180 (1800).

L. MELVILLE-LEE, A HISTORY OF POLICE IN ENGLAND 35 

(London, 1901; Montclair, 1971).

^^L. B. SMITH, THIS REALM OF ENGLAND 1399-1688, 15 (1966).

''̂ L. KENNETT AND J. L. ANDERSON, THE GUN IN AMERICA 22 (1975).

35

16
Id. 23.

• ''̂ R. SHERRILL, THE SATURDAY NIGHT SPECIAL 4 (1973).

^®G. R. ELTON, POLICY AND POLICE 4, 5 (1972).

''^KENNETT AND ANDERSON, note 15 Supra at 151; J. F. RICHARDSON,
THE NEW YORK POLICE 113 (1970); R. LANE, POLICING THE CITY 103-104 (1967)

^°KENNETT AND ANDERSON, note 15 Supra at 91.

^"'Though not without the strenuous objections of some police 
commanders, who thought the use of revolvers was cowardly. See 
W. R. MILLER, COPS AND BOBBIES, 51-53 (1977).

^^R. M. PERKINS, CRIMINAL LAW 10-11 2 D. (1969). As Blackstone 
noted, "The idea of felony is indeed so generally connected with that 
of capital punishment, that we find it hard to separate them".
4 BLACKSTONE'S COMMENTARIES 97-98 (18O0).

^^Corment, Use of.Deadly Force in the Arrest Process, 31 
LA. L. REV. 131, 132-133 (1970): BLACKSTONE, supra note 22.

^^Furmian v. Georgia, 408 U.S. 238, 333-41 (1972) (Marshall, J., 

concurring).

^^PRINGLE, HUE AND CRY 133 (1955).

PROFESSIONAL THIEF, THE PROFESSIONAL THIEF (E. H. SUTHERLAND, 

ED.) 112 (1937).

^^Quoted in KENNETT AND ANDERSON, note 15 supra at 150.

^^Quoted in MILLER, note 21 supra at 146.

^^Storey v. State, 71 Ala. 329, 340 (1882).



36

^^E.g., United States v, Clark, 31 F. 710, 713 (8th Cir. 1887); 
Reneau v. State, 70 Tenn. (2 Lea) 720 (1879).

"̂'k . G. Pearson, The Right To Kill In Making Arrests 28 MICH.
L. REV. 957 (1930).

^^11 HALSBURY'S LAWS OF ENGLAND 630 (1976); R. V. McKay, 1957 VR 
560, 572 (Smith, J., dissenting). The question of deadly force to 
prevent flight is either implied in this formulation, or so far beyond 
the pale that the current formulations make no mention of it. See 
also D. Lanham, Killing The Fleeing Offender, 1 CRIM. L. J. [Australia] 
16, 17-18 (1977).

33Quoted in R. V. McKay, supra note 32 at 572-573.

34
Id 572.

358 HALSBURY'S STATUTES OF ENGLAND 554 (1969).

^^CRIMINAL LAW REVISION COMMITTEE, SEVENTH REPORT: FELONIES 
AND MISDEMEANOURS 7 (1965) 18 PARLIAMENTARY PAPERS (HOUSE OF COMMONS 
AND COMMAND) (1964-65).

37,,..Wiley V. Memphis Police Department, 548 F. 2d 1247 (1977).

38
Id. 1252

39
Id. 1251

40
Id. 1252

41Mattis V. Schnarr, 547 F 2d 1007 (1976).

42,,..Wiley, supra note 37 at 1252-1253.

43
Id. 1254

44
Oct. 3, 1977.

^^G. NEWMAN, THE PUNISHMENT RESPONSE 7 (1978).



37

“̂̂ 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
(3) 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 
commi tted.

H. L. A. HART, PUNISHMENT AND RESPONSIBILITY 4, 5 (1968).

Professor Packer, in contrast, finds that definition insufficiently 
clear as to the distinction between the purposes and effects of 
punishment, and proposes a sixth defining characteristic of punishment:
"It must be imposed for the dominant purpose of preventing offense 
against legal rules or of exacting retribution from offenders, or both."
H. PACKER, THE LIMITS OF THE CRIMINAL SANCTION 21-23, 31 (1969).

