Professional Documents
Culture Documents
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11.
I.
BACKGROUND
In general; the right of arresting officer to use reasonable force Standard of reasonable force; determination of whether standard was met Burden and degree of proof; presumption of good faith Arresting officers right of self-defense Use of deadly force in arresting misdemeanant Firing warning shots at fleeing misdemeanant Right to kill resisting misdemeanant Use of deadly force in arresting felon Type of felony Knowledge of arresting officer as to whether felony was committed Elements of damages: guide and checklist
II.
PROOF THAT POLICE OFFICER, IN MAKING AN ARREST FOR A MISDEMEANOR AND LATER A FELONY, USED EXCESSIVE FORCE a. elements of Proof
B. Testimony of arrestee
13. Commission of misdemeanor 14. Use of deadly force against misdemeanant resisting arrest but not endangering officers life
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15. 16. 17. 18. 19.
Use of force against nonresisting misdemeanant Rebuttal of possible claim of self-defense by arresting officer Commission of felony Rebuttal of possible claim that arrestees injuries were received in car crash Availability of means, other than deadly force, to arrest felon
C. Testimony of eyewitnesses
20. Confirmation of fact that arrestee sustained injuries before car crash 21. Confirmation of fact that officers use of deadly force in self-defense was not justified 22. Confirmation of fact that arrestee received no additional injuries in car crash
Legal Periodicals:
Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131 Griffen, The Appropriateness of Deadly Force, 15 How L J 307 McDonald, Use of Force by Police to Effect Lawful Arrest, 33 Neb L Rev 408 Moreland, The Use of Force in Effecting or Resisting Arrest, 9 Crim L Q 435 Note, The Application of Deadly Force to Effectuate an Arrest, 5 Washburn L J 262 Note, TortsUse of Force in Effecting an Arrest, 17 Loyola L Rev 470 Note, The Use of Deadly Force by a Peace Officer in the Apprehension of a Person in Flight, 21 U Pitt L Rev 132 Note, The Use of Deadly Force in the Apprehension of Fugitives from Arrest, 14 McGill L J 293 Pearson, The Right to Kill in Making Arrest, 28 Mich L Rev 957 Rummel, The Right of Law Enforcement Officers to Use Deadly Force to Effect an Arrest, 14 NY L F 749 Uelmen, Varieties of Police Policy: A Study of Police Policy Regarding the Use of Deadly Force in Los Angeles County, 6 Loyola U L Rev (LA) 6
Pleading Forms:
Allegations in Civil Rights Act complaint of abusive treatment by police in making of arrest, 5 Am Jur Pl & Pr Forms (rev ed), Civil Rights Form 2
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Answer in assault and battery case that force used was reasonably necessary to make arrest, 2 Am Jur Pl & Pr Forms (rev ed), Assault and Battery Forms 283-285 Complaint against police officer for wounding felony suspect during arrest, 22 Am Jur Pl & Pr Forms (rev ed), Sheriffs, Police, and Constables Form 133 Complaint alleging unjustified assault and battery by police officer while arresting prisoner for intoxication, 22 Am Jur Pl & Pr Forms (rev ed), Sheriffs, Police, and Constables Form 132 Jury Instructions on use of force reasonably necessary to make an arrest, 2 Am Jur Pl & Pr Forms (rev ed), Assault and Battery Forms 287, 288
Trial Techniques:
Police Misconduct LitigationPlaintiffs Remedies, 15 Am Jur Trials 559
Annotations:
Municipal liability for personal injuries resulting from police officers use of excessive force in performance of duty. 88 ALR2d 1330. Personal liability of peace officer, sheriff or other peace officer, or bond for negligently causing personal injury or death. 60 ALR2d 873. Criminal responsibility of officers for killing or wounding one whom they wished to investigate or identify. 61 ALR 321, supplementing 18 ALR 1368. Degree of force that may be employed in arresting one charged with a misdemeanor. 42 ALR 1200, supplementing 3 ALR 1170. Police action in connection with arrest as violation of Civil Rights Act, 42 USC 1983. 1 ALR Fed 519.
INDEX
Absence of resistance, use of force in case of, 1 Arresting officer belief that life was endangered, reasonableness of, 16 liability as compared with other defendants, 2 as depending on use of clearly excessive force, 3 degree of for excessive force, see Excessive force requisites of under 42 USCS 1983, 1 where adjudicated, 1 misdemeanant, as liable for using deadly force against, 5 necessary force, as having right to use, 1 reasonable man standard as governing, 8 resistance against, as having right to overcome, 1 warning shots, as having right to fire, 6 Assault, action against arresting officer for, 14 Burden of proving excessive force, 3
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Checklist damages, 11 elements of proof, 12 Civil rights, use of reasonable force as violating, see Reasonable force Clear and satisfactory preponderance of evidence, duty of suspect to produce, 3 Dangerous felony, necessity for to justify deadly force, 9 Deadly force arresting officers use of as justified, testimony, 21 assault on arresting officer, as usable after, 4 felon, as usable against, 8 felony-in-fact, as depending on existence of, 10 force other than, availability of, testimony, 19 misdemeanant, as usable in self-defense, 4 Model Penal Code, position of, see Model Penal Code public place, use of in, 8 reasonable belief that felony has been committed as necessary for justifying use of, 10 resisting misdemeanant, use of against, 7 Restatement of Torts, position as to use of in self-defense, 4 riot suppression, as usable during, 5 self-defense, use of in, 4 Demonstrative evidence, advisability of use of, 16 use of, advisability, 16 Evidence demonstrative evidence, 16 real evidence, 16 statements concerning speakers state of mind, admissibility of, 14 Excessive force burden of proving, 3 due process, as constituting denial of, 1 federal question, as constituting, see Federal question liability of arresting officer for using, 1 state law, use of in determining, 1 state of mind of arresting officer as determining, 10 use of, generally, 1 Eyewitness importance of having, 19 testimony of, 20-22 Federal question color of state law, as involved in whether arresting officer acted under, 1 excessive force as constituting, 1 Felon, use of deadly force against, 8 Felony commission of, testimony, 17
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type of as determining right to use deadly force, 9 Felony-in-fact deadly force, as necessary for justifying use of, see Deadly force rule requiring, rationale of, 10 victim of deadly force, as required to have been committed by, 10 Injuries, possibility of having been received from source other than arresting officer, testimony, 18, 22 Justifiable homicide statutes as governing use of deadly force against felons, 9 Misdemeanant, use of deadly force against, 5, 14 Misdemeanor commission of, testimony, 13 evidence of as introduced by arrestee, 14 Model Penal Code deadly force, as dealing with use of against felon, 9 reasonable belief rule that felony has been committed, as dealing with, 10 Preponderance of evidence, suspects duty to overcome, 3 Presumption of good faith, suspect having duty to overcome, 3 Public place, use of deadly force in against felon, 8 Real evidence, necessity of establishing chain of possession, 16 Reasonable belief rule deadly force, as causing indiscriminate use of, 10 Model Penal Code, position concerning, see Model Penal Code Restatement of Torts, position concerning, 10 Reasonable force appeal from determination of, standards applicable, 2 arresting officer as judge of, 2 liability of to suspect when using, 1 civil rights, as violating, 1 directed verdict, as applicable when determining what constitutes, 2 jury, as question for, 2 misdemeanant, as encompassing use of deadly force against, 5 surrounding circumstances, as depending on, 2 test in determining whether used, 2 Resistance absence of, use of force in case of, 1 right of arresting officer to overcome, see Arresting officer Restatement of Torts, position of concerning reasonable belief rule that felony has been committed, 10 Riot suppression, use of deadly force against misdemeanant in suppressing, 5 Self-defense burden of establishing need for, 4 rebuttal of arresting officers claim to, testimony, 16 rule that aggressor may not use, applicability to arresting officer, 4 use of deadly force in, see Deadly force
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Speed, evidence of as requiring expert testimony, 22 Suspect degree of proof required by, 3 guilt or innocence advisability of suspects admitting, 14 as affecting recovery of damages against police officer, 14 presumption of good faith, duty to overcome, 3 testimony of, 13-19 United States Code excessive force as denial of due process under, see Excessive force liability of arresting officer under, see Arresting officer Vehicles, use of warning shots against, see Warning shots Vicious felony rule, position of Restatement of Torts concerning, 9 Warning shots arresting officer, liability of for firing, see Arresting officer definition of, 6 jury question, reasonableness of as constituting, 6 misdemeanant, as usable against, 6 standard of care in firing, 6 vehicle, as usable against, 6
I.
BACKGROUND
2 3 4
In order to focus solely on the question of the excessiveness of the force employed in making an arrest, it is assumed in this article that the arresting officer was entitled to make the arrest. 5 Am Jur 2d, Arrest 80. City of Miami v Albro Fla App , 120 So 2d 23. Carter v State Okla App , 507 P2d 932. 368
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Reminder: It should be noted that even if an arresting officer uses reasonable force in effecting an arrest, he may, nevertheless, be liable for any harm done to the arrestee if the need for the use of such force arises in the first instance from the officers negligence. Thus, one court held that plain clothes officers were liable for shooting a fleeing felon, despite the general rule permitting the use of deadly force in this situation6, since the officers failed to identify themselves before pointing pistols at the suspect and ordering him to freeze. The court explained that the officers were negligent not in the use of force, but in their failure to take steps which would reasonably have prevented the need to use force in the first place7. If the arresting officer exceeds the amount of force he is privileged to use under the circumstances, he is liable for only so much of the force as is excessive.8 His liability may be adjudicated in either a criminal9 or a civil action, such as a civil rights proceeding under 42 USCS 1983.10 In fact, the courts have uniformly held that the excessive use of force by an arresting officer constitutes a denial of due process for which an action for damages lies under this section.11 Case Illustration: In holding that it was error to sustain a police officers motion for a judgment notwithstanding the verdict since the jury could well have determined that the suspect had a cause of action under 42 USCS 1983, the court emphasized evidence showing that the officer, after having ascertained that the suspect did not have his drivers license with him, applied an armlock to the suspect in order to get him into the patrol care and then hit him on the head, shoulders, hands, and wrists with a blackjack or slapper, before
5 6 7 8 9 10 Note, The Application of Deadly Force to Effectuate an Arrest, 5 Washburn L J 262. See 8, infra. Celmer v Quarberg, 56 Wis 2d 581, 203 NW2d 45. City of Miami v Albro Fla App , 120 So 2d 23. 5 Am Jur 2d, 80. 42 USCS 1983 provides that every person who, under color of state or territorial statute, ordinance, regulation, custom, or usage, subjects or causes to be subjected to any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunity secured by the Federal Constitution or laws, is liable to the party injured in an action at law, suit in equity, or other proper proceedings for redress. Thus the statutory prerequisites to the liability of a police officer under 42 USCS 1983 are first, that the police officer act under color of state or local law, and second, that the suspect be subjected to a deprivation of any rights, privileges, or immunities secured by the Federal Constitution or laws. See Annotation: Police action in connection with arrest as violation of Civil Rights Act, 42 USC 1983. 1 ALR Fed 519, at page 523. Annotation: Police action in connection with arrest as violation of Civil Rights Act, 42 USCS 1983. 1 ALR Fed 519, at page 525. 369
11
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ultimately handcuffing him.12
Conversely, the courts have held that a reasonable degree of force may be exercised to effect an arrest without violating the suspects civil rights.13 Case Illustrations: It was held that no claim was stated under 42 USCS 1983, where the suspect merely alleged that the police officers, in the course of arresting him for failing to respond to parking warrants, shoved him down a courthouse hallway and assaulted him on the way down the steps to the jail, aggravating a recent surgical operation. The court pointed out that many, if not most, arrests were bound to involve some touching of the person of the arrested person by the officer and that the suspects allegations were, at best, charges of a trivial batter set forth in concessionary terms which failed to show the requisite degree of harm needed to constitute a constitutional deprivation.14 Where the only showing of an alleged excessive use of force was that the arresting officers, in an effort to subdue two teenage boys who were struggling to free themselves after ignoring the officers command to stop for interrogation, threw one boy to the ground by tripping him, struck the other with a club, and handcuffed both of them, the court held that the suspects had failed to prove by the requisite preponderance of evidence that they were entitled to relief under 42 USCS 1983.15 Observation: Whether, in actions under 42 USCS 1983, the arresting officer acted under color of state law, and whether the conduct complained of, namely, the officers excessive use of force, deprived the suspect of a constitutional right, are federal questions.16 However, in determining what constitutes excessiveness, the courts turn to state law.17
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required.19 In other words, the arresting officer, within reasonable limits, is the judge of the force necessary to enable him to make an arrest or to preserve the peace,20 and, as one court has stated, when the officers conduct comes later to be weighed in the coldness of judicial surroundings, and perhaps in a conference of the judges of an appellant tribunal, the mistake must not be made of evaluating the conduct solely from the viewpoint of the latter environment.21 Case Illustrations: The following two cases provide examples of the use of reasonable force by the arresting officer: The suspect, a 58-year-old man, was stopped by a police officer for making an improper left turn. The suspect refused to sign the ticket, and was grabbed by the officer, at which time he jerked away and stated that he was going to his office across the street. The officer then followed the suspect and shot him with a one- to three-second blast of mace from a distance of about three feet. On the basis of this evidence, the court stated that notwithstanding the apparent effect of mace, the jury might reasonably have concluded form all of the evidence, including the suspects age and apparent belligerence, that the force employed in making the arrest was reasonable. In fact, the court noted, the jury might reasonably have concluded that had mace not been used, a more dangerous force might have been required to bring about the arrest.22 A finding of no negligence by the trial court was sustained where it appeared that the suspect was guilty of the statutory offense of public intoxication in the presence of a deputy sheriff, who was assaulted savagely while attempting to assist the suspect from a grill, and who, after deciding to take the suspect into custody, struck at him to repel his attack and, in so doing, unintentionally broke the suspects glasses and caused an injury which resulted in the loss of the sight of an eye.23 In the following two cases it was held that the arresting officer had failed to act as a reasonable man: Shortly after the suspect, who had apparently been involved in a minor traffic accident, went to bed, two police officers came to the door of his home and told him to get his clothes on and to come to the police station. After repeatedly asking on what grounds, but receiving no explanation, the suspect was handcuffed and pulled out of the door, at which time he resisted and was struck on the head by one of the officers. A struggle then ensued on the front porch, in the course of which the suspect fell therefrom and
19 20 21 22 23 Conklin v Barfield, 334 F Supp 475. Mead v OConnor, 68 NM 170, 344 P2d 478. Thompson v Norfolk & W. Railway Co. 116 W Va 705, 182 SE 880. Jennings v City of Winter Park Fla App , 250 So2d 900. Schell v Collins ND , 83 NW2d 422. 371
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broke his leg. While he was on the ground, one of the officers twisted his arm, and the other choked him and beat him with his nightstick. In holding that this force was clearly excessive, the court emphasized that the suspect could easily have been dealt with the following day rather than being dragged from his home in the middle of the night. The court pointed out that although the suspects insistent questions may have irritated the officers, they did not justify the violence used against him.24 The suspect, a 19-year-old Puerto Rican who was driving without a license, went through a stop sign, hit a car, and proceeded to come to a stop near a telephone pole 450 feet from the point of the collision. According to the suspect, he had no wounds and was not bleeding from the collision, but he did feel dizzy. He then alleged the two policemen took him from his car, beat him with their fists, handcuffed his hands behind his back, and smashed his face against the glass of the back window of his car. Once he was put into the police car, the suspect alleged, one of the officers hit him on the nose with a short club. The police officers alleged that the suspects nose was broken during the collision. On the basis of evidence showing that the suspect had no injuries on his face other than the broken nose, the court concluded that it did not seem probable that his nose was broken as the result of the collision. The court stated that whatever scuffle may have taken place and whatever resistance the suspect may have offered, it was obvious that the officers used force well in excess of what was reasonably required, the court adding that there was no need to use any force once the suspect had been handcuffed and placed in the police car.25 Observation: It has been held that an instruction which stated that the test of an arresting officers conduct was whether he sued more force than was necessary in the performance of his duties as a reasonably prudent police officer did not place undue emphasis upon his position as a police officer. It was stated that such instruction correctly emphasized that there was a difference between a police officer and any other defendant in an assault case since the liability of a police officer, who has a privilege to use force, is founded on legal and policy consideration that are distinguishable from those in an ordinary assault case.26 Whether the force used in making an arrest was reasonable is a question of fact to be determined in light of the circumstances of each particular case,27 and thus is a question for the jury.28 However, if the evidence indicates that the reasonable minds of the jury could not but agree that the arresting officer did or did not act reasonably, the court may direct
24 25 26 27 28
Hood v Brinson, 30 Ill App 2d 498, 175 NE2d 300. Arroya v Walsh (DC Conn) 317 F Supp 869. Wirsing v Krzeminski, 61 Wis 2d 513, 213 NW2d 37. City of Miami v Albro Fla App , 120 So 2d 23. Annotation: Degree of force that may be employed in arresting once charged with a misdemeanor. 3 ALR 1170, page 1172. 372
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a verdict, rather than submitting the issue to the jury.29 On appeal, the usual standard is applied, namely that the finding of the jury will not be upset if there is any credible evidence which under any reasonable view fairly admits of an inference supporting the finding.30
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in view of the suspects resistance to being ejected form the theater. In reaching this conclusion, the court emphasized that the suspect was an interested party and that his version of the events was wholly unsupported by any independent witnesses.33 Note: In some cases, the courts have held that the suspects burden of proof is what is commonly referred to as the middle burden of proof, that is, midway between the preponderance of evidence required in ordinary civil actions and the proof beyond a reasonable doubt required in criminal actions. These courts have stated that the suspect must prove excessive force by clear and satisfactory preponderance of the evidence.34 Another authority has observed that since an arresting officer, who is acting for the protection of the public interest, is permitted an even greater latitude of discretion than a person acting in self-defense,35 he is not liable for adages unless the means he uses are clearly excessive.36
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Where there was conflict in the testimony concerning whether the arrestee was beaten by the arresting officers or whether he received his injuries when he pulled away from the officers and lunged into a tree, but where all parties agreed that the arrestees injuries occurred after he had obeyed the officers command to put down a shotgun he was holding and then had been handcuffed, the court held that it was reversible error for the trial court to have instructed on the officers right of self-defense. The court pointed out that for self-defense to apply, the force used by the officers must have been reasonable and have been applied at a time when the officers were in apprehension of severe bodily harm, a condition which could have been fulfilled in this case only when the arrestee still possessed or had access to the shotgun. Since the record indicated that the arrestees injuries occurred after the officers had handcuffed his hands behind his back, the court concluded that there was no evidence on which the affirmative defense of self-defense could be predicated and that it was, therefore, error to give an instruction on that issue.40 The right of an arresting officer to use deadly force in self-defense applies regardless of whether the arrestee is suspected of having committed a felony or a misdemeanor.41 The use of deadly force cannot be justified, however, where the arrestee merely resists or failed to peaceably submit to the arrest; it is only when he assaults the arresting officer that the right of self-defense accrues to the officer.42 An arresting officer is not subject to the rule that the right of self-defense may not be invoked by the aggressor, since it is his duty to be the aggressor and to overcome all resistance, nor is he required to retreat before shooting or striking a fatal blow in his own defense.43 Note: The special nature of an arresting officers right of self-defense is recognized in the Restatement (Second) of Torts. It is pointed out therein that an arresting officer may use deadly force in self-defense even though the suspects threat to use deadly force against the officer is conditioned upon the officers persistence in his efforts, so that the officer is aware that he can avoid the necessity of using deadly force.44
39 40 41
Conklin v Barfield (DC Mo) 334 F Supp 475. Melichar v Northern Colo App , 534 P2d 832. Rummel, The Right of Law Enforcement Officers to Use Deadly Force to Effect an Arrest, 14 NY L F 749; Note, The Use of Deadly Force by a Peace Officer in the Apprehension of a Person in Flight, 21 U Pitt L Rev 132. As to the use of deadly force in arresting a misdemeanant and a felon, see 5 et seq., infra, and 8 et seq., infra, respectively. Meldrum v State, 23 Wyo 12, 146 P 596. 5 Am Jur 2d, Arrest 80. Restatement (Second) of Torts 131, comment d (1963). 375
42 43 44
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49
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the bullet was discharged with the officers arm was struck by the decedents friend.52 Observation: The general rule that an arresting officer can use whatever force is reasonably necessary in effecting an arrest53 would appear to justify the use of deadly force against a misdemeanant if no other force were available to prevent his escape. However, perhaps on the assumption that the use of deadly force against a misdemeanant is never reasonable unless self-defense is involved, the courts have restricted the broad implications of the general rule, at least with respect to the use of deadly force against misdemeanants. Similarly, it has been pointed out that even in jurisdictions which possess statutes providing that an officer may sue all necessary means to effect the arrest of a suspect who either flees or forcibly resists, the courts have followed the rule that deadly force cannot be applied against a fleeing misdemeanant, even though the language of such statutes would indicate otherwise.54 However, one instance where deadly force appears to be available for use against a misdemeanant is riot suppression. Many justifiable homicide statutes have been held to permit officers to use deadly force in this situation, even though a riot is generally a statutory misdemeanor.55
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question for the jury.62 Case Illustration:
The arresting officer was pursuing a suspected parole violator who, during the course of the pursuit, ran into an alley approximately four feet wide and 36 feet long. The pursuing officer, when he reached the alley, shouted halt, and upon receiving no answer, fired one shot down the left side of the alley at a patch of light on the ground some 20 or 30 feet away, and struck the suspect and killed him. The officer testified that he intended the shot to be a warning shot but was afraid to fire into the air because it was dark and he freaked that the bullet might have entered a house. In a wrongful death action brought by the decedents administrator, the administrator contended that as a matter of law the arresting officer had no right to use firearms in attempting to arrest the decedent, who was suspected only of having committed a misdemeanor. In rejecting this contention and holding that the trial court had properly rejected the administrators motion for a directed verdict, the court stated that although it was not permissible to use deadly force against a fleeing misdemeanant, a police officer could discharge a firearm to frighten the misdemeanant into stopping, the officer being accountable, however, for such negligence as resulted in injury to the fugitive. In the present case, the court noted, there was a possibility that the jury could find that the officers conduct was not negligent and, therefore, the administrator was not entitled to a directed verdict.63 An arresting officer is also entitled to fire warning shots at a vehicle in which a misdemeanant is riding so long as the shots are not fired at the vehicle generally but are confined to the wheels.64 Case Illustration: Officers pursuing the suspect, who was driving recklessly, radioed ahead to have a roadblock established. As the suspect approached the roadblock at a high rate of speed, he was signaled to stop, but failed to do so, and as he went by, one of the officers fired a warning host across the path of the automobile and then shot at the automobiles tires. Another officer shot at the right front tire of the automobile. The three bullets struck the right side of the suspects automobile, but the suspect was not hit. In sustaining a judgment in favor of the officers, the court stated that an instruction to the jurors that they were to decide whether it was reasonable under all the facts and circumstances for the officers to have shot at the tires of the suspects automobile was not erroneous. In rejecting the suspects contention that, since an officer has no right to shoot at an automobile in order to arrest a misdemeanant, the instruction was erroneous, the court
62 63 64 Hutchinson v Lott, Fla , 110 So 2d 442; Wimberly v Paterson, 75 NJ Super 584, 183 A2d 691. Wimberly v Paterson, 75 NJ Super 584, 183 A2d 691. Hutchinson v Lott, Fla , 110 So 2d 442; State v Pope, 212 Miss 446, 54 So 2d 658; Breese v Newman, 179 Neb 879, 140 NW2d 805. 378
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stated that the better rule was that it was a question for the jury whether, under all the facts and circumstances, an officer who fired at the tires of an automobile operated by a misdemeanant used more force than reasonably necessary to stop the automobile and arrest the misdemeanant. The court distinguished between the situation in which the arresting officer fired specifically at the suspect or at his vehicle generally, in which case he would be liable, from the situation which existed in the present case, where the officer fired specifically at the tires of the vehicles in order to bring it to a stop.65 Observation: There is language in one opinion suggesting that if the arresting officer fires at the wheels of a vehicle and accidentally hits one of the occupants, he will automatically be held liable for negligence. In that case, the court stated that the injury to the occupant of the vehicle must have been the result of negligence or carelessness, since specific injury was not intended.66 Despite the fact that the courts have held that police officers are not preclude, as a matter of law, from firing warning shots at fleeing misdemeanants, they have emphasized that the law imposes a duty to employ extraordinary care in the angling and use of firearms in such a situation.67 In fact, one court stated that an officer who resorts to the use of warning shots is held to a duty of prevision not far from that of an insurer.68
7.
As has previously been stated, an arresting officer, regardless of the nature of the offense involved, may kill a resisting suspect if the officers life is in danger.69 A question arises, however, concerning the officers right to use deadly force against a resisting misdemeanant, where such force is necessary to effect the arrest but where the resistance offered does not endanger the officers life or threaten him with serious bodily harm. Observation: It would appear that this issue would not only arise where the suspect was a misdemeanant since it is clear that an officer may use deadly force to arrest a felon even when not acting in selfdefense.70 The courts have split on the right of an arresting officer to use deadly force against a resisting misdemeanant. Some courts have stated that as a general rule, an officer may use all necessary force in arresting a resisting misdemeanant, up to and including killing him.71
65 66 67 68 69 70 71 Breese v Newman, 179 Neb 879, 140 NW2d 805. Stevens v Adams, 181 Ark 816, 27 SW2d 999. Breese v Newman, 179 Neb 878, 140 NW2d 805; Wimberly v Paterson, 75 NJ Super 584, 183 A2d 691. Wimberly v Paterson, 75 NJ Super 584, 183 A2d 691. 4, supra. Note, The Application of Deadly Force to Effectuate an Arrest, 5 Washburn L J 262. As to the use of deadly force against a felon generally, see 8, infra. Annotation: Degree of force that may be employed in arresting one charged with a 379
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Thus, one court, apparently on the theory that an arresting officer has the right to be an aggressor,72 refused to view the arresting officers killing of a suspected misdemeanant in traditional self-defense terms, but instead held that the officer was entitled to an instruction that he had a right, in endeavoring to make the arrest, to use all the force that was necessary to overcome all resistance, even to the taking of life, and that if he used no more force than was reasonably necessary to accomplish the arrest, he should be acquitted.73 Other courts, apparently in the majority,74 have taken the position that an officer is justified in using deadly force against a resisting misdemeanant only when the resistance endangers the life of the officer or threatens to inflict great bodily harm upon him.75 It has been suggested that this rule is a sounder one for the reason that if an officer is not justified in taking the life of a fleeing misdemeanant, then he should likewise not be permitted to take the life of a resisting misdemeanant unless his own life is in danger.76
72 73 74
75 76 77 78 79 80 81 82
misdemeanor. 3 ALR 1170, at page 1175. As to an arresting officers right to use self-defense without first retreating, see 4, supra. State v Dierberger, Mo , 10 SW 168. See Note, The Civil Liability of Peace Officers for Wounding or Killing, 28 U Cin L Rev 488, and Note, The Application of Deadly Force to Effectuate an Arrest, 5 Washburn L J 262, where both commentators state that the basic rule is that an arresting officer may only kill a resisting misdemeanant in self-defense. See, for example, Hutchinson v Lott, Fla , 110 So 2d 442. Note, The Application of Deadly Force to Effectuate an Arrest, 5 Washburn L J 262. As to whether the arrestee must be a felon in fact or only a suspected felon, see 10, infra. As to the use of deadly force against a misdemeanant, see 5 et seq., supra. See 1, supra. 5 Am Jur 2d, Arrest 84. See 5, supra. Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131. As to whether the felony involved must be one threatening human life, see 9, infra. 380
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Having been informed that the suspect was bringing in a load of whiskey, the arresting officers posted themselves on the highway and parked their car across it as an obstruction. As the suspect approached the roadblock, he ignored the officers command to halt and attempted to run over them. As the suspect was attempting to pass the obstruction, both of the officers fired shots at his car, one of which hit and killed the suspect. On the basis of this evidence, the court held that although the officers may have used to maximum force permitted they were not personally liable for shooting and killing the suspect.83 Observation: Even if the officers use of deadly force is justified, if the shooting was done in a public place where the officer understood or should have known that people were in the habit of congregating or were likely to pass, the act might constitute such negligence as to render the officer civilly liable for injury inflicted on an innocent person.84 In determining whether the use of deadly force in arresting a felon was necessary, the standard employed is not actual necessity, but rather reasonable necessity.85 Thus, in construing statutes which state that homicide is justified in various situations when necessarily committed, the courts have held that the quoted words refer to the amount of force an ordinarily prudent and intelligent person, with the knowledge and in the situation of the arresting officer, would have deemed necessary.86 These decisions of course are in accord with the general rule that an arresting officers conduct is to be measured by an objective reasonable man standard.87 It follows, therefore, that an arresting officer may be criminally responsible or civilly liable if he uses more force than is reasonably necessary to effect the arrest.88
9. Type of felony
Whether an arresting officers use of deadly force in apprehending a felon will be held to be excessive may depend on the nature of the felony involved, that is, whether the felony endangers human life or whether it merely threatens a property interest.89 However, the most widely accepted rule, and the one adopted by the Restatement (Second) of Torts90
83 84 85 86 87 88 89 90 Love v Bass, 145 Tenn 522, 238 SW 94. Askay v Malloney, 85 Or 333, 166 P 29. Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131. Note, Justifiable Use of Deadly Force by the Police: A Statutory Survey, 12 W&M L Rev 67. See 2, supra. 5 Am Jur 2d, Arrest 84. Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131. Restatement (Second) of Torts 131 (1963). Note: The first Restatement of Torts 131 adopted what was known as the vicious felony rule by providing for the use of deadly force in making an arrest only for a felony which 9 POF 2d 381
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appears to be that deadly force can be used in arresting a felon regardless of the nature of the felony.91 Observation: At the time this rule was developed, all felonies were punishable by death. It thus followed that since a felon was likely to be executed if brought to trial it should be permissible to kill him to prevent his escape. In modern times, however, statutes have created many felonies which are punishable by death and which do not threaten life, and the courts and legislatures have begun to question the wisdom of allowing officers to use deadly force regardless of the nature of the felony.92 Thus, a number of states have enacted justifiable homicide statutes which depart form the common law by requiring that the felony in question be of a dangerous nature.93 For example, a New York statute, in addition to allowing the use of deadly force against a felon for self-defense or where the felon was armed with a firearm or deadly weapon, permits such force only where the felony involved the use, or attempted use, of physical forced against a person or where the felony was kidnapping, arson, escape in the first degree, burglary in the first degree or any attempt to commit such offenses.94 Similarly, the Model Penal Code has adopted the view that the use of deadly force in arresting a felon may only be justified for certain types of felonies. Thus, as one of the requirements for the use of deadly force against a felon, the Code provides that the officer must believe either that the crime for which the arrest is made involved the use, or threatened use, of deadly force or that there is a substantial risk that the person to be arrested will cause death or serious bodily hair if his apprehension is delayed.95
normally caused or threatened death or serious bodily harm. However, in both the 1948 revision and the Restatement (Second) of Torts 131, the vicious felony rule is replaced with a rule providing that any felon, if the other necessary elements are present, may be killed. Thus, it appears that the reason for dropping the vicious felony rule was that it was thought to be too difficult for police officers to make an on-the-spot determination as to whether or not a felony was a dangerous one. (Second) of Torts do not specifically refer to the vicious felony rule or mention the reason for its exclusion, it is stated therein (comment g) that it is important that arresting officers know with reasonable certainty the degree of force they are permitted to use and that to this end, it is important that the extent of force that may be used be determined by the general character of the offense, which is capable of being known with reasonable certainty. Martyn v Donlin, Conn , 198 A2d 700. Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131, Note, Justifiable Use of Deadly Force by the Police: A Statutory Survey, 12 W&M L Rev 67. Note, Justifiable Use of Deadly Force by the Police: A Statutory Survey, 12 W&M L Rev 67. New York Penal Law 35.50. Model Penal Code 3.07(2)(b)(iv). Comment, The Use of Deadly Force in the Protection of Property Under the Model Penal Code, 59 Colo L Rev 1212. 9 POF 2d 382
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In addition to specific statutes prohibiting the use of deadly force against felons unless the felony involved is a dangerous felony, one court has utilized a related statute to reach the conclusion that deadly force can be used only where the felony involved threatens life. The related statute provided that homicide is justifiable, among other times, when committed for the purpose of preventing a violent or forceable felony involving danger to life or great bodily harm. The court reasoned that since it is not permissible to use deadly force to prevent the commission of a felony not involving danger to life or great bodily harm it follows that it is not permissible for a policeman to use deadly force to effect an arrest or prevent an escape of one who has committed such a felony.96
98
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A corollary of the rule requiring that a felony in fact be committed is that not only must a felony have been committed, but that it must have been committed by the person against whom the deadly force is used.99 Case Illustration: Acting on a confession in which the suspect admitted that he had committed a felony and stated that he was to meet with his two accomplices at a certain location on the following day, police officers, in two cars bearing no official insignia, staked out the location. When a car containing two men arrived at the location, the officers blocked the highway, at which time the driver of the approaching car tried to escape, apparently on the mistaken belief that he was about to be robbed. In the ensuing chase, one of the officers shot and killed one of the occupants of the car, who was in no way concerned with the felony involved, At his trial on criminal charges, the officer who had done the shooting contended that the killing was justified since a felony in fact had been committed. In rejecting this argument, the court stated that the felony in question must have been committed by the person whom the officer was seeking to arrest. Otherwise, the court pointed, out, if a felony had been committed in the community, an officer could shoot and kill an entirely innocent person whom he might suspect of being a felon, as in the present case.100 The rationale for the rule allowing a police officer to use deadly force against a felon only when the suspected felon has, in fact, committed a felony is that if this requirement were dropped, police officers could justify their indiscriminate use of deadly forced by arguing after the fact that they reasonably believed that the suspect was a felon.101 Despite this rationale, some courts have taken the position that a police officer is justified in using deadly force against a felon if he has a reasonable belief that a felony has been committed.102 This position is premised on the belief that police officers, who must make split-second decision, should not be second-guessed if they act reasonably.103 Also, such position is consistent with the rule allowing an officer to make an arrest without a warrant if he has reasonable grounds for believing, as distinguished from having actual knowledge, that a felony has been committed.104 Observation: The argument that the reasonable belief rule would result in the indiscriminate use of deadly force by police officers appears unjustified. The arresting
99 100 101 102 103 104 5 Am Jur 2d, Arrest 84. Commonwealth v Duerr, 158 Pa Super 536, 45 A2d 235. Comment, Use of Deadly Force in the Arrest Process, 31 La L Rev 131. Murphy v Murray, 74 Cal App 726, 241 P 938; Martyn v Donlin, Conn , 198 A2d 700; State v Autheman, 47 Idaho 328, 274 P 805. Note, Justifiable Use of Deadly Force by the Police: A Statutory Survey, 12 W&M L Rev 67; Note, The Use of Deadly Force by a Police Officer in the Apprehension of a Person in Flight, 21 U Pitt L Rev 132. Martyn v Donlin Conn , 198 A2d 700. 384
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officers conduct is controlled by the requirement that he act reasonably which, in this context, means that there must be such a state of facts as would lead a man of ordinary care and prudence to believe or entertain an honest and strong suspicion that the suspect is guilty.105 In addition, the reasonable man standard is a workable one that has been applied in numerous situations over a long period of years. The Restatement (Second) of Torts has adopted the rule that an officer may use deadly force in arresting a felon if he reasonably believes that the suspect has committed a felony.106 In addition, the Model Penal Code appears to adopt this rule since it contains a provision removing the right to use deadly force win arresting a felon when, due to ignorance or mistake of law, the arresting officers believe in the unlawfulness of the arrestees conduct is erroneous107 or when the officer, in believing that the use of deadly force is justified, is reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of deadly force.108 Observation: The implication of these provisions is that the officer may use deadly force if his belief in the need for such force is reasonable.
105 106
107 108
State v Autheman, 47 Idaho 328, 274 P 808. Restatement (Second) of Torts 131(b) (1963), incorporates as one of the requirements justifying the use of deadly force in arresting a felon that the arresting officer reasonably believes that the offense was committed by the person against whom the force is employed, if the arrest is made without a warrant. Model Penal Code 309(1). Model Penal Code 309(2). 385
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II.
PROOF THAT A POLICE OFFICER, IN MAKING AN ARREST FOR A MISDEMEANOR AND LATER A FELONY, USED EXCESSIVE FORCE A. Elements of Proof
B. Testimony of Arrestee
13. Commission of misdemeanor
[after introduction and identification of witness]
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[request Court to take judicial notice that the offense is a misdemeanor under state law. see 29 am Jur 2d, evidence 27.]
14. Use of deadly force against misdemeanant resisting arrest but not endangering officers life
Q. How did you happen to have contact with [defendant]? A. Well, I was lying down firing at the bottles when I heard a voice behind me say to put the gun down and to get over there. Q. What did you do? A. I looked over my shoulder and saw [defendant] standing near the sidewalk, so I got up and went over to him. Q. Did you take your rifle with you? A. No, I left it on the ground. Q. What did [defendant] do when you got over to him? A. He grabbed my arm and dragged me over to his squad car and threw me against it. Then he told me I was under arrest and to get into the car. Q. What did you do then? A. I refused to get in. Q. Why? A. I told him I hadnt done anything wrong and that I wasnt going with him. Q. Did you know that firing a rifle in the city was against the law? A. No. Practice Observation: Evidence concerning the crimes the arrestee allegedly committed would normally be introduced by the arresting officer in order to justify his actions. In some instances, however, counsel for the arrestee may find it advantageous to present evidence on this matter, such as to establish that the crime was a misdemeanor (see 5, supra) or, if a felony, that it was one that did not involve a danger to life (see 9, supra). The arrestee may,
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of course, recover damages for the arresting officers excessive use of force regardless of his guilt or innocence of the crime involved, although the advisability of admitting guilt may depend upon the status of any criminal charges against the arrestee. In any event, if guilt is admitted, counsel for the arrestee should introduce any mitigating factors surrounding the commission of the crime since such factors may be relevant in explaining the arrestees reaction to being arrested and any action he subsequently took. Q. What did [defendant] do when you refused to get into his car? A. He grabbed me by the arm and neck and tried to force me into the car. Q. What did you do? A. I pushed his hands away. Q. What did he do then? A. He grabbed me again, only harder this time. Q. Did you continue to resist? A. Well, I kept trying to push his hands away from me so he couldnt get me into the car. Q. How long did this struggle go on? A. Oh, about 10 to 15 seconds, I guess. Q. Did either of you fall to the ground during this time? A. No. Q. Did you hit [defendant] during the struggle? A. No, I was only trying to keep from getting put into his car. Q. Did you have any weapon of any type in your possession during the struggle? A. No. I had left my rifle on the ground when [defendant] first yelled at me. Q. How far away was the rifle while you and [defendant] were struggling? A. About 20 yards. Q. What are your height and weight? A. Five feet, eleven inches and about 170 pounds. Q. How would you say that that compared with [defendant]s height and weight? A. We seemed to be about the same size. He might be a few pounds heavier. Q. What happened after you and [defendant] struggled? A. Well, I remember that after struggling for a while [defendant] backed off a few feet, and I noticed him going for his gun. Q. What did you do when you noticed [defendant] reaching for his gun? A. We were standing next to his car, so I began to edge around the car. Q. Then what happened? A. I saw him point his gun toward me and I ducked down behind the front of his car. Just as I was doing this, I heard his gun go off.
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Practice Reminder: An action for assault can be brought against the arresting officer even though he never actually touched the arrestee. See Hutchinson v Lott, Fla , 110 S2d 442. Q. Did you hear the bullet strike anything? A. Yes, I heard it hit the right front bumper near where I was. Q. Did [defendant] say anything to you before he fired? A. As he was pulling his gun out, he said he was going to take me one way or the other. Practice Reminder: Statements introduced as circumstantial evidence of the speakers state of mind, rather than as evidence of the facts asserted therein, are not hearsay and may be received as evidence. 29 Am Jur 2d, Evidence 650.
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Q. Were you able to get up and keep running? A. No, before I had gotten completely up I felt something hit me on the back of the head which stunned me and I fell back down on my stomach. Q. Were you hit any more? A. I was then kicked four or five times in the side and once on the side of the head. Q. What were you doing while this was going on? A. I was just lying there. I was still groggy from the first blow on the head. Q. How long were you lying there? A. Im not sure, but it seemed like a long time. Q. Were you hit any more? A. Yes, after awhile I rolled over and sat up. Then I saw [defendant] putting away his gun. He then took his nightstick and hit me in the face with it. Q. What exactly were you doing when you were hit with the nightstick? A. I was sitting on the ground holding my side where I had been kicked. Case Illustration: Excessive use of force against a non resisting misdemeanant. A recovery of damages for personal injuries was sustained upon evidence that the suspect, after assaulting a state policeman, had withdrawn and had started to walk away when the policeman, either to satisfy his blind rage or to arrest the suspect for a misdemeanor, shot him after pointing his weapon directly at his body. The court stated that the shooting, for either reason, was not justified. Padilla v Chavez, 62 NM 170, 306 P2d 1094. Q. Did [defendant] say anything at the time he struck you with his nightstick? A. Yeah, he said that this is the only thing you [racial slur]s understand.
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Q. I show you plaintiffs Exhibit [exhibit] for identification and ask if you recognize it. A. Yes. Thats my rifle. Q. The one you were firing on the day in question? A. Yes. Q. How do you recognize it? A. It has my initials carved on the stock, right there. [Witness points to the initials]. [rifle may be introduced as evidence.] Practice Observation: If required by the court, each person who had possession of the rifle from the time it left the arrestees possession until introduced in evidence may be called to establish the chain of possession. See 29 Am Jur 2d, Evidence 774. However, if the article can be identified sufficiently to satisfy the court, it is not always necessary to place each custodian on the witness stand. See Witt Ice & Gas Co. v Bedway, 72 Ariz 152, 231 P2d 952. Q. What exactly were you doing when you were hit in the right arm? A. Well, I was running and had turned slightly to look back when I was hit. Q. Which way did you turn to look back? A. Over my right shoulder. Q. How were you holding your rifle at that time? A. It was in my right hand and I was holding it on the upper part of the stock just below the trigger guard. Practice Reminder: At this point, and whenever else necessary, counsel should consider having the witness demonstrate exactly what he did. See 29 Am Jur 2d, Evidence 769. Also, counsel may wish at appropriate times to introduce diagrams showing the location of the participants. Id., 802. Q. Do you remember the direction the barrel of the rifle was pointing when you were hit? A. No. Q. Did you fire the rifle at this time? A. No. Q. Did you knowingly point the rifle at [defendant] at this time? A. No.
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Q. Did you have any intention of firing the rifle at [defendant]? A. No, I just wanted to get out of there. Case Illustration: Reasonableness of officers belief that his life was endangered. As the arresting officer was pursuing a boy who was suspected of having fired a rifle in the city, it appeared, according to the officers testimony, that the boy turned around so that the officer felt threatened by the gun which the boy was carrying. The officer responded by firing at and wounding the boy, and, as a defense, claimed that he acted in self-defense. In rejecting this claim, the court noted that the officer was approximately 40 yards behind the suspect, that both parties were running, and that the suspect was holding a BB gun in front of his body. On the basis of this evidence, the court concluded that the officer could only have imagined that his life was going to be endangered, since there were no facts to indicate that from his viewpoint his life was in apparent danger. A bare fear, the court explained, is not sufficient to justify a shooting. Palmer v Hall (DC Ga) 380 F Supp 120. Q. When you looked back over your right shoulder, did you see [defendant]? A. Yes. Q. What was he doing? A. He was running towards me and pointing his pistol in my direction. Q. Did he say anything to you? A. No. Q. How far away from you was he when you looked back? A. About 15 yards. Q. What time of day did this take place? A. About two oclock in the afternoon. Q. What was the weather like then? A. It was a bright, sunny day. Q. What happened to your rifle when you were hit. A. I dropped it on the ground and kept running.
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Q. What happened next? A. I saw a lady on the other side of the street opening the door to a car that was parked there. I ran across the street and grabbed her keys and jumped in the car and drove it away.
18. Rebuttal of possible claim that arrestees injuries were received in car crash
Q. When you drove away, what direction were you heading in relation to [defendant]? A. I was heading back toward him, but before I got to him I began making a right turn onto [street]? Q. What happened then? A. Just as I was making the turn, I heard shots and then I lost control of the car. The street I was turning into was a narrow street and when I lost control of the car it veered over to the left-hand side of the road, and before I could gain control of the car I hit a car that was parked over there. Q. How fast were you going when the crash occurred? A. I dont know, but it wasnt very fast. As soon as I lost control of the car, I hit the brakes, and I was fairly well stopped by the time I crashed. Q. Did your head collide with anything during the crash? A. No. Q. Were you hurt in any way during the crash? A. No.
