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Wright v. Haffke - 188 Neb. 270, 196 N.W.2d 176 (1972)

Rule:

Ordinarily, a firearm may be used if reasonably necessary to prevent the commission of a felony or to arrest a felon after a felony has been committed.

Facts:

James Wright and an individual later identified as Evans entered the store of the defendant, Arthur F. Haffke, at the same time. Haffke did not know either man but assumed they were together. He was suspicious of them and secured a gun he had handy and placed it in his pocket. The two men came back to the checkout stand together. There is a dispute in the evidence as to which one had a carton of milk. Haffke testified it was Evans; Wright insists it was he. One of them set the milk down and asked for cigarettes. Haffke placed the cigarettes on the counter and opened the cash register, then was pushed on the shoulder and knocked off balance into the cigarette case. He then noticed two hands going into the cash register. One of the hands in the cash register had a light cover, the other a black cover. As Haffke turned around, he pulled his gun and fired a shot. The whole incident happened very fast. Haffke’s first shot hit Wright in the back. A second shot was fired at Evans but missed. Evans slipped and fell after the second shot was fired, but got up and ran rapidly toward the west. The entrance and exit to the store was through two doors, side by side, one opening in, the other opening out. The testimony is that Evans headed for the door opening out; Wright for the door opening in. Haffke did not realize at the time he shot that Wright was heading for the door which opened in.

 Wright’s principal assignment of error, his first, pertains to the overruling of his motions for a directed verdict. Wright predicates this assignment on his contentions: (1) That the crime was not his but that of Evans; (2) that he could not escape because he was headed for the door which would not open from the inside; and (3) that the force used by Haffke as a matter of law was unduly excessive to protect or recapture property.

Issue:

Did the force Haffke used exceed permissible limits and subject him to civil liability?

Answer:

No

Conclusion:

The Court held that Haffke had been assaulted and the perpetration of a robbery was in progress. Money had been taken and Haffke’s instantaneous reaction was to stop the felons and retain it. Paraphrasing the Restatement rule, use of force is privileged when property is tortiously taken from the owner's possession and it reasonably appears that the felon is about to remove the property from the owner's premises.

A person may use reasonable force in defense of his property. Ordinarily, a firearm may be used if reasonably necessary to prevent the commission of a felony or to arrest a felon after a felony has been committed

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