47 U.S. (No. 77-1829, May 14, 1979) 25 CrL 3053.

48
Id. 3058.

49
Id.

50

51

372 U.S. 144 (1963).

Bell V. Wolfish, supra note 47 at 3071

52
Id.

53’̂d. 3065 (Marshall, J., dissenting).

54

55

3058 (Rehnquist, J., for the Court).

’l^. 3071 (Stevens, J. dissenting); PACKER, supra note 46 at 33.

^^Kennedy v. Mendoza-Martinez, 372 U.S.. 144, 168-169 (1963) 
(Goldberg, J., for the Court).



38

57
Id. 169.

^^Furman v. Georgia, 408 U.S. 238, 290 (1972) (Brennan, J., 
concurring).

59
Id. 286.

^^Gardner v. Florida, 430 U.S. 349, 357-358 (1977) (Stevens, J., 
concurri ng).

61
Id.

®^Yick Wo V. Hopkins, 118 U.S. 356, 370 (1886); Johnson v. Zerbst, 
304 U.S. 458, 462 (1938); Screws v. United States, 325 U.S. 91, 123;
Roe V. Wade, 410 U.S. 113, 157 (1973); Mattis v. Schnarr, 547 F. 2d 1007, 
(1976).

^^Comment, supra note 5 at 378; Palko v. Connecticut, 302 U.S.
319, 327 (1937).

A. CRITCHLEY, A HISTORY OF POLICE IN ENGLAND AND WALES 
(2 Ed. 1972).

^^J. BELLAMY, CRIME AND PUBLIC ORDER IN ENGLAND IN THE LATER 
MIDDLE AGES 134 (London, 1973).

66 ...

67

Cited in R. v. McKay, supra note 32.

R. F. HUNISETT, THE MEDIEVAL CORONER 67 (Oxford, 1961)

68
Id. 49.

69Perkins, supra'note 22 at 985.

^®Note, Legalized Murder of a Fleeing Felon, 15 VA. L. REV. 

582, 583 (1929).

71Helwig v. United States, 188 U.S. 605 (1902)

72
Id. 612.

73..,.Child Labor Tax Case, 259 U.S. 20, 37-38 (1921)

74U.S. V. Balint 258 U.S. 250, 251 (1922).



39

75See, e.g. Perkins, supra note 22 at 771

76547 F. 2d. 1007, 1023 (1976).

77J. GIBBS, CRIME, PUNISHMENT AND DETERRENCE (1975).

70
Professor Vlaite argued for extending the right to kill to 

arrest for all offenses in order to deter flight, for otherwise "we 
say to the criminal, 'You are foolish . . .  if you submit to arrest.
The officer dare not take the risk of shooting at you. If you can outrun 
him, outrun him and you are safe. . . .  If you are faster than he is you 
are free and God bless you.' I feel entirely unwilling to give that 
benediction to the modern criminal." 9 ALI PROCEEDINGS 195, quoted in 
J. MICHAEL AND H. WECHSLER, CRIMINAL LAW AND ITS ADMINISTRATION 82 n. 3 
(1940).

^^Judge Learned Hand once commented that "It has been constantly 
supposed here that if you are able to shoot a robber you are less 
likely to have a robber. I question that. I challenge it altogether.
I don't believe that possibility figures at all in the commission of 
crime," 35 ALI PROCEEDINGS 258-334 (1958), quoted in Mattis v. Schnarr, 
547 F. 2d. 1007, 1015 (1976). While Judge Hand's remarks were directed 
specifically towards private citizen's rights to defend property, the 
Mattis court observed that he was speaking to the larger problem of 
justification to use deadly force in general.

80
528 F. 2d. 132, 142 (1975).

®^9 ALI PROCEEDINGS, 186-187, quoted in MICHAEL AND WECHSLER 
supra note 78.

82

court).
Bell V. Wolfish, supra note 47 at 3053 (Rehnquist, J., for the

^^Holloway v. Moser, 193 N.C. 185, 136 S.E. 375, (1927) quoted in 
Pearson, supra note 31 at 964.

84

85

Bell V. Wolfish, supra note 47 at 3072 (Stevens, J., dissenting) 

Storey v. State, supra note 29, at 341.

