The Policeman's Privilege to Shoot a Fleeing Suspect: Constitutional Limits on the Use of Deadly Force
![handle is hein.journals/amcrimlr18 and id is 541 raw text is: The Policeman's Privilege to Shoot a Fleeing Suspect:
Constitutional Limits on the Use of Deadly Force
PAUL MOGIN*
Although the use of deadly force by the police has been a subject of increased concern
among observers of the criminal justice system, the issue has largely escaped constitu-
tional scrutiny in the courts. In this article, Mr. Mogin argues that the due process
clause places a meaningful limitation on the use of deadly force: the police cannot use
their guns against a suspect who poses no immediate danger to the police or third parties
unless the crime he is suspected of committing is punishable by death.
A police dispatcher informs a patrolling officer that a crime is reportedly in progress at a nearby
street corner and gives the officer a partial description of the alleged perpetrator. As the policeman
arrives at the scene, he sees a man matching that description running toward a wooded area a short
distance away. The officer shouts, Stop, police, but the suspect pays no heed. It is nighttime, and
the officer knows that if the suspect runs another fifty feet and disappears into the trees, he may be
impossible to find. The man is too far ahead to be overtaken on foot.
One of the most troublesome questions in the enforcement of the criminal law is whether a
policeman should be permitted to use his gun in these circumstances. To provide a satisfactory
answer, the criminal law must resolve a sharp and poignant conflict between its twin responsibilities
of protecting the community from the deepest injuries that human conduct can inflict on in-
dividuals and institutions and controlling the strongest force that we permit official agencies to
bring to bear on individuals.' If the law tells the officer that he may shoot, it authorizes him to ex-
ecute without trial.2 If the law tells him that he may not shoot, it disarms him of the only reliable
means of law enforcement available under the circumstances.3
*A.B., Princeton University, 1977; J.D., Harvard Law School, 1980.
1. Wechsler, The Challenge of a Model Penal Code, 65 HARV. L. REV. 1097, 1098 (1952).
2. Because the firearms currently available are not accurate enough to permit the police to shoot to wound
without a very substantial risk that the wound will be fatal, see J. GOLDSTEIN, A. DERSHOWITZ, & R. SCHWARTZ,
CRIMINAL LAW: THEORY AND PROCESS 331 (1974) (Coroner's Report in Jones v. Marshall, 528 F.2d 132 (2d Cir.
1975)) (The police officer should not think he is going to inflict a nonfatal wound by shooting at an arm or leg. He
should fully expect the shot to be fatal.); MODEL PENAL CODE § 3.11(2) (Prop. Off. Draft, 1962), the law has tradi-
tionally regarded a death that results from a policeman's use of his gun to apprehend a person fleeing from him as
intentional even if the policeman attempted to inflict a nonfatal wound. See, e.g., United States v. Clark, 31 F. 710
(C.C.E.D. Mich. 1887):
Clark says that he aimed low, for the purpose of merely disabling him, but, owing to a sudden des-
cent in the ground, the shot took effect in the back instead of the leg. For the purpose of this ex-
amination, however, I am bound to presume that he intended to kill, as a man is always presumed
to intend the natural and probable consequences of his acts.
Id. at 712.
3. The police do not currently have any other weapon that can effectively prevent the escape of a fleeing
suspect who cannot be overtaken on foot. See PRESIDENT'S COMMISSION ON LAW ENFORCEMENT AND THE AD-
MINISTRATION OF JUSTICE, TASK FORCE REPORT: SCIENCE AND TECHNOLOGY (1967):
A patrol officer. . .has a limited range of weaponry-either the short-range nightstick or the
potentially lethal handgun. He should have other possibilities .... The qualities that must be
sought in a general purpose nonlethal weapon are almost immediate incapacitation and little risk
of permanent injury to the individual who is the target. It must also meet size, weight and other
operational standards.... [A] survey of a wide range of possibilities leads to the conclusion that
those requirements cannot be met by current technology.
Id. at 14.
Although subsequent investigation can lead to the apprehension of suspects who elude the police initially, see
id. at 8 (25% of crimes studied resulted in arrest or other clearance), it is not a dependable alternative, especially](ViewImageLocal?handle=hein.journals/amcrimlr18&div=42&collection=&method=preview&ext=.png&size=3)
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The Policeman's Privilege to Shoot a Fleeing Suspect: Constitutional Limits on the Use of Deadly Force
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