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Gun Law Interpretation Dispute (any lawyers in da house?)
Free Republic thread ^ | 12/03/01 | Myself

Posted on 12/03/2001 5:36:08 PM PST by Come get it

I would like to know if there are any lawyers (familiar with WA law) that could settle a debate. This debate started on a previous thread between myself and another freeper (connectthedots). He had announced that in Washington state normal citizens have permission to shoot fleeing suspects if they have committed a felony, and he cited the following law:

RCW 9A.16.020 - Use of force -- When lawful. The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:

(1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer's direction;

(2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody;

RCW 9A.16.030 Homicide -- When excusable. Homicide is excusable when committed by accident or misfortune in doing any lawful act by lawful means, without criminal negligence, or without any unlawful intent.

RCW 9A.16.040 - Justifiable homicide or use of deadly force by public officer, peace officer, person aiding.

(1) Homicide or the use of deadly force is justifiable in the following cases:

(a) When a public officer is acting in obedience to the judgment of a competent court; or

(b) When necessarily used by a peace officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty.

(c) When necessarily used by a peace officer or person acting under the officer's command and in the officer's aid:

(i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony;

(2) In considering whether to use deadly force under subsection (1)(c) of this section, to arrest or apprehend any person for the commission of any crime, the peace officer must have probable cause to believe that the suspect, if not apprehended, poses a threat of serious physical harm to the officer or a threat of serious physical harm to others. Among the circumstances which may be considered by peace officers as a "threat of serious physical harm" are the following:

(a) The suspect threatens a peace officer with a weapon or displays a weapon in a manner that could reasonably be construed as threatening; or

(b) There is probable cause to believe that the suspect has committed any crime involving the infliction or threatened infliction of serious physical harm.

Under these circumstances deadly force may also be used if necessary to prevent escape from the officer, where, if feasible, some warning is given.

(3) A public officer or peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable pursuant to this section.

(4) This section shall not be construed as:

(a) Affecting the permissible use of force by a person acting under the authority of RCW 9A.16.020 or 9A.16.050; or

(b) Preventing a law enforcement agency from adopting standards pertaining to its use of deadly force that are more restrictive than this section.

Legislative recognition: "The legislature recognizes that RCW 9A.16.040 establishes a dual standard with respect to the use of deadly force by peace officers and private citizens, and further recognizes that private citizens' permissible use of deadly force under the authority of RCW 9.01.200, 9A.16.020, or 9A.16.050 is not restricted and remains broader than the limitations imposed on peace officers." [1986 c 209 § 3.]

I have bolded the sections that I think are most important.

I interpret this law to say that RCW 9A.16.040 grants permission for a police officer only (not citizens) to shoot fleeing suspects. I think that it is an all inclusive list of permissible actions by specific persons. Connectthedots says that it limits the police officers, but leaves citizens a broader use of deadly force. The legislative recognition seems to be the trouble spot. It says that the citizens permission to use deadly force remains broader than the limitations on police. I think that it clarifies that RCW 9A.16.040 has no effect on the permission given to citizens under the listed sections. Connectthedots says that any permission granted to officers is also given to citizens, plus some.

I hope I have represented the argument fairly, and I will flag connectthedots so he can clarify his argument in places where I may have misquoted or misunderstood. You can ee the previous thread to follow the arguments for both sides (starting after post 80).


TOPICS: Government; Miscellaneous
KEYWORDS: banglist
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I am just curious about this law, and I have enjoyed the good natured debate with connectthedots. I don't think that either one of us is going to give in on this, so I am seeking a professional opinion. I have told CTD that if I am proven wrong, I will publicly admit defeat.

Bottom line: Is it legal in WA for a citizen to shoot a fleeing felony suspect?

1 posted on 12/03/2001 5:36:08 PM PST by Come get it
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To: connectthedots; *bang_list
Ping
2 posted on 12/03/2001 5:37:28 PM PST by Come get it
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To: Come get it
Duh! I meant "You can see the previous thread..."
3 posted on 12/03/2001 5:39:58 PM PST by Come get it
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Comment #4 Removed by Moderator

To: Come get it
Will you be around for a while tonight? My husband is a lawyer. I'll ask him about this when he comes home tonight. I used to be a cop, and it was no-no on fleeing felon, but I don't know if this if fed or state. I'll find out. BSW
5 posted on 12/03/2001 5:57:33 PM PST by bluesagewoman
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To: Come get it
i think that in wa it is not legal to shoot...if you don't believe it, ask somebody to run, shoot him and flee!...you may have proven your point!..good luck!
6 posted on 12/03/2001 5:57:36 PM PST by mohawk
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To: Come get it
Basically only if yours or anothers life is in danger.

Or

If you happen upon a crime and a LEO asks for assistance or you give assistance to save his life (i.e. he is down and being beaten etc.) you can shoot legally and you have the same legal protections as the officer has. That means you force is justified if you had reason to believe or believed you were in danger, not "if you actually were in danger. The latter is a higher standard that applies to civilians, whereas the former is a lower standard to be met by LEOs because we ask them to go into harms way daily.

7 posted on 12/03/2001 5:58:01 PM PST by TheErnFormerlyKnownAsBig
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To: nomasmojarras
I have the book around here somewhere but can't look for it right now because I'm holding my 4 month old son right now.

