[Harold Mayo]

Is it true in all US jurisdictions that you ARE within the bounds of the law if you shoot a fleeing felon in back if he is a danger to society?

For an example of this:

Let us say that you hear noises outside of your home at night. You decide to not (yet) call "9-1-1" since it may be nothing but you go outside with a handgun and Surefire. You round the corner of your home to see a guy setting fire to the gasoline that he has splashed on your home (which contains your sleeping wife and three cute young children). He is an arsonist who (whom?) you have caught in the act of setting fire to a home containing people. He sees you and turns to run. He is not a threat to you but can you shoot him?

I've had several people "in the know" say that you CAN as long as the fleeing person/felon poses a "threat to society". I've had other people tell me that, since he poses no immediate threat to you, that you are NOT justified in doing so.

Anyone have any insight into this?

[Preacherman]

On the contrary, in most US jurisdictions, you'll be in deep trouble with the law if you shoot a fleeing felon who is posing no danger to you. In most jurisdictions, the law can be summarized as saying that you are entitled to use lethal force to stop an immediate and otherwise unavoidable danger of death or serious injury directed against you and/or those under your care, unjustly or illegally.

To sum up each salient point:

1. STOP: Not to kill, only to stop the threat. If, once you've used deadly force, the assault has stopped, but the assailant is still alive, it's murder if you shoot him again.

2. IMMEDIATE: Not something threatened in future (as in "I'm gonna kill you for that someday!"), but a threat of action right now, where the threatening party clearly has the means and the intention to hurt or kill you.

3. OTHERWISE UNAVOIDABLE: Some jurisdictions don't mandate that you flee the danger, but others do. If you're in your own home, many jurisdictions give you added rights, but others don't. Basically, if you can avoid the threat by withdrawing, most jurisdictions expect you to do so. If you can't withdraw, either because it's physically impossible or because to do so would expose you or someone else to greater danger, then generally you don't have to.

4. DEATH OR SERIOUS INJURY: The threat against you must encompass these realities. If the threat is simply "I'm gonna punch you in the nose!", that does not entitle you to use lethal force in response. If the threat is made without weapons, it's unlikely that you'll be on good legal grounds for using a weapon in response, unless there's a significant disparity of force (size, age, numbers, etc.).

5. YOU OR THOSE UNDER YOUR CARE: You are entitled to act to defend yourself and/or those under your care (typically immediate family). However, if you see two guys beating up on one another, and you shoot one because you felt he was about to seriously hurt the other, you may or may not get away with it. In most cases, since there was no direct link between you and the victim, you might end up being charged with criminal negligence at least, if not party to an assault on the guy you shot!

6. UNJUSTLY OR ILLEGALLY: You can't use deadly force to stop a legitimate and/or legal "assault" on you. If a cop tries to arrest you, you do NOT have the right to use lethal force to stop him, even if the arrest is completely unwarranted. You can always sue the pants off him and his department for wrongful arrest. Similarly, a burglar who you find in your home, and attempt to detain, is NOT entitled to use lethal force to defend himself against you (even though he probably will anyway - just illegally! :D ). However, if he flees (thereby no longer posing any threat to you), and you chase him, shooting at him, and he turns around and fires at you, he IS legally using lethal force to defend himself against an illegal attack - yours! In some jurisdictions, he may be convicted of assault anyway, but in others, he won't even be charged with illegal use of lethal force, as the assault against him was illegal, and he was therefore entitled to defend himself. This may sound wierd, but it's happened before...

There are good reasons why most top self-defence instructors say the best fight is the one that never happens, or that you walk away from before it starts!

To use your "arsonist" example: if you, by shooting, could prevent the arsonist from setting fire to your home, thereby preventing a deadly threat against your family, you would probably be legally correct in doing so. However, if the fire is already set, and the arsonist is fleeing, you would probably not be justified in shooting. Similarly, if he sees you, drops his box of matches and runs off, without setting a fire, you are almost certainly going to jail if you shoot him. If you try to make a citizen's arrest, and he runs, you are again not on solid legal ground if you shoot to prevent his escape. Cops are given much more latitude in this than you are, and even they are tightly regulated in how far they can go.

[TheeBadOne]

NO

[TexasVet]

:D

Under certain circumstances, of course, but fairly liberal ones here. You have to find out the specific state laws where you reside. findlaw.com is pretty good for this.

[Harold Mayo]

The persons who touched on this do expert witness work and are pretty solid on the law. What everyone is citing seems to be the regular self-defense stuff, which is what I am used to hearing and believing and I was quite shocked to hear that you CAN shoot in a situation like I described.

I should have asked more questions while I was there, though. I have complete confidence in the persons instructing as they have been involved in cases like this for a quarter of a century BUT I am now wondering if what I heard was aimed solely at the LEOs present.

