Justification: Law Enforcement

At common law, reasonable force short of deadly force may be used by law enforcement officers or private persons to prevent a felony or a misdemeanor that involves a breach of the peace. Deadly force may be used to prevent a felony that threatens death or serious bodily harm, at least if the felony cannot otherwise be prevented (Restatement of Torts, 2d ed., secs. 141–143). The standards for the use of force to prevent crime overlap with those concerning self-defense and the defense of another, as well as the standards concerning the use of force for arrest. Thus, if the actor is the victim of the crime, or is aiding a victim, then standards concerning self-defense will support his actions; similarly the prevention of the crime will often entail an arrest of the offender.

By the standards established in the Garner case, discussed above, it appears that the standards for the use of deadly force by law enforcement officers, limiting their discretion to use deadly force in the prevention of crime to cases of life-threatening felonies, are required by the Fourth Amendment; to use deadly force to prevent a felony that does not threaten life would be disproportionate to the crime and an unreasonable seizure of the person. The powers of private persons to use deadly force, however, not being controlled by the Fourth Amendment, may be more expansive than the powers of law enforcement officers. The common law permits an actor in his home, after giving a warning, to repel an intruder with deadly force, and some states, including Louisiana and New York, retain versions of this rule; New York, for example, permits the use of deadly force to terminate a burglary (N.Y. Penal Law, sec. 35.20(2)). The Model Penal Code permits the use of deadly force to prevent dispossession from the dwelling when the attempted dispossession is not under a claim of right (Model Penal Code, sec. 3.06 (3)(d)(i)). Some states have taken the contrary position that rules similar to the common law rule are too permissive, because they would authorize the use of deadly force under circumstances where it may be disproportionate to the crime, and have permitted the use of deadly force only when the intrusion is reasonably believed to threaten life (LaFave and Scott, sec. 5.9).