Justification: Law Enforcement

At common law, law enforcement officers were justified in using any necessary force, including deadly force, to prevent an escape from prison. The Model Penal Code adopted this justification in section 3.07 (3) even though in another section (3.07(2)) the Code limited the use of deadly force in the arrest of a fleeing felon by law enforcement officers to cases where the suspect was believed to pose a threat to human life; the distinction was justified on the theory that there is a special public interest in preventing escape by persons in prison. Most states also continue the common law rule, at least when a warning is given before shooting (LaFave and Scott, sec. 5.10). International law takes the position that the use of deadly force against a prisoner escaping is not justified, because deadly force is disproportionate, unless the prisoner presents a "threat to life" (UN Basic Principles, Article 9, 16). Some authorities in the United States take a similar position, but the legal situation remains unclear. The Fourth Amendment may not apply, because actions against persons in prison, who are not at liberty, may not be "seizures" of the person; thus the question would be instead whether shooting a prisoner who is not reasonably believed to be a threat to life is "cruel and unusual punishment" under the Eighth Amendment. This question is unresolved at present as a matter of constitutional law. From the point of view of proportionality, the better rule would be that deadly force may be used only against a prisoner who is believed to present a threat of death or serious bodily injury, when other means of preventing the escape (such as a warning) have failed (Mushlin, vol. 1, p. 58).