Execution Without Trial: Police Homicide and the Constitution (Vanderbilt Law Review)

    VANDERBILT 
LAW REVIEW

E x e c u t io n  W it h o u t  T r ia l ; P o l ic e  H o m ic id e  
AND THE C o n s t it u t io n

Lawrence W. Sherman

© 1980 By Vanderbilt University School of Law

VOLUME 33 JANUARY 1980 NUMBER 1



Execution Without Trial: Police 
Homicide and the Constitution*

Lawrence W. Sherman**
The national debate over the State’s right to take life has been 

sidetracked, in a sense, on the issue of “ capital punishment,”  or 
more precisely, execution after trial. Far more deadly in impact is 
the body of law permitting execution without trial through justified 
homicide by police officers. In 1976, for example, no one was exe­
cuted and 233 persons were sentenced to death after trial, yet an 
estimated 590 persons were killed by police officers justifiably with­
out trial.' Even in the 1950s, when an average of seventy-two persons 
were executed after trial each year,'* the average number of police 
homicides was 240 a year, according to official statistics," and 480 a 
year according to one unofficial estimate.*' Since record keeping 
began in 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, however, derived 
solely from its frequency. Equally important is the nature of the 
crimes that justify police use of deadly force. Unlike executions after 
trial, 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 tbe traditional common-law doctrine, which 
permits the use of deadly force whenever necessary to prevent a 
felony or to arrest someone whom an officer has reasonable grounds

* This writing was supported in part by the National Institute of Mental Health, Center 
for Studies in Crime and Delinquency. 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. 
Director, Project on Homicide by Police Officers, Criminal Justice Research Center, State 
University of New York at Albany. B.A., Denison University, 1970; M.A., University of 
Chicago, 1970; Ph.D., Yale University, 1976.

1. The official death records of the National Center for Health Statistics, preserved on 
tape, show a total of 295 deaths by legal intervention of police for 1976. Independent tests of 
the death record data, however, reveal that they are rather consistently under-reporting police 
homicides by about 50%. Sherman & Langworthy, Measuring Homicide by Police Officers 
70 J. Crim. L. & Criminology 546 (1979). On the number of post-trial death sentences, see 
U.S. Dep’t of Justice, Law Enforcement Assistance A dministration, National Criminal 
Justice Information and Statistics Service, Capital Punishment, 1976: National Prisoner 
Statistics Bulletin SD-NPS-CP5 at 3 (1977) [hereinafter cited as Capital Punishment 
Statistics].

2. Capital Punishment Statistics, supra note 1, at 13.
3. V ital Statistics of the United States, 1950-1959 (Annual).
4. See note 1 supra.

71



72 VANDERBILT LAW REVIEW [Vol. 33:71

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 of “ 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 
deadly force, their targets are often suspects of less serious crimes.'® 
Approximately half of the people at whom police shots were fired 
in the several cities studied have not carried guns, and the propor­
tion of those shot while fleeing is substantial." To 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 Hale’s P.C., 76- 
77.

6. Comment, Policeman’s Use of Deadly Force in Illinois, 48 Cm.-K ent. L. R ev. 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; 
and
(iii) 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 including the 
use or threatened use of deadly force; or
(2) there is a substantial risk that the person to be arrested will cause 
death or serious bodily harm if his apprehension is delayed.

M odel Penal Code, § 3.07(2)(b) (1962).
8. Sherman, Restricting the License to Kill—Recent Developments in Police Use of 

Deadly Force, 14 Crim. L. Bull. 577, 581 (1978).
9. Comment, supra note 5, at 365 n.34.
10. The following table is constructed from four empirical studies of police use of deadly 

force: (1) A study of the 32 persons killed by Philadelphia police officers in 1950-1960. See 
Robin, Justifiable Homicides by Police, 54 J. Crim. L.C. & P.S. 225 (1963). (2) A study of 
911 police killings reported in newspapers around the country in 1965-69. See Kohler, Figures 
(and Perhaps Some Facts) on Police Killings of Civilians in the United States, 1965-1969, 31 
J. Soc. Issues 185 (1975). (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, Indiana; 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. See C. M ilton, J. Halleck, J. Lardner, G. Abrecht, Police Use of Deadly Force 
(1977) [hereinafter cited as C. M ilton]. (4) A study of 5,111 incidents in which New York 
City Police Department officers discharged their weapons, regardless of impact, during 1971- 
1975. See J. Fyfe, Shots Fired: A Typological Examination of New York City Police Firearms 
Discharges (1978) (unpublished Ph.D. dissertation. School of Criminal Justice, State Univer­
sity of New York at Albany).