86

87

R. V. McKay, supra note 32.

Ingraham v. Wright, 430 U.S. 651, 671-672, n. 40 (1977)



40

88 ,U.S. V. Lovett, 328 U.S. 303, 317 (1945).

89

the Court).
Bell V. Wolfish, supra note 47 at 3057 (Rehnquist, J., for

90

91

Mattis V. Schnarr, supra note 41 at 1019. 

Brown v. U.S., 256 U.S. 335 (1921 ).

9240 AM. JUR. 2d., 170-171, as quoted in Mattis v. Schnarr,
supra note 41 at 1015.

93Mattis V. Schnarr supra note 41 at 1019.

^^Note, Specifying the Procedures Required by Due Process: Towards
Limits on the Use of Interest Balancing. 88 HARV. L. REV. 1510, 1519 
(1975).

95R. Dworkin, Taking Rights Seriously, in OXFORD ESSAYS IN
JURISPRUDENCE 202, 214 (2d. Series, A. Simpson ed. 1973), quoted in Note, 
supra note 94 at 1527.

' ^^Morrisey v. Brewer, 408 U.S. 471, 481 (1972); Cafeteria & 
Restaurant Workers Union v. McElroy, 367 U.S. 8 8 6, 895 (1961).

97

98

Note, supra note 94 at 1519. 

See note 62 supra.

99See note 63 supra.

1 00 Note, supra note 94 at 1528-29.

1 0 1 ,,..Wiley V. Memphis, supra note 37 at 1251-52; see also Terry v. Ohio,
392 U.S. 1, 23 (1968).

"’̂^See, for example, the case of nursing home operator Bernard 
Bergman, reported in The New York Times, June 18, 1976, p. 1.

^^^Furman v. Georgia, supra note 24 at 258 (Brennan, J., concurring).

^°^408 U.S. 238.



^^^Wilkerson v, Utah, 99 U.S. 130 (1878); Re Kemmler 135 U.S. 436 
(1890); Louisiana ex rel Francis v. Resweber 329 U.S. 459 (1947); 
Robinson v. California, 370 U.S. 660 (1962).

^^^O'Neil V. Vermont, 144 U.S. 323 (1892) (Field, J., dissenting); 
Robinson v. California, supra note 105 (Douglas, J., concurring).

41

107

108

Trop V. Dulles, 356 U.S. 86 (1958).

Furman, supra note 24 at 256 (Douglas, J., dissenting).

109
428 U.S. 153 (1976) .

 ̂ ^Id.; Proffitt v. Florida, 428 U.S. 242 (1976); Jurek v. Texas, 
428 U.S. 262 (1976); Woodson v. North Carolina, 428 U.S. 280 (1976); 
Roberts v. Louisiana, 428 U.S. 325 (1976); Coker v.Georgia, 433 U.S. 584 (1977)

111

112

See Wilkerson and Resweber, note 105 supra. 

See Screws v. United States, note 62 supra.

*1 *1 O
See the Joe Campos Torres beating and drowning case reported 

in Sherman, The Breakdown of the Police Code of Silence, 14 CRIM. L. BULL,
149 (1978). At least four southern Californian men died from police
choke-holds in one recent year. See B. Cory, Deadly Force, 1 POLICE 
MAGAZINE (5)6 (November, 1978).

"'"'‘̂One study found that police homicide cases are typically not 
referred to a grand jury, and that only 3 cases in some 1,500 ledto 
police officers being criminally punished. A. Kobler, Police Homicide 
In A Democracy, 31 J. SOC ISSUES 163 (1975). A study of police use
of deadly force in 49 Los Angeles county police agencies 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 percent) led to either a reprimand or no punishment at all.
G. F. Uelman, Varieties of Police Policy: A Study of Police Policy 
Regarding the Use of Deadly Force in Los Angeles County; 6 LOYOLA OF 
LOS ANGELES L. REV. 1 (1973). A study of police records in six 
cities found that of the 8 percent of shooting incidents judged improper 
by administrative reviews punishment "generally consisted of a reprimand 
rather than suspension or termination." C. MILTON ET A L ., supra note 
1 0 at 28.

115Trop V. Dulles, supra note 107 at 99.



42

^^^Furman v. Georgia, supra note 24 at 393 (Burger, C. J., 

dissenting).

117

118

See note 10 supra.

