8

IANAL. I am puzzled by today's headline in the media. As I understand it, civilians are sometime able to invoke self-defense if they have a reasonable belief of immediate life-threatening harm. However, if the suspect is retreating and not threatening anyone else, a shot in the back is not justified. There is justification "box" (context) that a citizen must be within order to invoke the self-defense justification.

Assuming my understanding is correct (if it is not please correct the above).

  • is law enforcement's box "bigger"?
  • In what context is shooting a suspect in the back justified?
  • Is governing law at the state or Federal?

Another example for consideration if needed:

2
  • "The video represents a different vantage point and was not what the pursuing officers could see. The 16-year-old was also known to carry firearms and had jumped a fence into a child daycare center," Hall said in his statement."
    – Richard
    Aug 25 '20 at 7:07
  • "Then-Fresno Police Chief Jerry Dyer said the officer feared that “he was about to be shot” after Murrietta-Golding “reached into his waistband several times,” the Fresno Bee reported, including when he glanced back at the officers."
    – Richard
    Aug 25 '20 at 7:09
14

This is controlled by state law (there is also a federal murder statutes but the federal government doesn't dictate defenses for state law). Here is Washington's. RCW 9A.16.020 says when use of force is lawful, and there are different "public officer" vs. "person" related provisions. Generally, public officers may use force

(1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer's direction;

but persons (other than those assisting an officer) may only use force

(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary;

Additionally, RCW 9A.16.040 is a long section specifically about officers, the most germane parts of which are that use of deadly force is justifiable

(a) When a public officer applies deadly force in obedience to the judgment of a competent court; or (b) When necessarily used by a peace officer meeting the good faith standard of this section 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 meeting the good faith standard of this section 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;

RCW 9A.16.050 has more limited circumstances when homicide is justifiable by others (not in self-defense):

(1) 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; or (2) In the actual resistance of an attempt to commit a felony upon the slayer, in his or her presence, or upon or in a dwelling, or other place of abode, in which he or she is

In other words, the box for police officers is bigger: they can use deadly force to do their job, your plumber cannot.

RCW 9A.16.040 is not a general license to kill: the rest of the section details the conditions under which one can consider such use of force to be lawful. The officer must have "probable cause to believe that the suspect, if not apprehended, poses a threat of serious physical harm to the officer or a threat of serious physical harm to others". If that is so, "deadly force may also be used if necessary to prevent escape from the officer". Also, as usual, the fact-finders do not make that judgment post hoc, the officer at the scene does and he "shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable pursuant to this section".

In enacting this law (in case the courts wondered, years later, the legislature declared

The legislature recognizes that RCW 9A.16.040 establishes a dual standard with respect to the use of deadly force by peace officers and private citizens, and further recognizes that private citizens' permissible use of deadly force under the authority of RCW 9.01.200 [since recodified], 9A.16.020, or 9A.16.050 is not restricted and remains broader than the limitations imposed on peace officers

There do not appear to be statutory defenses for federal murder statutes, instead this results from common law interpretation, implemented in federal rules of criminal procedure (discussed here w.r.t. defenses) and jury instructions in the various circuits.

10

is law enforcement's box "bigger"?

Yes. There are reasons for which law enforcement can use force that civilians cannot, although the details vary in fine detail from state to state.

In what context is shooting a suspect in the [back while fleeing] justified?

Roughly speaking, to stop the flight of a person known to be a dangerous felon if an arrest by less deadly means is not possible and the officer has probable cause to believe that the person fleeing is a dangerous felon.

One of the important distinctions between the powers of a law enforcement officer to make an arrest and a citizen, in most jurisdictions, is that the citizen can usually make a citizen's arrest only for a crime committed in the presence of the citizen, while a law enforcement officer need not have seen the crime actually being committed.

Is governing law at the state or Federal?

The governing law is primarily at the state level, but there is a federal limitation upon what can be authorized by state law under the 4th Amendment to the U.S. Constitution. The leading U.S. Supreme Court case setting federal constitutional bounds upon what state law may allow is Tennessee v. Garner, 471 U.S. 1 (1985).

This case held that under the Fourth Amendment of the U.S. Constitution, a police officer may use deadly force to prevent the escape of a fleeing suspect only if the officer has a good-faith belief that the suspect poses a significant threat of death or serious physical injury to the officer or others.

RCW 9A.16.040(1) cited by @user6726 in his answer tracks this language.

There are also specific exceptions applicable to prison guards, to soldiers acting in a military capacity, to bounty hunters, to deputized civilians in a posse, etc.

The facts in the first link are primarily:

The video appears to show three officers with their weapons drawn following a Black man as he walks from the back of a vehicle to the driver's side. As the man enters the driver's side of the car, one officer, who is hanging onto the man's shirt, opens fire. Shouting and several gunshots can be heard in the video.

It is hard to see that this could be a justifiable use of force when the man is unarmed. Sometimes police argue fear of imminent use of a motor vehicle as a weapon. It isn't clear what felony they would think he had committed (he was walking away from breaking up a fight between two women). It is also hard to see why deadly force rather than lesser force would have been reasonable at this moment.

The second link is more factually similar to Tennessee v. Garner, which is not to say that it was justified on the merits.

Another emerging question is whether it is justifiable for multiple officers to shoot after a first one does, which is common practice and often something officers are trained to do, but of questionable legality and much more likely to result in death for the person shot.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.