NCJ Number
66182
Journal
Vanderbilt Law Review Volume: 33 Issue: 1 Dated: (JANUARY 1980) Pages: 71-100
Date Published
1980
Length
30 pages
Annotation
A REVIEW OF THE LEGAL HISTORY OF POLICE HOMICIDE SUGGESTS THAT ONLY THE DEFENSE-OF-LIFE DOCTRINE IS APPROPRIATE TO GOVERN POLICE USE OF DEADLY FORCE.
Abstract
PRESENT LAWS IN EVERY STATE DENY POLICE HOMICIDE VICTIMS FIFTH AND FOURTEENTH AMENDMENT RIGHTS TO DUE PROCESS, ALLOW THE PUNISHMENT OF DEATH TO BE IMPOSED IN CRUEL AND UNUSUAL FASHION, AND APPEAR TO DENY EQUAL PROTECTION TO BLACKS. THE ONLY CONSTITUTIONAL ALTERNATIVE APPARENT IS TO REMOVE POLICE HOMICIDE FROM THE REALM OF PUNISHMENT AND CONFINE JUSTIFICATION FOR IT TO THE SELF-DEFENSE DOCTRINE. THE ANTIFELONY RULE, A COMMON LAW JUSTIFICATION FOR HOMICIDE TO EFFECT A FELONY ARREST, IS DISMISSED AS AN ANACHRONISM. THE DEFENSE-OF-LIFE POLICY HAS THE VIRTUE OF BEING BOTH CONSTITUTIONAL AND PRACTICAL. IT IS CONSTITUTIONAL BECAUSE IT DOES NOT CONSTITUTE PUNISHMENT AND DOES NOT VIOLATE DUE PROCESS. IT WOULD ALSO BE MORE PRACTICAL TO IMPLEMENT THAN ANY OF THE OTHER ATTEMPTS TO CREATE A POLICY MORE RESTRICTIVE THAN THE COMMON LAW DOCTRINE. IT AVOIDS PROBLEMS ARISING FROM THE MODEL PENAL CODE'S APPROACH ALLOWING POLICE OFFICERS TO SHOOT FLEEING FELONS ONLY WHEN THEY HAVE USED OR THREATENED TO USE DEADLY FORCE AND ALLOWING OFFICERS TO SHOOT FLEEING SUSPECTS OF SPECIFIED FORCIBLE FELONIES. THE DEFENSE-OF-LIFE RULE IS NECESSARY FOR THE SIMPLE REASON THAT ANYTHING ELSE CONSTITUTES EXECUTION WITHOUT TRIAL, IN VIOLATION OF THE CONSTITUTION. FOOTNOTES ARE PROVIDED. (MJW)