19801 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 
against 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

Events Preceding Police Use o f Deadly Force

Event Type

Robin, 1963 
(N  =  32)

ST U D Y  FINDINGS*

Kobler, 1975b Milton, et al, 1977 Fyfe, 1978
(N  =  5111)

'A

31

Rank

( 2 )Disturbance Calls:
Family Quarrels 
Disturbed Persons 
Fights 
Assaults
“ Man with a gun”

Robbery: 28 (3)
In Progress 
Pursuit o f Suspect

Burglary: ;17 (1)
In Progress 
Larceny
Tam pering with Auto 
Pursuit o f Suspects

T ra ffic  O ffenses: 3 (4)
Pursuits 
Vehicle Stops

O fficer Personal
Business: ? —

Dispute 
Horseplay 
Accident

Stakeout/D ecoy ? —
Other 0 (5)

(N :

V,

17

:911)

Rank

(4 )

(N z=320) 

Rank 

( 1 )32

V>

25

Rank

( 2 )

20 (3)

27 (2)

30** (1)

21 ( 2 ) 39

20 (3)

(5 ) 12

( 1 )

(4 )

(3 )

( 5 )
4

11

(6.5)

(6 .5 )
(4 ) 6 (5)

"■Percentages may not total 100 due to rounding 
"'■'■Includes other misdemeanors not listed above



74 VANDERBILT LAW REVIEW [Vol. 33:71

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 the historical and constitutional lines 
of inquiry suggest that only the defense-of-life doctrine is appropri­
ate to govern police use of deadly force.

I. T he A n y -F elony R u le : A n H istoric  A nachronism

The original meaning of the common-law justification for homi­
cide to effect a felony arrest was very different from its current 
meaning. A barbaric legal doctrine'^ transplanted to England before 
the common law began,*’ the justification 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 offi­
cers 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, and halberds. The longbow was not introduced 
until 1415,*’ and in 1504 the Tudors restricted the crossbow to lords

11. Of the studies cited in note 10, supra, Kohler, at 188, found 50% of those shot by 
the police to have carried guns at the time and 25% to have been completely unarmed. 
M ilton, at 22, found 45% to have had guns and 43% to have been unarmed. Fyfe, at IV-30, 
found 54% to have had guns, and 30% to have lacked a gun or a knife. Another study found 
53% of the 1969-70 police homicide victims in Chicago to have carried a gun, and 23% to have 
lacked any weapon. Harding & Fahey, Killings by Chicago Police, 1969-70: An Empirical 
Study, 46 S. Cal. L. Rev. 284, 292-93 (1973).

Kobler, at 165, also found that, measured by a defense-of-life standard, only 40% 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% 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 quite different. A study 
of Philadelphia police use of deadly force in 1970-74 found that approximately 45% of those 
people shot had been fleeing at the time, and in approximately 25% of the 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 1970-73 were fleeing 
at the time, and 80 of the 102 were unarmed. See Mattis v. Schnarr, 547 F.2d 1007, 1019-20 
n.30 (8th Cir. 1976).

12. See 4 W. Blackstone, Commentaries 180 (1800) (citing Von Stiernhook, T reatise 
ON Gothic Law).

13. W. M elville-Lee, A History of Police in England 35 (1901).
14. “ Hue and cry," under old English law, refers to the loud outcry with which robbers, 

burglars, and murderers were pursued. All who heard the outcry were obliged to join in 
pursuit of the felon. See 4 W. Blackstone, supra note 12, at 293.

15. L. Smith, T his Realm of England 1399-1688, at 15 (1966).



1980] POLICE HOMICIDE 75

and large landowners.'* Henry VIII allowed noblemen and wealthy 
commoners to own guns,'  ̂but “ [t]he musket of Shakespeare’s time 
could not reach an enemy thoughtless enough to stand farther 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 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 a distance behind while 
they were in flight.

That meaning changed in the nineteenth century with the in­
vention of the revolver. Police officers 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 crimi­
nals used revolvers to shoot and kill their colleagues.*" The dumping 
of thousands of army revolvers on the surplus market after the Civil 
War speeded the general rearmament of an increasingly violent 
urban society*' and led to official acceptance of police use of revolv­
ers.** The immediate effect of this change was that the police could, 
and did, shoot fleeing suspects who 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 death,** the felony label was attached to 
many more crimes after the advent of the revolver.** Moreover, 
while the scope of felonies was expanding, the scope of capital felon­
ies contracted, leaving the death penalty in most states only applic­
able to treason and crimes endangering life or bodily security.*"

16. L. Kennett & J. Anderson, T he Gun in A merica 22 (1975).
17. Id. at 23.
18. R. Sherrill, T he Saturday N ight Special 4 (1973).
19. G. Elton, Policy and Police 4, 5 (1972).
20. L. Kennett & J. Anderson, supra note 16, at 151; R. Lane, Policing T he City 103- 

04 (1967); J. R ichardson, T he N ew York Police 113 (1970).
21. L. K ennett & J. Anderson, supra note 16, at 91.
22. Tliis did not occur witliout tlie strenuous objections of some police commanders who 

thougtit the use of revolvers was cowardly. See W. M iller, Cops and Bobbies, 51-53 (1977).
23. R. Perkins, Criminal Law 10-11 (2d ed. 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 W. Blackstone, supra note 12, at 98.

