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Deadly Force - The Common Law and the Constitution

NCJ Number
FBI Law Enforcement Bulletin Volume: 53 Issue: 4 Dated: (April 1984) Pages: 26-31
J C Hall
Date Published
6 pages
This article examines some recent developments in the law of deadly force.
In the absence of a clearly defined constitutional standard, most States have continued to follow the English common law rule about deadly force. Under this rule, the officer must believe in the necessity for the use of deadly force. Accordingly, an officer could use deadly force to prevent escape of any assumed felon, the rationale being that, under 18th century England, all felons were punishable by death in the first place. Even though some States have adopted modifications to the 'fleeing felon' rule, there has been little success in challenging the rule in other jurisdictions. Supreme Court decisions have determined that a municipality may not be sued simply for employing a wrongdoer and that a city cannot claim immunity based on the good faith of its agent. A suit about to go before the Supreme Court challenges the fleeing felon principle. The challenge seeks a ruling on the constitutionality of the fleeing felon rule in the face of the 4th, 6th, 8th, and 12th amendments. States rejecting the common law rule generally take one of two statutory approaches. The first abandons the 'any felony' aspect of the common law and restricts deadly force to those felonies defined as dangerous or forcible and to defense of self and innocent others. The second would permit the use of deadly force when the arrest is for a felony and the person arresting the suspect is a peace officer or assisting a peace officer and there is no substantial risk perceived for innocent bystanders and the felony included or threatened use of deadly force. A total of 40 footnotes are included.