Thursday, July 17, 2014

MO: Shooting Intruder in Back Justified

Attacker who beheaded British soldier

This incident in Missouri shows the use of discretion by  Missouri County Prosecutor Matt Howard.     In this case, the homeowner, Mark Routh, discovered a man, Hanna, attempting to break into his home.  The homeowner armed himself with a shotgun and approached the intruder.  A struggle ensued, during which Hanna stabbed Routh in the upper leg.  As reported in

After a struggle, Hanna began to move away with his back turned and was shot by Routh at a distance of 66 feet, near the outer effective limit for a 12-gauge. The shot peppered Hanna in the back and buttocks with shot, and he fell down and stopped moving.

Prosecutor Howard said that in making his decision not to prosecute, he took into account the fact that there had been a struggle, that Hanna was armed and used a weapon against Routh, and that Routh had a right to stop Hanna, whom he considered a danger, from escaping, possibly to return.

The Fleeing felon law is a feature of the common law in the United States:

The fleeing felon rule under common law permits the use of deadly force against a felon who is clearly in flight from apprehension. 

It used to be extensively applied.  However, that was when felonies were near universally serious crimes that were usually punishable by death or very long prison terms.   The use of deadly force to apprehend fleeing felons repeatedly came under attack during the 1960s and later, and resulted in a Supreme Court decision in Tennessee v. Garner in 1985.   In this decision, police authority to use deadly force was restricted to cases where a clear serious danger to officers, individuals, or the public could be shown. 

Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Pp. 497 U. S. 7-22.
This supreme court ruling was used to revoke numerous state laws allowing the police use of deadly force to apprehend felons.   In Nevada, a court case later extended the restriction to individual citizens, though it was not explicit in the legislature's action, and though the resources of individual citizens are far less than those available to a state sponsored police force.

All the laws that I have seen, however, followed the prescription in Tennessee v. Garner; if the fleeing felon poses a substantial threat to others, then deadly force may be used to stop him.

This is the doctrine applied in the case mentioned in Missouri.  The case is significant in that the trend has been to denigrate this use of deadly force; yet the argument that a person who has just shown a proclivity to attack others with unjustified deadly force needs to be taken into custody to prevent future attacks, is easily understood.   It is impossible to know when another opportunity to subdue the attacker may occur, or what damage he may do if left unchecked.

This doctrine has generally been available in the law.   It has never been eliminated.   Perhaps there will be a resurgence in its application.

©2014 by Dean Weingarten: Permission to share is granted when this notice is included.
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