§ 11.01   Authorization to Restrain One’s Liberty; "Public Authority" Defense

 

[A]  By Police Officers – At common law, a police officer was authorized to make an arrest under these circumstances.

 

 

[B]  By Private Persons – Private persons have common law authority to make "citizen arrests" for a felony, or for a misdemeanor involving a breach of the peace, [Cantwell v. Connecticut, 310 U.S. 296, 308 (1940)] if: (1) the crime actually occurred; and (2) the private person reasonably believes that the suspect committed the offense. With misdemeanors, the offense must also occur in the arresting person’s presence.

 

§ 11.02   Crime Prevention; Non-deadly Force

 

[A]  Common and Statutory Law – In general, a police officer or private person is justified in using non-deadly force upon another if he reasonably believes that: (1) such other person is committing a felony, or a misdemeanor amounting to a breach of the peace; and (2) the force used is necessary to prevent commission of the offense.

 

[B]  Model Penal Code – A police officer or private person is justified in using force upon another if he believes that: (1) such other person is about to commit suicide, inflict serious bodily injury upon herself, or commit a crime involving or threatening bodily injury, damage to or loss of property, or a breach of the peace; and (2) the force is immediately necessary to prevent the commission of the aforementioned act.

 

§ 11.03   Crime Prevention; Deadly Force

 

[A]  Common and Statutory law – Deadly force may never be used in the prevention of a misdemeanor offense. Deadly force is permitted, however, in the prevention of a felony. A split of authority exists regarding the scope of the right to use deadly force in felony crime prevention.  The minority broadly permits a police officer or private person to use deadly force upon another if he reasonably believes that: (1) such other person is committing any felony (including nonviolent felonies); and (2) deadly force is necessary to prevent commission of the crime.  Most states, however, limit the right to use deadly force to the prevention of "forcible" or "atrocious" felonies.

 

[B]  Model Penal Code – A police officer or private person may not use deadly force to prevent the commission of a crime unless he believes that: (1) a substantial risk exists that the suspect will cause death or serious bodily injury to another person unless he prevents the suspect from committing the offense; and (2) use of deadly force presents no substantial risk of injury to bystanders. [MPC § 3.07(5)(a)(ii)(A)]

 

§ 11.04   Effectuation of an Arrest; Non-deadly Force

 

[A]  Common Law – Non-deadly force to effectuate an arrest is permissible by a police officer or private citizen.

 

[B]  Model Penal Code – A police officer or private person is justified in using force upon another to make or assist in making an arrest, or to prevent the suspect’s escape, if the defendant:

 

 

§ 11.05   Effectuation of an Arrest; Deadly Force

 

[A]  Common Law

 

[1]  Police Officers –  At early common law, police officers could use deadly force to apprehend a suspect even if such force was unnecessary.  Today, most states impose a "necessity" requirement.  Thus, a police officer is justified to use deadly force upon a suspect upon reasonable belief that: (1) the suspect committed a felony; and (2) such force is necessary to make the arrest or to prevent the suspect from escaping. Generally, the rule with regard to arrest applies to all felonies; however, some jurisdictions also limit this rule to forcible or atrocious felonies.

 

However, the rule has been modified and narrowed as a result of Tennessee v. Garner, [471 U.S. 1 (1985)].  Here, an officer in pursuit of a suspect was "reasonably sure" that the suspect was unarmed. The suspect began to climb the fence. After the officer called out "police, halt" and the suspect did not cease his flight, the officer shot him to prevent him from escaping, hitting him in the head and killing him.  Although the officer’s use of deadly force was justified under state law, the Supreme Court found that the exercise of deadly force here was unlawful since the suspect was apparently unarmed.

 

The Court held that a police officer violates the Fourth Amendment prohibition on unreasonable searches and seizures if he uses deadly force to effectuate an arrest, unless: (1) he "has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others"; and (2) such force is necessary to make the arrest or prevent escape. In regard to the necessity element, a warning, if feasible, must be given to the suspect before deadly force is employed. The first condition is satisfied "if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm."

 

[2]  By Private Person – A private person may use deadly force, if reasonably necessary, to arrest or apprehend a felon, but in more limited circumstances than for police officers.  Generally, the circumstances that would justify use of force to apprehend a suspect by a private person include:

 

 

[B]  Model Penal Code – Deadly force may never be used by a private person, acting on his own, to make an arrest or to prevent a suspect’s escape. However, deadly force may be employed by a police officer, or a private person assisting someone he believes is a law enforcement officer, to make an arrest or to prevent the suspect’s escape if the arrest is for a felony and the officer: