Review the example in Introduction to Criminal Law, Example of Criminal Law Issues. In that example, Linda puts a bra in her purse without paying for it at an expensive department store. When she attempts to leave the store, an alarm is activated. Linda begins sprinting down the street. Colin, a police officer, just happens to be driving by with the window of his patrol car open. He hears the store alarm, sees Linda running, and begins shooting at Linda from the car. Linda is shot in the leg and collapses. In this example, no facts exist to indicate that Linda poses a potentially deadly threat to Colin or others. The fact that Linda is running down the street and an alarm is going off does not demonstrate that Linda has committed a crime necessitating deadly force to arrest. Thus Colin can use only nondeadly force to arrest Linda, such as his hands, or possibly a stun gun or Taser to subdue her. If Linda is unarmed and Colin uses a firearm to subdue her, the utilization of deadly force is excessive under these circumstances and Colin has no defense to assault with a deadly weapon or to attempted murder. Change this example and imagine that Colin pulls over and attempts to arrest Linda. Linda removes a gun from her purse. Under most modern statutes, Colin does not have a duty to retreat and can use deadly force to arrest or apprehend Linda. Under Garner, it is reasonable to believe that Linda poses a danger of death or serious bodily injury to Colin or others. Thus Colin can constitutionally use deadly force to protect himself and the public from harm in this situation. Note that Linda’s theft is probably a misdemean or, not a felony. However, it is Linda’s exhibition of deadly force to resist arrest that triggers Colin’s deadly force response. Under these circumstances, Colin’s use of deadly force is justified and can operate as a legal defense in a criminal prosecution or civil suit for damages.
KEY TAKEAWAYS
- Defense of others has the same elements as self-defense: the individual defended must be facing an unprovoked, imminent attack, and the defendant must use a reasonable degree of force with a reasonable belief that force is necessary to repel the attack.
- Real property is land and anything permanently attached to it. Personal property is any movable object.
- The defendant can use nondeadly force to defend real or personal property if the defendant has an objectively reasonable belief that an imminent threat of damage, destruction, or theft will occur.
- Property owners can use reasonable nondeadly force to eject a trespasser after first asking the trespasser to leave.
- Only nondeadly force may be used to defend property; deadly force may be used to defend habitation.
- The defendant can use deadly force to defend habitation under modern castle laws if an intruder enters occupied premises, and the defendant has an objectively reasonable belief that the intruder will seriously injure or kill the occupants.
- Modern castle laws abolish the duty to retreat when inside the home, occasionally include a presumption that the defendant has an objectively reasonable belief the intruder is going to seriously injure or kill the occupants, and provide civil and criminal immunity from prosecution.
- Use of deadly force by law enforcement is considered a seizure under the Fourth Amendment, so law enforcement cannot use deadly force to apprehend or arrest a criminal suspect unless there is probable cause to believe the suspect will inflict serious physical injury or death upon the officer or others. E
EXERCISES
Answer the following questions. Check your answers using the answer key at the end of the chapter.
- Melanie watches as Betty verbally abuses Colleen. Betty is a known bully who verbally abused Melanie in the past. Betty calls Colleen an expletive and gives her a firm shove. Melanie walks up behind Betty, removes a knife from her pocket, and plunges the knife into Betty’s back. Betty suffers internal injuries and later dies. Can Melanie use defense of others as a defense to criminal homicide? Why or why not?
- Read Common wealthv.Alexander, 531 S.E.2d 567 (2000). In Alexander, the defendant was convicted of brandishing a weapon when he pointed an unloaded rifle at an individual who was repossessing his vehicle in an aggressive and belligerent manner. Did the Supreme Court of Virginia uphold the defendant’s conviction? The case is available at this link: http://caselaw.findlaw.com/va-supreme-court/1454888.html%E2%80%8B
- Read Duttonv. Hayes-Pupko, No. 03-06-00438 (2008). In Dutton, a law enforcement officer asked the victim for her name and date of birth after she allegedly sprayed her neighbors with a hose. The victim refused to respond, and the law enforcement officer handcuffed her and forced her into his vehicle, injuring her wrist. The victim sued for use of excessive force in arrest. Did the Texas Court of Appeals hold that the victim had the right to sue the officer for use of excessive force in arrest? The case is available at this link: http://scholar.google.com/scholar_case?case=17543977294597089197&q=Dutton+v.+Hayes-Pupko&hl=en&as_sdt=2,5&as_vis=1
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