Give me a couple of hours and I will have the answers with the exact RCWs.

I am not a lawyer.

8 posted on 12/03/2001 6:03:12 PM PST by TheErnFormerlyKnownAsBig
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To: bluesagewoman; big ern; nomasmojarras
So far your comments have backed me up, but connectthedots hasn't verified his argument yet.

Bluesagewoman, I will check back around 7:45 pacific time, but after that I will check again tomorrow, so your hubby's input would be appreciated. Thanks all.

9 posted on 12/03/2001 6:07:37 PM PST by Come get it
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To: bluesagewoman
Nice thing about Texas is that at night, anyone on the property (inside or out) without consent becomes a target. Not that I would be willing to take a life over simple criminal mischief, or simple trespass, but it doesn't matter which way they are facing or where they are.

Just for the record, I prefer to call 911 and let our very well trained officers handle the outside problems. The response times here are great.

/john

10 posted on 12/03/2001 6:11:57 PM PST by JRandomFreeper
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To: nomasmojarras
You right, you could be wrong. *s*

I know I read the RCWs and they apply to everyone.

12 posted on 12/03/2001 6:20:30 PM PST by TheErnFormerlyKnownAsBig
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Comment #13 Removed by Moderator

To: nomasmojarras
This argument was based on the interpretation of the law as given by connectthedots. If there are indeed other laws governing citizens which grant them permission to use such force, those were not provided (I asked CTD for them in the original thread, if they existed).

If this is the case, all bets are off because the debate was over whether or not this law (RCW 9A.16.040) gave permission to the citizens to shoot fleeing felons. My argument was based purely on the text of the law that I was given as proof of CTD's statements.

14 posted on 12/03/2001 6:26:10 PM PST by Come get it
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Comment #15 Removed by Moderator

To: Come get it
I'm not a lawyer.

You have a common law right to use all necessary force to arrest & hold a felon.

But be prepared to face felony charges on your own conduct if you use 'unnecessary' force, in the opinion of a prosecutor. -- Then, once indicted, you are at the mercy of a judge who can forbid jury nullification.

Don't shoot unless you feel lucky.

The specific wordings of 'law' can be used by clever lawyers & judges to mean damn near anything.

16 posted on 12/03/2001 6:29:46 PM PST by tpaine
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To: Come get it
I'm no lawyer and I don't know if it's legal but there is an important issue for citizen gun owners or police. If you shoot at a fleeing suspect felon or otherwise it is clearly not self defense.

The most likely senerio is the suspect is fleeing because you have brandished a firearm. Regardless of the law an antigun DA and a questionable jury may be inclined to rule against you based on common law.

The only possible exception I can think of to shoot someone in the back is if they were fleeing to retrieve a weapon that was plainly visible when you shot them.

17 posted on 12/03/2001 6:29:50 PM PST by SSN558
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To: Come get it
Bottom line: Is it legal in WA for a citizen to shoot a fleeing felony suspect?

IMHO, no.

If the subject is fleeing, how could anyone, including a peace officer justify the use of deadly force?

I am not a lawyer, but I do work in law enforcement and have extensive military experiance. No were does it say you can shoot a fleeing subject. If the subject is fleeing, he is not a threat to you, or anyone else, and if you, as an LEO or private citizen shoot him/her in the back, your toast in a court of law.

18 posted on 12/03/2001 6:44:06 PM PST by Marine Inspector
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To: Come get it
This is Bluesage's attorney hubby (Dogrobber). There are many states which authorize the use of deadly force for the apprehension of fleeing felons. Most of those laws are/were invalidated by a supreme court decision which limited the use of force for the apprehension of felons to that force necessary to take them into custody and further limited the use of deadly force to those circumstances where the fleeing felon constitutes an immediate deadly danger by his conduct, i.e. he or she is then and there threatening others with deadly force. There is only one exception to this and that is where a convicted felon is escaping from a place of felony incarceration. Otherwise, no citizen or police officer may use deadly force on a felon or person accused of a felony for the mere act of fleeing. In short, stop or I will shoot is a empty threat.
19 posted on 12/03/2001 6:46:34 PM PST by bluesagewoman
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To: Come get it
Last time I saw one of these in court was in Florida where a young hispanic man came home to see a young black man carrying away his TV. The defendant ran into his house, got a gun, ran outside, caught up with the perp and ordered him to stop or he would shoot. The perp kept running and the defendant shot and killed the perp. The defendant had a wife and two children, no record, held a steady job, but could only afford a public defender. I could have gotten him off in a jury trial, but the public defender pleaded him to 22 years on a murder two charge. I went to the jail to visit him and told him I would take his case pro bono as he obviously had gotten bad advice since most conservative juries would have given him a jury pardon (even though they don't get that instruction from the court anymore, conservatives still love justice more than the law). His public defender filed a bar grievance against me, which prohibited me from representing him by creating a conflict of interest, so he's still in jail. It's been about eight years since that happened. I imagine he is a real criminal by now, his kids on drugs or in a gang, his wife on welfare. What a great system we have.
20 posted on 12/03/2001 6:48:37 PM PST by stryker
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