24. Comment, Use of Deadly Force in the Arrest Process, 31 La. L. Rev. 131, 132-33 
(1970); see 4 W. Blackstone, supra note 23.

25. Furman v. Georgia, 408 U.S. 238, 333-41 (1972) (Marshall, J., concurring).



76 VANDERBILT LAW REVIEW [Vol. 33:71

These changes in the legal context of police homicide significantly 
altered the meaning of the common-law any-felony doctrine. The 
changes greatly expanded the number of situations in which the 
police could kill without trial, and they created a gross difference 
in proportion between the severity of the post-trial penalty and the 
severity of the penalty for attempting to escape arrest.

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 in 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 social goal of retribution was thus 
easily frustrated by a fleeing felon. By the eighteenth century, how­
ever, Justice Fielding was circulating 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 techniques 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 impact of the any-felony doc­
trine did not escape public notice and criticism. An 1858 New York 
Times editorial questioned one of the first police shootings there, 
making a value judgment supported by the constitutional analysis 
below. The Times suggested, “ 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 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 pos­
sible future in which “ fejvery policeman is to be an absolute mon­
arch, 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 even the forms of trial or legal inquiry of any 
kind,” ”  a future that, to a large extent, has been realized.

These changes did not escape the notice of the courts. As early

26.
27. 

(1937).
28. 
29.

P. Pringle, Hue and C ry 133 (1955).
T he Professional T hief, by a Professional T hief (E .H . Sutlierland, ed.) 112

Quoted in L. K ennett & J. Anderson, supra note 15, at 150.
Quoted in M iller, supra note 21, at 146.



1980] POLICE HOMICIDE 77

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 with 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 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.

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 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

30. Storey v. State, 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 

Tenn. 720 (1879).
32. Pearson, The Right to Kill in Making Arrests, 28 M ich. L. Rev. 957, 976 (1930).
33. Regina v. McKay [1957] V.R. 560, 572-73 (Smith, J., dissenting); 11 Halsbury’s 

Laws of England § 1179 (4th ed. 1976) (emphasis added). 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 Lanham, Killing the Fleeing Offender, 1 Crim. 
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.



78 VANDERBILT LAW REVIEW [Vol. 33:71

anything would turn nowadays on the distinction between felony 
and misdemeanor is 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-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” ’* (some­
thing that we have seen is clearly not the case in English common 
law), the court rejected a broad constitutional challenge to the stat­
ute. An argument 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.” ”  The assertion that the 
statute violated due process protections was rejected on the grounds 
that state interests served by police homicide were more important 
than an individual’s right to trial before being killed by police.”  
While recognizing that the Eighth Circuit had recently held that a 
similar Missouri statute did violate fifth and fourteenth amendment 
due process guarantees,”  the Sixth Circuit criticized that decision 
for intruding into legislative matters.”  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 Memphis police.” ”  The Su­
preme 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 well established Supreme Court stan­
dards, police homicide clearly constitutes punishment. When police 
homicide is viewed as punishment, the fifth, fourteenth, and eighth 
amendment arguments that all present police homicide statutes

36. Criminal Law Revision Committee, Seventh Report; Felonies and M isdemeanours 
7 (1965); 18 Parliamentary Papers (House of Commons and Command) (1964-65).

37. Wiley v. Memphis Police Dep’t, 548 F.2d 1247 (6th Cir.), cert, denied 434 U.S. 822
(1977).

38.
39.
40.
41.
42.

Id. at 1252.
Id. at 1251.
Id. at 1252.
Mattis V. Schnarr, 547 F.2d 1007 (8th Cir. 1976).
Wiley V. Memphis Police Dep’t, 548 F.2d 1247, 1252-53 (6th Cir.), cert, denied 434 

U.S. 822 (1977).
43. Id. at 1254.
44. Wiley v. Memphis Police Dep’t, 434 U.S. 822 (1977).



