Probable cause and affirmative defenses: Several readers e-mailed me to suggest that it's OK for the police to arrest someone who clearly killed someone, even if seems very likely that
the killing was in self-defense. Self-defense, they argue, is an affirmative defense, which is to say that at trial the defendant has to plead it and introduce some evidence of it. Therefore, the probable cause inquiry should focus only on the case-in-chief, not the affirmative defense.
I don't think that's right. The Fourth Amendment is generally described as forbidding arrests unless there's probable cause to believe that
a crime has been committed. If the police officer has probable cause to believe that someone has been killed, but no probable cause to believe that the killing is unlawful, then the Fourth Amendment test isn't satisfied.
I did a quick search to see what the courts have said about this, and found very little. The one case that's squarely on point is on my side, but it's only a federal trial court case, Dietrich v. Burrows, 976 F.Supp. 1099 (N.D.Ohio 1997):
The test for probable cause is not whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect is committing an act that would be a criminal offense but for the fact that the actor has a valid affirmative defense. The test is whether the officer is reasonable in believing that the actor is in fact committing a criminal offense. Since the arresting officers had actual knowledge that the Dietrichs had a valid affirmative defense to the crime of carrying concealed weapons, the facts and circumstances did not warrant a belief that the Dietrichs were committing a criminal offense.
So I admit this isn't the strongest precedent -- but I know of no contrary ones, and I think that the case is consistent with how the Fourth Amendment rule is usually described.
This, though, of course also leaves the question whether a reasonable police officer might still have had probable cause to believe the killing was unlawful.
Jeff Sterling, for instance, takes this view (as well as the view that the probable cause inquiry shouldn't consider affirmative defenses). But if the press account is correct, then it's hard for me to see this. The woman says the man had broken into her apartment; even if they didn't trust her, there was presumably physical evidence of that.
Texas law views self-defense quite broadly. (Just to give an example, it's even generally lawful to use deadly force to prevent someone from imminently damaging your property at night -- something that I believe is generally not lawful in many other states -- if deadly force seems the only realistic means to do so; Texas is pretty hard-core on this stuff.) I would think that, absent some evidence to the contrary, the situation in that case pretty clearly points to self-defense.
Silver writes: "The dead man looks like a bad guy. But is it
possible he just went there to talk? Not likely, I'll admit. But it is possible, and if it's true, then the wife ([Battered Woman Syndrome] aside) is a murderer." But the test for probable cause is
not mere possibility; it's probable cause. If the police think that it's possible (though not likely) that someone is a criminal, they are free to investigate the person to try to develop probable cause. The Fourth Amendment, however, forbids them from arresting the person based on mere possibility.
UPDATE: Referring to the
article mentioned in the original post, reader James Guinivan writes:
So "[p]olice say they didn't have a choice" and "it's up to the district attorney and the grand jury to decide about charges based on whether it's justifiable circumstances"?
I take it from this that if a police officer is attacked by a perp in the course of duty, and shoots the perp dead, then he or she is arrested and thrown in jail by others on the force? After all, they have no choice, right?
If, on the other hand, the police officer is simply put on administrative leave with pay pending investigation (as is done in most other jurisdictions that I'm aware of), then it would appear that the police do "make such decisions in the field" after all.