'Quoted in MILTON ET AL., supra note 10 at 46.

"'^^The justification, however, is up to the jury to determine 
in light of all the circumstances of a particular case. See HALSBURY'S 
LAWS, note 32 supra.

1 2 0 Fuman, supra note 24 at 394 (Burger, C. J., dissenting).

1 2 1 1 ^  279-280 (Brennan, J., concurring).

^^^"[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. U.S.
V. Rosenberg, 195 F. 2d. 583, 608 (CA2), quoted in Furman, supra note 
24 at 419 (Marshall, J., concurring).

123Trop v.‘Dulles, supra note 107 at 100-101.

124

125

126

Furman, supra note 24 at 278 (Brennan, J., concurring).

'MILTON, ET AL., supra note 10, at 45-49.

Gun Rules Tightened, The Los Angeles Times, September 9, 1977, p. 1

"'̂ B̂. Cory, Police on Trial in Houston, 1 POLICE MAGAZINE (3) 40 

(July, 1978).

^^^Findinqs of Police Deadly Force Study Spark Three-Way 
Controversy in Birmingham, 3 LAW ENF. NEWS (12) (June 21, 1977); 
personal communication with Birmingham Police Chief B. R. Myers, November, 

1978.

"’̂^See also Sarat and Vidmar, Public Opinion, The Death Penalty. 
and the Eighth Amendment: Testing the Marshall Hypothesis 1976 WIS. L. REV. 

T7T.



43

^^^Boston Police Department, Planning and Research Division,
The Use of Deadly Force by Boston Police Personnel,, May 3, 1974, 
ritpd in Mattis v. Schnarr, supra note 4i at lUlb,' n. 19. See also 
Glance, Police Tell Firearm Policies, SAN DIEGO UNION, Oc^. 15, 1975 
( 9 of 10 cities in San Diego County employe defense of life police firearms 
policy). Contra, Leeds and Lowe, Survey finds few rules on police use_ 
of guns, CHICAGO TRIBUNE, Decemiber 5, 1977.

131f. 

10 J. CAL.

Baker, Model Firearms Policy For California Law Enforcement, 

L. ENF. 5 (July, 1975)^ '

^^^FBI Memorandum 31-72, Nov. 21, 1972, quoted in Mattis, suora 
note 41 at 1015: Policies more restrictive than state law 
reported in comment. The Use of Deadly Force in Arizona by o >
1973 L. AND SOC. ORDER 481.

"'^^In the forty 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. Q. WILSON, THE INVESTIGATORS 48 (1978).

^^^Quoted in Mattis, supra note 41, at 1015.

^^^See, e.g. Note, supra note 70; Pearson, supra note 31;
Note supra note 5; comment, supra note 23; comment, supra note 6 ;
J. G.’ Safer", Deadly Weapons in the Hands of Police Officers, On Duty and 
Off Duty, 49 .1 IIRR- I ■ 565 (1972); comment, note 131 supra. See contra 
Miller, in The Law Enforcement Officer's Use of Deadly Force: Two 
Approaches, 8 AM. CRIM. L. Q. 27 (1969).

"'^^U.S. Presidents Commission On Law Enforcement And Administration 
of Justice! Task Force Report: The Police 189-90 (1957).

G. Chapman, Police Policy on the Use of Firearms, THE POLICE 

CHIEF 15 (July 1957).

”'^®For example in San Francisco, St. Louis and Los Angeles in 1966. 
See Task Force Report, note 136 supra at 189.

’'39„|^ill inqs Of Chicanos by Police Protested," NEW YORK TIMES, 
October 12. 1977. o. 17: Houston Quiet After Violence Hospital izes_ 
Over 12," NEW YORK TIMES,-May 9, 19/8, p. 2 2 ; "2 , 0 0 0 A s _ s ^  k o F T ^
^rRlack Rally As'Off-Duty Officers Meet Nearby," NEW YORK TIMES, 
i,,iy 1 7 ~ 1 Q7« p."'B-3: Los Anqeles Police Scored On Shooting^, NEW

TIMES, August 15, 1977, p. 1 3 ^

YORK



44

D. Gilman, Tn Washington, A New Zeal For Prosecuting Poljce,

1 'POLICE MAGAZINE (3) 15, 18 (November, iy/aj.