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Q. Did you keep going down the alley? A. No. I went a short way down it and saw that it was a dead end. Q. What did you do then? A. I went back up the alley to the street, but just as I got there I saw [defendant] coming around the corner, so I went back into the alley. Q. Why did you do that? A. It was the only thing I could think of at the time. I was afraid that if I went back out onto the street [defendant] would shoot me. He wasnt very far away by that time. Q. What happened after you went back into the alley? A. I looked for some way out but couldnt find any. There was about a 10-foot stone wall at the end of the alley, and I tried to get over that. Q. Did you make it? A. No, it was too high. It was also slick and there werent any places to get a hand or foothold. I tried once but I slipped back to the ground. Q. Did you make any other attempt to get over the wall? A. Yes. I moved over to the right side of the wall where it joined the building on that side of the alley and tried to use the building to work my way up. Q. Did you succeed? A. No. Q. How close did you come to getting over the wall? A. I never managed to get a hand up on top of the wall. I didnt get close at all to getting over it. Q. After your second attempt, what happened? A. I looked back over my shoulder and saw [defendant]. Q. How far from you was he? A. About 20 feet. Q. Was he moving? A. No, he was just standing there. Q. What happened then? A. I remember looking back at the wall and then I heard a gun go off and was hit in the back. Q. Did [defendant] say anything before you were hit? A. No. Q. When you looked back at the wall just before you were hit, what were you thinking? A. I had decided to give up. There was no place to run, and by that time I was feeling pretty weak from the beating and the gun wound I had already received. Case Illustration: Type of circumstances required to show that officer had reasonable
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belief that use of deadly force was necessary. The officer testified that as he was pursuing the suspect, the suspect disappeared into the darkness and that when, by using a flashlight, he finally located the suspect, he was in the process of attempting to get over a fence that was more than three feet high. The officer stated that by the time he could have reached the fence, the suspect would have been over it and into the next yard, Thus, after giving the command to halt, which went unheeded, the officer fired at and wounded the suspect. On the basis of this evidence, the court concluded that even though the officer was only 15 feet from the suspect when he fired the shot, and although two other officers were in the general neighborhood, the jury was fully justified in finding that the officer reasonably believed that the shooting was necessary to prevent the suspects escape into the darkness of night. Martyn v Donlin Conn , 198 A2d 700.
C. Testimony of Eyewitness
20. Confirmation of fact that arrestee sustained injuries before car crash
[after introduction and identification of witness] Q. What is your occupation? A. I am a student. Q. How old are you? A. Seventeen. Q. Do you know either [plaintiff] or [defendant]? A. No. Practice Observation: The testimony of the arrestee is often diametrically opposed to that of the arresting officer. Thus, since the arrestee has the burden of establishing excessiveness, (see 3, supra), the testimony of an apparently neutral eyewitness may be especially helpful. Q. Did you see them on [date]? A. Yes. Q. Under what circumstances? A. I was walking along [street] when I saw [defendant] pulling [plaintiff] toward his police car. Q. What was the condition of [plaintiff]? A. His nose was bleeding and his left eye looked all puffy. Q. Did you see [defendant] hit [plaintiff]? A. No, but he pushed him up against the squad car pretty hard.
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21. Confirmation of fact that officers use of deadly force in self-defense was not justified
Q. What happened then? A. Well, [plaintiff] began to run across a field toward [street]. As he was running, he picked up a rifle. Q. Can you describe exactly how he picked the rifle up? A. He bent over as he was running and grabbed it by the stock. Q. What hand did he use to pick it up? A. His right hand. Q. In what direction was the barrel pointing? A. Straight ahead. Q. Which was was that in relation to [defendant]? A. One hundred eight degrees away from him. Q. What was [defendant] doing at this time? A. He was chasing [plaintiff]. Q. Was his gun drawn? A. Yes. Q. What happened after [plaintiff] picked up his rifle? A. He ran a few more yards and then looked back and then {defendant] fired his pistol and hit [plaintiff] in the right arm. Q. What did [plaintiff] do then? A. He dropped his rifle and grabbed at his right arm, but kept running. Q. You mentioned that [plaintiff] looked back just before he was hit. Could you describe the manner in which he looked back? A. He looked back over his right shoulder. He didnt actually turn around. Q. Did you notice his rifle when he looked back? A. Yes. Q. Is there any reason you noticed [plaintiff]s rifle at this time? A. Yes, as the barrel moved around, the sun momentarily glanced off of it and that caught my attention. Q. When [plaintiff] looked back how was his rifle pointing in relation to [defendant]? A. It was pointing off to [plaintiff]s right side, about 90 degrees away from [defendant]. Q. Did you at any time see [plaintiff] point the rifle in [defendant]s direction? A. No. Q. How far away from [plaintiff] and [defendant] were you when [plaintiff] looked back? A. I was about 15 yards from [defendant] and 25 or 30 yards from [plaintiff].
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22. Confirmation of fact that arrestee received no additional injuries in car crash
Q. After [plaintiff] was hit, what happened? A. He disappeared through the trees and I lost sight of him. Q. Did you see him again? A. Yes, I walked up to the corner of [street] and [street] and saw [plaintiff] heading toward me in a car. Q. Did he go by you in the car? A. No, before he got to the intersection I was on, he started to turn right. Q. How far was that from where you were standing? A. About 40 or 50 yards. Q. What happened then? A. [Defendant] began firing his pistol at the car and [plaintiff] seemed to lose control while he was turning. Q. What happened when he lost control? A. [Plaintiff] went across the center lane and hit a car on the other side of the street. Q. Did you have a good view of the crash? A. Yes, it occurred while [plaintiff] was turning and before he had gone very far down the street, so it was visible to me. Q. How fast do you estimate that [plaintiff] was going at the time he crashed? A. Pretty slow, maybe only five miles an hour or so. He had been coming pretty fast down the street, but when he was making the turn and seemed to lose control, he hit the brakes real hard and had slowed way down when he hit. Practice Reminder: An estimate of the speed at which a vehicle was moving is generally viewed as a matter of common observation rather than expert opinion, and it is well settled that any person of ordinary ability and intelligence having the means or opportunity of observation is competent to testify to the rate of speed of such vehicle. 31 Am Jur 2d, Expert and Opinion Evidence 157. Q. What happened after the crash? A. I saw [plaintiff] get out of the car and run down the street, and [defendant] followed him. Q. What did you do then? A. I went over to the car that [plaintiff] had been driving and looked at it. Q. What condition was it in? A. The left front tire was flat and the left front fender was banged up pretty well. I didnt
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see any other damage. Q. Did you look inside? A. Yes. Q. Did you notice any damage inside? A. No. Q. Were any windows on the car broken? A. No.
Q. Did you notice anything that looked like blood stains inside the car? A. Yes, there were some blood stains on the back of the front seat. Q. In relation to where a driver would be sitting, where were these stains? A. They were near where the right arm or shoulder would hit the back of the front seat. Q. Did you see any of these stains anywhere else in the car? A. No. Case Illustration: Evidence that the arrestees injuries were received at the hands of the police officer and not from another source. Where a suspect had been involved in a car crash, but claimed that he was uninjured, and then had been allegedly beaten by the arresting officers, the court emphasized testimony from a disinterested bystander who stated that he had looked into the suspects car and had seen no blood in it as evidence that the suspects injuries were caused by the arresting officers. The court also pointed out that it did not seem probably that the suspects nose was broken as a result of the collision since he showed no signs of any other face injuries when examined by a doctor. Arroyo v Walsh (DC Conn) 317 F Supp 869.
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