I was hoping that someone would be able to shed light on the subject for me (thanks for the lengthy reply, Preacherman, but I am still puzzling over it). I have found a US Supreme Court case, Tennessee v. Garner, which contains a "fleeing felon standard" but it seems to apply to LEOs and not civilians. Normally, though, there is no distinction made between what a LEO and a civilian can do when it is a FELONY in question rather than a MISDEMEANOR.

Ah, well...I'll do some more research and then see what more responses this thread generates. If it becomes too murky, I'll give the instructors a call and see if they can clarify things for me.

As it stands right now, this is what I'm working from:

Under the Garner "fleeing felon standard," a law enforcement officer can use deadly force against a fleeing felon if: (1) the use of deadly force is necessary to prevent the felon's escape, (2) the fleeing felon has threatened the officer with a weapon or the officer has probable cause to believe that the felon has committed a crime involving the infliction or threatened infliction of serious physical harm, AND (3) the officer gives the felon some warning of the imminent use of deadly force - if feasible.


Which contradicts slightly what I was told, which was that you COULD shoot a fleeing FELON if his escape meant that he could pose a serious threat to society if allowed to go free.

Ah, well...I'll keep digging.

[Steve in PA]

Not unless you want to make his family rich!!!!

[ahadams]

NOT IF HE'S RUNNING AWAY

[Harold Mayo]

Here's a link to the case:

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=471&invol=1&navby=case&linkurl=http://www.aclumontana.org/rights/tennessee.html&graphurl=http://www.aclumontana.org/rights/images/backlink.jpg

[Harold Mayo]

After reading the text of the case, I am still a little murky on the subject. The decision specifically states that it applies to a LEO and even goes on to say that it also applies to a person ASSISTING a LEO (or believing that he is assisting one). This seems to indicate that it does NOT apply to a civilian (which is what we all seem to have been taught in our quest for self-defense-type legal knowledge), although a civilian and a LEO are normally treated in the same manner in regard to actions toward felons.

Attorneys out there...? Anything? With the exception of Preacherman, I'm getting knee-jerk reactions that would be the sort of thing that I would have said prior to a week ago but, after the class I took and the reading I've been doing, I'm not so sure of what I thought was crystal-clear "fact".

[JimP]

Harold, Tenn. V. Garner establishes exactly what you stated for POLICE. That is in line with the FBI's use of force policy. The use of deadly force for civilians is limited to self-defense and not necessarily society at large, (prevent vigilanti's). How can you claim self-defense if the dude is fleeing?? Every Federal Circuit has precedent similar to Garner, even the Ninth from Granola land.

Look also at Graham V. Connor, 490 US 386, 389 (1989) as to establishing the "reasonableness standard".

Also look to "coming to the defense of others". If you come to the defense of others - and you utilize deadly force - your actions must not only be reasonable, but "correct" (i.e.: you are not intervening in the 'wrong' side of an altercation) in most jurisdictions.

Be careful about EVER utilizing deadly force if you are not facing death or SBH.

[Harold Mayo]

Thanks, Jim. I've been madly researching the topic and have found that, for the most part, the standards set by Tenn. V. Garner DO apply only to POLICE, as I had been seeing and as you stated. I have found further case law that deviates from this and it seems to vary a little state-by-state. In Missouri, for example, where this was mentioned and where I took the course mentioned above, it SEEMS that the state allows for CITIZENS to use the same standards as LEOs in regard to fleeing felons. This goes along with what SEEMED to have been stated in general to the class, which contained civilians as well as LEOs. Again...it SEEMS to be the case there.

It also seems that you WERE allowed, as a LEO, to use deadly force against a fleeing felon (NO MATTER WHAT THE FELONY) up until the Tenn. v. Garner ruling where common law examples were done away with or modified to fit modern society and its punishments for felons.

I now have to research, state by state, whether they apply Tenn. v. Garner to CITIZENS in addition to LEOs or if they apply it only to LEOs. Supposedly the Supreme Court's ruling takes precedence over anything applied by the states but there seems to be dissention on that point that has never been settled. The major point seems to be an issue over the Fourth Amendment rights of a supposed felon and violation of them by shooting him without his being a PROVEN felon.

Of course, it is better to just follow the old advice of NOT shooting if they aren't an IMMEDIATE threat to you or family, but the class that I took raised some hypothetical questions to which I had no good answers and which actually hinge on, in some cases, the use of deadly force when the danger is NOT immediate in nature but is likely to occur in the future.

Again, guys, these questions and some of the possible answers were given by LEOs and attorneys who are highly-compensated expert witnesses in firearms cases and I wouldn't be asking the questions if I didn't pretty much take what they say to heart.

I still have to research stuff, though. I can't seem to EVER believe anything someone tells me until I've researched it thoroughly.