19801 POLICE HOMICIDE 79

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

II. C o n s t it u t io n a l  A n a l y s is

A. The Characterization of Police Homicide as Punishment
The often elusive 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 of inflicting pain or suffering.As the recent ruling 
in Bell u. Wolfish*’’ reveals, the issue of intent has likewise proved 
to be divisive in the Supreme Court’s efforts to define deprivations 
that constitute punishment. Justice Rehnquist, 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 v. 
Mendoza-Martinezp** 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 ewman, T he Punishment 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
(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 committed.

H. Hart, Punishment and Responsibility 4, 5 (1968).
Professor Packer, 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 be 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).
48. !d. at 1873.
49. Id. at 1873-74.
50. 372 U.S. 144 (1963).
51. 99 S. Ct. at 1899.



80 VANDERBILT LAW REVIEW [Vol. 33:71

Stevens said, “ the [Mpndoza] Court stated that certain other 
‘criteria’ must be applied ‘to the face’ of the official action to deter­
mine if it is punitive.” ®̂ Even Justice Rehnquist, whose opinion in 
Bell V. Wolfish reveals a very restrictive conception of what consti­
tutes punishment, cited the seven Mendoza criteria approvingly. 
Although he did not, as Justice Marshall pointed out,”  make full 
use of them, he nonetheless refers to them as “ useful guideposts in 
determining” what is punishment, calling them “ the tests tradition­
ally applied to determine whether a governmental act is punitive in 
nature.” ”

With the original intent of the Gothic chieftains in establishing 
the kill-to-arrest rule lost in history, and determination of the 
subjective intent of police officers acting within the rule vulnerable 
to “ hypocrisy and unconscious self-deception,” ”  it is necessary to 
turn to the criteria used in Mendoza and apply them “ to the face” 
of police homicide to determine whether that action constitutes 
punishment. The decision offered seven criteria:

[1] Whether the sanction involves an affirmative disability or restraint,
[2] whether it has historically been regarded as a punishment,
[3] whether it comes into play only on a finding of scienter,
[4] whether its operation will promote the traditional aims of punish­
ment—retribution and deterrence,
[5] whether the behavior to which it applies is already a crime,
[6] whether an alternative purpose to which it may rationally be connected
is assignable for it, and
[7] whether it appears excessive in relation to the alternative purpose as­
signed. . .

The Mendoza Court noted that all of these criteria are relevant to 
the inquiry, although they “ may often point in differing direc­
tions.” ”  All seven criteria, however, suggest that police homicide 
constitutes punishment, as is clear when each criterion is examined.

(1) Whether the sanction involves an affirmative disability or 
restraint. Recent pronouncements by the Court leave no doubt that 
the sanction of police homicide constitutes “ an affirmative disabil­
ity or restraint.” It is not only a deprivation of rights, but a depriva­
tion of “ the right to have rights,” ”  not only a sanction, but a 
“ unique” sanction. As Justice Brennan stated, “ [i]n a society that 
so strongly affirms the sanctity of life, . . . the common view is that

52. Id.
53. Id. at 1887 (Marshall, J., dissenting).
54. Id. at 1873.
55. Id. at 1898 (Stevens, J., dissenting); H. Packer, supra note 45, at 33.
56. 372 U.S. at 168-69.
57. Id. at 169.
58. Furman v. Georgia, 408 U.S. 238, 290 (1972) (Brennan, J., concurring).



1980] POLICE HOMICIDE 81

death is the ultimate sanction.”®* Five members of the present Court 
have “ expressly recognized that death is a different kind of punish­
ment from any other which may be imposed in this country” and 
stated that “ [fjrom 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 effect no matter 
what the expressed purpose may be.

(2) Whether it has historically been regarded as punishment. 
The historical record clearly demonstrates that executions without 
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. Id. at 286.
60. Gardner v. Florida, 430 U.S. 349, 357-58 (1977) (Stevens, J., concurring).
61. Roe V. Wade, 410 U.S. 113, 157 (1973); Screws v. United States, 325 U.S. 91, 123 

(1945); Johnson v. Zerbst, 304 U.S. 458, 463 (1938); Yick Wo v. Hopkins, 118 U.S. 356, 370 
(1886); Mattis v. Schnarr, 547 F.2d 1007, 1018 (1976).

62. Quoted in T. Critchley, A History or Police in England and W ales (2d ed. 1972). 
J. Bellamy, Crime and P ublic Order in England in the Later M iddle Ages 13463. 

(1973).
64.
65.
66.

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



82 VANDERBILT LAW REVIEW [Vol. 33:71

logical to authorize the use of deadly force.” ®’ Another commentator 
on killing fleeing felons described “ the extirpation [as] but a pre­
mature execution of the inevitable judgment” in the era of capital 
punishment for all felonies.®* With the passing of that era, prema­
ture execution is of course more severe than the “ inevitable judg­
ment.” The historical character of police homicide as punishment, 
however, is not altered by the modern disproportion between 
pretrial and post-trial sanctions.