"'^^Id. Measured by the number of cases in which the victim died, however, 
U.S. Justice Department prosecutions of police officers have actually 
declined under the Carter administration. From 1970 through 1975, the average 
number of federal civil rights prosecutions for police homicide was 4 per^ 
year; in 1977-78 it was only 2 per year. Personal communication from Daniel 
F. Rinzel, Civil Rights Division, U.S. Department of Juveniles, November 30,

19 78 .

"'^^See Comment, note 5 supra at 369, ^nd see, 2 Minnesota Statutes 

1975, 509, 066.

"*^^Minnesota Statutes 1976, 625, 553, subd. 2.

144

145

146

Furman, supra note 24 at 310 (Stewart, J., concurring). 

Xd. 293 (Brennan, J., concurring).

I_d. 253 (Douglas, J., concurring).

^^^Computed from VITAL STATISTICS OF THE UNITED. STATES...!975_V0L. TI 
MORTALITY PART A 1-168 (1979)fBI, CRIME IN THE UNITED STATES 1975, 1979. 
Using the unofficial estimated number of police homicides, the rate was 
one per 3,411, Part I Index arrests.

^^Goldberg and Dershowitz, Declaring the Death Penalty 
Unconstitutional, 83 HARV. L. REV. 1773, 1792 (1970), quoted in 
Furman, supra note 24 at 249 (Douglas, J., concurring).

^^^Until 1958, 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." Quoted 
MILTON, ET AL., supra note 10 at 47. Other "policies" have included 
"Leave the gun in the holster until you intend to use it," and 
left to the discretion of each individual officer when and how 
Id. 47-48.

in

"It is 
to shoot."

150

Process
YALE

'J. Goldstein, Police Discretion Not Jo Invoke The Criminal 
Law Visibility Decisions In The Administration Of Justice, 69 

L. J. 543; D. Black, The Social Organization of Arrest, ~23
STAN. L. REV. 1087 (1971); K.C. DAVIS, POLICE DISCRETION (1975); National 
Institute of Law Enforcement and Criminal Justice, Pol ice Discretion:
A Selected Bibliography (1978).

151 Personal interview, January, 1979.

^^^Conducted by the Project on Homicide By Police Officers, 
Criminal Justice Research Center.



A. Hayden, Police Discretion In The Use Of Deadly Force:
An Empirical Study Of Information Usage In Deadly Force Decision Making, 
unpublished paper. University of New Haven (1979).

^^^428 U.S. 153 (1976).

"’̂^VITAL STATISTICS, supra note 147. The total figure for all 
minority group members is probably somewhat higher, but no official 
statistics for other non-whites are reported.

ST AT I ST I CAL ABSTRACT OF THE UNITED STATES 25 (1975).

45

Takagi A Garrison State in 
& SOC. JUST. (1974).

a "Democratic" Society, 1 CRIME

158See note 5 supra.

 ̂ "'^^E.g., MILTON ET AL., supra note 10 at 19; Burnham, 3 of 5 slain
bv Police Here are Black, Same as the Arrest Rate. NEW YORK TIMES, Auaust 26, 
~S'ee also The Management of Police l<illings, "4 CrTME & SOC. JUST. 34 (1977);
J. S. Goldkamp, Minorities as Victims of Police Shootings: Interpretations 
of Racial Disproportionality and Police Use of Deadly Force 1 JUST. SYST. J. 

159 (19771

197:

160See note 5 supra.

"'̂ R̂. I. Parnas, The Police Response To The Domestic Disturbance, 
1967 WIS. L. REV. 914.

^^^See, accord, the data, and contr^, their interpretation in Black, 
supra note 150. 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 antagonistic to the police and b) the greater tendency 
of black complainants—who do almost all of the accusing of black suspects 
during street encounters with the police—to demand an arrest does not 
remove discrimination in a legal sense. Neither suspect's attitudes nor 
a complainant's preference constitute proper grounds for enforcement 

decisions.

163

154

Robin, supra note 10.

Knoohuizen, et al. The Police and Their Use of Fatal Force In
Chicago, p. 2V (Chicago: Law Enforcement Study Group, 1972).

''^^VITAL STATISTICS, supra note 147; FBI, supra note 147.

166Comment, supra note 5.