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Hypothetically, let's say I come across a police officer about to discharge his firearm at a person laying face down on the ground, hands in my clear view, clearly (to me) unarmed and apparently complying with the officer's instructions. Am I legally able to use my own firearm to use lethal force against the officer to protect the apparently unarmed man? How do laws that allow me to use lethal force against the general population apply when the individual I would be defending from is a police officer?

Am I obligated to do anything before firing, such as instruct the officer to drop his weapon?

9

I'll use Washington state as my source, but laws will be similar in other states. RCW 9A.76.020 outlaws obstructing a law enforcement officer, which this would be: it is a gross misdemeanor. In using lethal force, you would have committed first degree murder, under RCW 9A.32.030. There is a defense that can be used, per RCW 9A.16.050, that homicide is justified when:

In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his or her presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished.

Law enforcement officers have access to justifiable homicide defenses as well under 9A.16.040, for example

(b) When necessarily used by a peace officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty

or

(c) When necessarily used by a peace officer or person acting under the officer's command and in the officer's aid: (i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony

The outcome of the case would hinge in part on whether the officer's arrest and use of force was lawful. To take two extremes, if the guy on the ground had just killed a dozen people and was aiming to rack up another dozen kills, the officer's arrest would almost certainly be held to be legal and his degree of force justified. Your personal belief that the suspect was compliant and unarmed might be refuted by the facts. On the other hand, if the guy on the ground had slept with the officer's sister and the officer wanted to rid the world of this vermin, then the arrest and force would almost certainly be held to be not legal.

It can be legal to use deadly force to resist unlawful arrest. See John Bad Elk v. United States, 177 U.S. 529, where the court held that

if a party resisted arrest by an officer without warrant, and who had no right to arrest him, and if, in the course of that resistance, the officer was killed, the offence of the party resisting arrest would be reduced from what would have been murder, if the officer had had the right to arrest, to manslaughter

The court also said

where the officer is killed in the course of the disorder which naturally accompanies an attempted arrest that is resisted, the law looks with very different eyes upon the transaction when the officer had the right to make the arrest from what it does if the officer had no such right. What might be murder in the first case might be nothing more than manslaughter in the other, or the facts might show that no offense had been committed.

This ruling has been somewhat eroded, in US v. Simon:

We recognize that law enforcement officers are frequently called on to make arrests without warrants and should not be held, so far as their personal security is concerned, to a nicety of distinctions between probable cause and lack of probable cause in differing situations of warrantless arrests. It is for this reason we believe that the force of John Bad Elk has been diminished

The upshot of this is that (assuming no warrant), leeway is granted to officers in assessing probable cause (I'm not sure anybody really knows at a general conceptual level what constitutes "probable cause". The court seems to imply that the remote hearsay used as the basis for the arrest would not have been sufficient for a warrant, but it was "reasonable grounds" for believing accused had committed a crime).

Your premise that the officer is about to shoot would have to be substantiated by some fact, such as a declaration "I'm gonna kill you". Otherwise, your belief that the officer was about to commit unjustified murder would itself be unjustified. With better fleshing out of the circumstances, you could manufacture a justified-homicide scenario.

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    Also, Bad Elk's holding has been made obsolete by statutes in many states that remove the right to resist an unlawful arrest (as recommended by the Model Penal Code). – user3851 Jul 22 '16 at 16:33
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    I wonder why do they specify "husband, wife, child... or any other person in his or her presence" Wouldn't it mean exactly the same thing if it said "In the lawful defense of the slayer, or of any other person in his or her presence or company" instead, or is there a juridical argument for it? – Davidmh Jul 23 '16 at 13:36
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    @Davidmh: As written, the law allows protection of your family even if they are not present (say the victim was on hIs way to your home) but not of others. – Tim Lymington supports Monica Feb 8 at 18:21
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Absent a special contract, nobody has a legal obligation to defend another person from assault or battery – not even police.

The use of lethal force can be justified if one reasonably believes it is necessary to prevent imminent (and unjustified) death or great bodily harm to oneself or another.

As usual, the "reasonable person" test would be applied by the judicial system, potentially in an adversarial court trial, to determine whether your use of lethal force was justified. The results would be very specific to the facts presented and their interpretation by a judge and/or jury.