(3) Whether it comes into play only on a finding o/scienter. The 
basis and parameters of the Mendoza Court’s “ scienter” criterion 
are unclear. Of the two cases cited to support the relevance of 
scienter to a punishment characterization,®® one in fact holds that 
penalties may constitute punishment regardless of scienter, appar­
ently contradicting the point for which it was cited. The holding 
stated that, regardless of scienter, any fine imposed on an import 
merchant for underestimating the value of certain goods was “ still 
punishment and nothing else.” ’" 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. The court in that 
case opined that, “ [Sjcienter is associated with penalties, not with 
taxes.” ”  Neither case actually holds that punishment is only im­
posed after a finding of scienter.

The apparent contradictions notwithstanding, the Supreme 
Court has held that “ the general rule at common law was that 
scienter was a necessary element . . .  of every crime.” ”  Regardless 
of criticisms of this usage,”  one may proceed from it to infer that 
when an officer finds sufficient cause to believe someone is a felon 
and thus has met a requisite justification for killing him, the officer 
finds scienter at the same time. If the officer does not have probable 
cause to believe that scienter is present, then he does not have 
probable cause to believe the person is a felon, and killing is not 
justified. Justified police homicide therefore historically presumes 
scienter, and satisfies the apparent meaning of this Mendoza crite­
rion of punishment.

(4) Whether its operation will promote traditional aims of pun­
ishment—retribution and deterrence. Police homicide clearly pro-

67. R. Perkins, supra note 23, at 985.
68. Note, Legalized Murder of a Fleeing Felon, 15 Va. L. Rev. 582, 583 (1929).
69. Helwig v. United States, 188 U.S. 605 (1902).
70. Id. at 612.
71. Child Labor Tax Case, 259 U.S. 20 (1921).
72. United States v. Balint, 258 U.S. 250, 251 (1922).
73. See, e.g., R. Perkins, supra note 23, at 771.



1980] POLICE HOMICIDE 83

motes retribution, the first of the two “ traditional aims of punish­
ment” named by the Mendoza Court. As the dissent in Mattis v. 
Schnarr,’’* a recent Eighth Circuit decision, argued in support of the 
any-felony rule, which the court had 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 desserts,”  or retribution.

Whether police homicide, or indeed any punishment, actually 
promotes deterrence, the second of the two traditional aims named, 
may be an impossible question to answer.̂ ® If undisputed empirical 
evidence 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 deterrent effect need 
only be hypothesized for the sanction to be a punishment, then 
police homicide passes the test. The assumption by legal scholars 
that police homicide has a deterrent effect is reflected in the Ameri­
can Law Institute’s debates over the issue. The deterrence of flight 
from arrest’* and the deterrence of robbery”  were both specifically 
mentioned, albeit with differences of opinion. The deterrence hy­
pothesis is also implied in recent federal cases, such as Jones v. 
Marshall, a  Second Circuit opinion in which a three judge panel 
upheld Connecticut’s common law permitting police to kill fleeing 
felons, observing that the states had the right to place a higher 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 already a crime. 
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

74. 547 F.2d 1007, 1023 (8th Cir. 1976).
75. J. G ibbs, Crime, P unishment and Deterrence (1975).
76. Professor Waite 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 
(1931), quoted in .1. M ichael & H. W echsler, Criminal Law and its Administration 81-82 
n.3 (1940).

77. 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 
(8th Cir. 1976). While Judge Hand’s remarks were directed specifically towards private citi­
zens’ rights to defend property, the Mattis court observed that he was speaking to the larger 
problem of justification to use deadly force in general. Id. at 1015 n.l7.

78. 528 F.2d 132, 142 (2d Cir. 1975).



84 VANDERBILT LAW REVIEW [Vol. 33:71

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 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, we are in fact killing the auto thief for the volatile combina­
tion of felony and flight, both of which are crimes.

(6) Whether an alternative 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 imposed 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 inherent 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, “ [t]he 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. ALI Proceedings, 186-87, quoted in J. M ichael & H. W echsler, supra note 76.
80. 99 S. Ct. at 1873.
81. Holloway v. Moser, 193 N.C. 185, 136 S.E. 375, (1927), quoted in Pearson, supra 

note 32, at 964.



