NCJ Number
47472
Journal
Capital University Law Review Volume: 7 Issue: 3 Dated: (1978) Pages: 497-506
Date Published
1978
Length
10 pages
Annotation
TWO CONTRADICTORY OPINIONS ON THE USE OF DEADLY FORCE BY LAW ENFORCEMENT OFFICERS TO PREVENT A FELON'S ESCAPE WERE REACHED BY THE SIXTH AND THE EIGHTH CIRCUIT COURTS OF APPEALS. THESE OPINIONS ARE DISCUSSED.
Abstract
IN 1977, THE MOTHER OF A TEENAGED BOY NAMED WILEY SUED THE MEMPHIS TENNESSEE POLICE DEPARTMENT BECAUSE A PATROLMAN WHO APPREHENDED THE BOY IN A SPORTING GOODS STORE BURGLARY FATALLY SHOT THE SUSPECT WHEN HE FLED. THIS CASE EVENTUALLY REACHED THE SIXTH CIRCUIT COURT OF APPEALS, WHICH FOCUSED ON THE RIGHT OF THE FLEEING SUSPECT TO NOT BE DEPRIVED OF HIS LIFE WITHOUT DUE PROCESS VERSUS THE RIGHT OF SOCIETY TO PROTECT ITSELF. THE CONTROVERSY WAS INCREASED BECAUSE, JUST A FEW MONTHS EARLIER, THE EIGHTH CIRCUIT COURT OF APPEALS HAD DECLARED MISSOURI'S FLEEING FELON STATUTE UNCONSTITUTIONAL IN MATTIS V. SCHNARR. IN THE MISSOURI CASE, OFFICER SCHNARR OF THE ST. LOUIS POLICE DEPARTMENT FATALLY SHOT ONE OF TWO BOYS WHO HAD FLED AFTER BEING SURPRISED IN THE OFFICE OF A GOLF RANGE, THE COURT INVOKED THE 'RIGHT TO LIFE' DOCTRINE OF THE ABORTION CASE OF ROE V. WADE, WHICH USED THE DUE PROCESS CLAUSE OF THE CONSTITUTION TO FORBID ABORTIONS AFTER THE SIXTH MONTH OF FETAL DEVELOPMENT. IT WAS ARGUED THAT THE SHOOTING OF A FLEEING SUSPECT WHO WAS NOT ARMED AND POSED NO IMMEDIATE DANGER TO THE COMMUNITY WAS DEPRIVING HIM OF LIFE WITHOUT DUE PROCESS. SUCH A DOCTRINE WOULD ALLOW AN OFFICER TO SHOOT ONLY IF THE SUSPECT WERE ARMED OR DANGEROUS. THIS IS THE DOCTRINE URGED BY THE MODEL PENAL CODE. IN WILEY V. MEMPHIS, THE SAME QUESTIONS WERE RAISED AS IN THE MATTIS CASE. HOWEVER, THE SIXTH CIRCUIT COURT OF APPEALS EMPHASIZED THE STATE'S INTEREST IN ENACTING LAWS TO PROTECT ITS CITIZENS AGAINST FELONS AND POINTED OUT THAT WHEN FELONS ESCAPE THEY ARE FREE TO COMMIT OTHER FELONIES. WILEY DID ADDRESS THE PROPER USE OF FORCE IN PURSUIT CASES, BUT SUGGESTED THAT IF THE APPARENTLY NONDANGEROUS FELON BELIEVES DEDLY FORCE CANNOT BE USED TO APPREHEND HIM OR THAT AN ENFORCEMENT OFFICER MIGHT BE APPREHENSIVE ABOUT USING DEADLY FORCE, ESCAPE WOULD BE ENCOURAGED. WILEY ALSO SPENT A GREAT DEAL OF TIME CRITICIZING THE MATTIS CASE USE OF THE ABORTION 'RIGHT TO LIFE' STATUTE. THE TWO DECISIONS ARE CONTRADICTORY, BUT AS OF 1978, THE U.S. SUPREME COURT HAD REFUSED TO REVIEW THEM. NOTES ARE INCLUDED. (GLR)