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33 Neb. L. Rev. 408 (1953-1954)
The Use of Force in Effecting or Resisting Arrest

handle is hein.journals/nebklr33 and id is 422 raw text is: THE USE OF FORCE IN EFFECTING OR RESISTING ARREST* Roy Moreland * One of the most difficult and perplexing problems in the law of criminal procedure is the amount of force that may be used in effect- ing an arrest and, conversely, the amount that may be used in resist- ing one. Perhaps this is due, in part, to the many phases and ramifica- tions of the problem. Situations having to do with both felonies and misdemeanors and with arrest both with and without warrant are in- cluded in the problem and, in the case of each, whether the arrester can ever go so far to effectuate his purpose of bringing the party into submission as to take his life, if nothing short of that will accomplish the purpose of the arrest. In the case of the arrestee the problem involves, among other things, a differentiation of rule based upon whether the arrest is legal or illegal. In the case of both the arrester and the arrestee a number of other factors affect the decision in particular cases, such as, for example, whether the defect is patent or latent when the arrest is under a defective warrant. Finally, there, are a number of funda- mentally separate questions, such as the right to self-defense, which often become involved in, and a part of, the general problem of force in effecting or resisting arrest. It thus becomes immediately apparent that one of the major prob- lems in a discussion of the amount of force that may be used in effecting or resisting arrest is that of breaking down the problem so that its various factors may be discussed with some particularity and clarity. With that in mind, it is proposed to begin the discussion with an examination of the situation where the force is exercised by an officer or private person in making an arrest for a major, atrocious felony. A. Use of Force in Effecting Arrest. 1. Where the Arrestee Has Committed, Is Committing, or Is About To Commit a Major, Atrocious Felony. An arrester can use the force requisite to effect an arrest. This general statement is broadly true but apt to be misleading. Of course, the arrester may meet force with force, but that simple torts state- ment will, in most cases, not consummate an arrest-it will result in a stalemate.. The arrester, if the arrestee resists, must necessarily do more than meet force with equal force, he must meet force with suffcient more force to cause the arrestee to yield. But, suppose the situation becomes such in a particular case that the force requisite to effect the arrest would necessitate the taking of the life of the • This article is a chapter of a forthcoming book. •* Professor of Law, College of Law, University of Kentucky. 408

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