1980] POLICE HOMICIDE 85

Unlike the other Mendoza criteria, this one is explicitly quali­
fied by the succeeding criterion, which questions whether the possi­
ble alternative purpose to punishment appears excessive. No matter 
what the primary purpose of police homicide is judged to be, then, 
if it appears excessive in relation to a nonpunitive purpose, 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, . . . courts 
must be justified in drawing an inference of punishment.” *̂

(7) Whether it appears excessive in relation to the alternative 
purpose assigned to it. The disparity between the death of 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 would be im­
posed upon sentencing for all crimes (depending on the jurisdiction) 
except murder, treason, and rape. It is significant in the case of 
prevention of nonviolent 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 nonlethal 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 exces­
sive.

Each of the Mendoza criteria point to the conclusion that 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 punish­
ment, however, it is still a deprivation of rights subject to the due 
process requirements of the fifth and fourteenth amendments. Al­
though a ruling that police homicide constitutes punishment has 
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. Regina v. McKay, [1957] V.R. 560.
85. Ingraham v. Wright, 430 U.S. 651, 671-72, n.40 (1977).



86 VANDERBILT LAW REVIEW [Vol. 33:71

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 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 partic­
ularly strict. It requires that “ [n]o person shall be held to answer 
for a capital, or otherwise infamous crime unless on a presentment 
or indictment of a grand jury.” Indeed, the Eighth 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 precisely 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 barm 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 fail 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 without 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 f l^ e d  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 the

86. United States v. Lovett, 328 U.S. 303, 317 (1946).
87. 99 S. Ct. at 1872.
88. Mattis v. Schnarr, 547 F.2d 1007, 1018-19 (8th Cir. 1976).
89. Brown v. United States, 256 U.S. 335 (1921).
90. 40 Am. Jur. 2d Homicide §§ 170-71, quoted in Mattis v. Schnarr, 547 F.2d 1007, 

1015 (1976).
91. Mattis V. Schnarr, 547 F.2d 1007, 1019 (1976).
92. Note, Specifying the Procedures Required by Due Process: Towards Limits on the 

Use of Interest Balancing, 88 Harv. L. Rev. 1510, 1524 (1975).



19801 POLICE HOMICIDE 87

Government must be a right to do something even when the major­
ity 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 and trial 
before he is executed.

The balancing test is, however, the prevailing method of deter­
mining how much process is due once it is determined that due 
process applies.*  ̂ Although the severity of individual deprivation 
and the relative importance of governmental interest in summary 
action is arguably incommensurable,even a balancing procedure 
should lead reasonable men and women to a more restrictive scope 
of executions without trial. Both the fifth and fourteenth amend­
ments specifically forbid deprivation of life without due process of 
law, so 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 right to life*® and the right not 
to be deprived of life without the due process of trial*’ against the 
state’s interest, not just the interest in general public safety, but its 
narrow interest in protecting the property and lives of other specific 
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, however, far more compelling, and much more appro­
priate for a balancing test.** When someone poses an immediate 
threat of grievous injury to another, the use of a balancing test 
would lead to the conclusion that the state’s interest in protecting 
the other person allows it to commit an execution without the due 
process of a trial. It is not necessary, however, to adopt the balanc­
ing 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 irrespective of their association with the state. The 
police can kill those posing an immediate threat of violence without

9.3. Dworkin, Taking Rights Seriously, in Oxford Essays in Jurisprudence 202, 214 (2d 
Series 1973), quoted in Note, supra note 92, at 1527 n.76.

94. Morrissey v. Brewer, 408 U.S. 471, 481 (1972); Cafeteria & Restaurant Workers 
Union v. McElroy, 367 U.S. 886, 895 (1961).

95. Note, supra note 92, at 1519.
96. See note 61 supra and accompanying text.
97. See Palko v. Connecticut, 302 U.S. 319, 327 (1937); Comment, supra note 5, at 378.
98. Note, supra note 92, at 1528-29.



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

s s .  Wiley V. Memphis Police Dep’t, 548 F.2d 1247, 1251-52 (8th Cir. 1S76). See also 
Terry v. Ohio, 3S2 U.S. 1, 23 (1S68).

100. For an example of such a sentence, see the case of nursing home operator Bernard 
Bergman, reported in N.Y. Times, June 18, 1876, § A, at 1, col. 7.



19801 POLICE HOMICIDE 89

cisely."" Nonetheless, four criteria for judging 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 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) 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 review."* Under the present any-

101. Furman v. Georgia, 408 U.S. 238, 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); Wilkerson 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); Roberts v. Louisiana, 428 U.S. 

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

109. See Louisiana v. Resweber, 329 U.S. 459 (1947); Wilkerson v. Utah, 99 U.S.^130 
(1878).

110. See Screws v. United States, 325 U.S. 91 (1945).
111. See Sherman, The Breakdown of the Police Code of Silence, 14 Crim. L. Bull. 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. 
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%) led to either a reprimand or no punishment at all. Uelman, Varieties of Police Policy:



90 VANDERBILT LAW REVIEW [Vol. 33:71

felony rule, prosecutors are on firm ground for declining to prosecute 
police officers who beat felony suspects 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 whether 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."’ When 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 his 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 English 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.L. Rev. 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.”  M ilton, supra note 10, at 28.

113. 408 U.S. at 394 (Burger, C.J., dissenting).
114. Id. at 393 (Burger, C.J., dissenting).
115. See note 10 supra.
116. M ilton, supra note 10, at 46.
117. The justification, however, is up to the jury to determine in light of all the circum­

stances of a particular case. See 11 Halsbury’s Laws, supra note 33, § 1180.



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 the 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 more 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. 238, 360 (1972) (Marshall, J., concurring).

120. Trop V. Dulles, 356 U.S. 86, 100-01 (1958).
121. 408 U.S. at 278 (Brennan, J., concurring).
122. M ilton, supra note 10, at 45-49.
123. Gun Rules Tightened, L.A. Times, Sept. 9, 1977, at 1.
124. Cory, Police on Trial in Houston, Police M agazine, July 1978, at 33, 40.
125. Findings of Police Deadly Force Study Spark Three-Way Controuersy in 

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



92 VANDERBILT LAW REVIEW [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 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 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 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 operates one of the most hazardous types 
of law enforcement programs,'*® 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 powerful 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 Wis. L. Rev. 171, 179.

127. Planning and Research Division, Boston Police Department, The Use of Deadly 
Force by Boston Police Personnel, (May 3, 1974), cited in Mattis v. Schnarr, 547 F.2d 1007, 
1016 n.l9. See also Glance, Police Tell Firearm Policies, San Diego Union, Oct. 16,1975, (nine 
of ten cities in San Diego County employ a defense-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. 
E nforcement 5 (1975).

129. FBI, Memorandum 31-72 (Nov. 21, 1972), quoted 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 Soc. 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. W ilson, T he Investigators 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. But 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 Police Chief, July 1967, at
16.

134. President’s Commission on Law Enforcement and Administration of Justice, 
T ask Force Report; 'The Police 189-90 (1967).



1980] POLICE HOMICIDE 93

lent—over police use of deadly force in minority communities. In 
the 1960s, several race riots were precipitated by police shootings.
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 such protests throughout the late 1970s.'’® In the 
Southwest, minority groups even managed to enlist President 
Carter’s concern for the problem,'”  leading to an intensified effort 
at federal prosecution of police for civil rights violations.'’* Yet as 
long as the any-felony rule survives, many of the incidents that stir 
public outrage will remain legal and beyond prosecution.

Although state legislatures appear less vulnerable to such pro­
tests than police chiefs and mayors, a steadily growing number of 
legislatures have nonetheless reflected the apparent change in pub­
lic sentiment toward police homicide. Since 1973, at least eight 
states'”  have adopted the Model Penal Code limitations on the use 
of deadly force to arrest. Minnesota has even required that all police 
shootings be reported to the state government, in part for monitor­
ing purposes.'”  Taken in conjunction with the developments in po­
lice policy, scholarly opinion, and public protests, the state legisla­
tive actions are consistent with the general trend toward restricting 
executions without trial as unacceptable to society.

(4) Arbitrary infliction. 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.'®' It can 
be likened to a virtual lottery system in which there are no safe­
guards for the capricious selection of criminals for the punishment 
of death.'”  Even in police departments with comparatively restric-

135. For example, such riots occurred in San Francisco, St. Louis and Los Angeles in 
1966. See id. at 189.

136. Killings of Chicanos by Police Protested, N.Y. Times, Oct. 12, 1977, § A, at 17 col. 
1; Houston Quiet After Violence Hospitalizes Over 12, N.Y. Times, May 9, 1978, at 22 col. 1; 
2,000 Assail Police at Black Rally As Off-Duty Officers Meet Nearby, N.Y. Times, July 17, 
1978, § B, at 3, col. 1; Los Angeles Police Scored on Shooting, N.Y. Times, Aug. 15, 1977, at 
13 col. 1.

137. Gilman, In Washington, A New Zeal for Prosecuting Police, Police M agazine, 
Nov. 1978, at 15, 18.

138. Id. Measured by the number of cases in which the victim died, however. Justice 
Department prosecutions of police officers have actually declined under the Carter adminis­
tration. From 1970 through 1976, the average number of federal civil rights prosecutions for 
police homicide was four per year; in 1977 and 1978 it was only two per year. Personal 
communication from Daniel F. Rinzel, Civil Rights Division, U.S. Department of Justice 
(November 30, 1978).