Therefore, the remainder of this answer is simply my opinion and conjecture:

Would a reasonable person think that a person pointing a gun at another person constitutes an imminent threat? Without additional information, no. There are all sorts of legal reasons to brandish a gun, and very few of them result in the discharge of a firearm. Furthermore, if the person brandishing the gun is a police officer a "reasonable person" would have further reason to believe that the officer is exercising his lawful duties, and not engaged in unlawful assault.

Under what circumstances might it be reasonable to shoot an officer holding a person at gunpoint? You would have to show reasonable belief that:

  1. The officer had an imminent intent to fire his weapon.
  2. The officer would not be justified in doing so.

It is hard to imagine a scenario in which you could reasonably form those beliefs. However, if you observed the officer discharge his weapon, and he continued his armed assault, and it was clear to you that he was shooting at a person that posed no immediate threat to another person, then it's conceivable your use of lethal force would considered justified. (But what if you had just come across a poorly controlled movie set? Or what if the "apparently unarmed man" was about to trigger a remote bomb detonator? You could still be found civilly or criminally liable for the consequences of your use of force.)

Another hypothetical scenario: If it was known that a dangerous criminal was at large impersonating a police officer and shooting people, and you had reasonable confidence that the gunman you found was that criminal, you might be justified in shooting him. But again, unless you observed him actually discharging his weapon towards a person, you would have a hard time arguing that the peril was imminent and unavoidable. That's why many defensive shootings are preceded by a verbal warning (e.g., "Stop or I'll shoot!").

  • Your reasoning has one big flaw. There is no situation where it would be legal to point a gun at someone but illegal to fire that gun. – vsz Jul 23 '16 at 11:22
  • @vsz: While that's a good heuristic, AFAIK that's not legally correct. Pointing a gun at someone is brandishing and assault, and the statutory allowances for such behaviors are not extraordinarily demanding. Firing a gun at a person could be everything from reckless endangerment to attempted murder, and statutory defenses against such crimes are quite demanding. – feetwet Jul 23 '16 at 14:50
  • I agree that pointing a gun at someone is a lesser crime than shooting at someone (if unjustified), what I meant is that there is no situation when pointing the gun at someone would be completely legal but shooting wouldn't. In practice, however, it might happen that for just pointing a gun you will not be prosecuted (for example, not enough evidence), but that wouldn't make it legal. But I have to agree with you in that while it cannot happen that one is legal while the other one is not, it might happen that one will be prosecuted and the other not. – vsz Jul 23 '16 at 15:06
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    @vsz - This would make a good separate question. – feetwet Jul 23 '16 at 15:10
0

You are asking what you could legally do if a police officer is just about to murder a person. That situation is so out of order that what is legal doesn't really matter. It's not a situation where the law will protect you.

Instructing that officer to drop his weapon would obviously be a very, very bad idea. Guess what an officer who is going to shoot an unarmed person is going to do to someone who has a gun and is shouting at him. And guess what happens to you if you shoot a police officer if you get caught, no matter whether this was legally self defence or not.

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    "You are asking what you could legally do if a police officer is just about to murder a person." Yes, that is what I'm asking. It's not common, I don't expect to find myself in such a situation, but it has happened more than zero times and I would like to know what the law says about it. I am aware that shooting cops, right or wrong, legal or not, is a Bad Idea. FWIW, I am not the downvoter. – thunderblaster Jul 22 '16 at 16:09
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    @thunderblaster You wouldn't have all the information necessary to make the conclusion that a murder is about to happen. You don't know that the police officer is going to pull the trigger. You don't know that the person is unarmed. etc. Even assuming that in this hypothetical, you are correct that the officer is going to shoot the other person, whether that act is a murder would be determined much later. – user3851 Jul 22 '16 at 16:14
  • @Dawn You're correct, it's not murder at that time, I accepted gnasher729's usage of it idiomatically and not the legal definition. To use lethal force against a non-police officer, I don't need to know that the individual will pull the trigger. I want to know how that differs. I'll update the question to clarify. – thunderblaster Jul 22 '16 at 16:24
  • @thunderblaster Makes sense. I get what you mean now. – user3851 Jul 22 '16 at 16:26
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    This doesn't answer the question at all. This is a question about whether something is legal, on Law Stack Exchange. Whether or not that "something" it's a good idea is kinda irrelevant to the question. – Ajedi32 Jul 22 '16 at 17:14

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