139. See M inn. Stat. § 609.066 (1976); Comment, supra note 5, at 368-69.
140. M inn. Stat. § 626.553 (1976).
141. Furman v. Georgia, 408 U.S. 238, 310 (Stewart, J., concurring).
142. Id. at 293 (Brennan, J., concurring).



94 VANDERBILT LAW REVIEW [Vol. 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 when their 
restrictive policy allows it.'** Many police officers are punished for

143. Id. at 253 (Douglas, J., concurring).
144. Computed from N ational Center for Health Statistics, Public H ealth Service, 

D epartment of Health, Education and W elfare, V ital Statistics of the United States 1975 
II Mortality Part A 1-168; 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.

145. Goldberg and Dershowitz, Declaring the Death Penalty Unconstitutional, 83 H arv. 
L. Rev. 1773, 1790 (1970), quoted in Furman v. Georgia, 408 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 individual officer 
when and how to shoot.” Id. at 47-48.

147. K. Davis, Police D iscretion (1975); National Institute of Law Enforcement and 
Criminal Justice, Police D iscretion: A Selected B ibliography (1978); Black, The Social 
Organization of Arrest, 23 Stan. L. Rev. 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).



1980] POLICE HOMICIDE 95

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 they were 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 argument against the use of 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 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. The Project on Homicide by Police Officers, Criminal Justice Research Center, 
State University of New York at Albany, has 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. 15.3 (1976).
152. N ational Center for H ealth 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. Bureau of the Census, Department of Commerce, Statistical Abstract of the 
United States 25 (1976).



96 VANDERBILT LAW REVIEW [Vol. 33:71

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 FBI 
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,'** although 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 FBI Index offense 
arrests.'*’

154. P. Takagi, A Garrison State in a "Democratic" Society, in Police 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; Goldkamp, 
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. Parnas, The Police Response to the Domestic Disturbance, 1967 Wis. L. Rev. 914.
159. 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 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 complain­
ant’s preference constitute proper grounds for enforcement decisions. Id. at 1097-1107.

160. Robin, supra note 10.
161. R. Knoohuizen, R. Fahey, & D. 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] 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 
tbe 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 umm ary  and C onclusion

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 National Institute 
OF Law Enforcement 194 (1972).

165. 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 state 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
tion 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 
have unconsciously adopted by giving 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 
taking 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 
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. 
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

168. See generally B. Chapman, P olice State (1970); R. Fosdick, European Police 
Systems 17-20 (1915); Bayley, The Police and Political Development in Europe in T he Forma­
tion of National States in W estern E urope 328-79 (C. Tilly, ed. 1975).



1980] POLICE HOMICIDE 99

Mattis V. Schnarr,'^  ̂ a policy that allows police to kill someone 
who the officer reasonably believed “ would use deadly force 
against the officers or others if not immediately apprehended” re­
quires too much guessing and analysis for an emergency situation. 
This language differs sufficiently from the “ immediate danger” lan­
guage of the FBI’s policy to include the killing of a fleeing felon 
merely because he is labeled “ armed and dangerous,” (as opposed 
to 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 some­
one. Such a policy places an undue burden on the police officer. 
When people commit overt threatening acts, however, there is much 
less ambiguity.

A self-defense policy 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 evaluate all the details 
of the suspect’s con d u c t .O n  the contrary, for precisely that reason 
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 specificed “ forcible” 
felonies, the approach used in ten states. As a former Los Angeles 
Police Department policy observed, “ [it] is not practical to enu­
merate specific felonies.” '̂ ' An informal survey of police officers 
from three New York state police departments found that none of 
them could remember the types of felonies which warranted the use 
of deadly force under New York state law.’’  ̂ With a self-defense 
policy, there is nothing complex to remember, and no need to con­
sider prior events; the officer need only evaluate the information he 
observes to assess whether someone is committing an overt act sig­
naling an immediate threat to the officer or someone else.

It is not the practicality of the defense-of-life rule that makes 
it constitutional, however; that is merely a fortunate byproduct. 
Rights cannot depend on administrative convenience, especially not 
the right to life. The defense-of-life rule is necessary for the simple

169. See Mattis v. Schnarr, 547 F.2d 1007, 1023 (8th Cir. 1976) (Gibson, C.J., dissent­
ing).

170. Perkins, supra note 23, at 986.
171. M ilton, supra note 10, at 48.
172. This survey was conducted by the Project on Homicide by Police Officers, Crimi­

nal Justice Research Center, State University of New York at Albany.



100 VANDERBILT LAW REVIEW [Vol. 33:71

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