Gun Law Interpretation Dispute (any lawyers in da house?)

Free Republic thread ^ | 12/03/01 | Myself

[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).

[connectthedots]

I could be wrong, but I could swear that the revised codes only contain laws that cover government procedure, not laws of citizens...(???)

You are.

[connectthedots]

To:nomasmojarras

You right, you could be wrong. *s*

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

I take it that this is a vote in my favor.

[connectthedots]

This is not a discussion about Texas law nor is it about a law that would be a felony in Washington.

[connectthedots]

Case cites, please.

[bluesagewoman]

I was only a cop, not a lawyer. I think what is being said here is that even though states may have different laws regarding the fleeing felon, everything was trumped by the supreme court decision that basically renders the state laws null. Just like Miranda, etc. I do not know the SC case off the top of my head, but I do know that dealing with shooting at fleeing felons puts it into the realm of SC made laws. In other words, if you shoot a fleeing felon without thinking your life or someone else's life is in immediate danger, you are at the mercy of whether your jury accepts your justification. At the academy we basically were taught that you don't shoot fleeing felon unless there is eminent danger. A cop or a private citizen better hope they are right in their perceptions and actions. Otherwise, it can be criminal charges against you, as well as civil suits, not to mention having the ante upped and being charged with civil rights violations. Juries have the option of convicting or refusing to indict, if the case remains local and depending on the local mindset. However, federal CRV's put it into another ballpark. Again you have to remember that the US Supreme Court has essentially made their view standard across the country. The same as with Search & Seizure, Plain View and other concepts which used to be state matters.

[TheErnFormerlyKnownAsBig]

No, on shooting a guy in the back because he stole a car.

Yes, that the RCWs apply to non LEOs.

[Jason, from Columbus Ohio]

IMHO, use of deadly force, as a citizen, should only be exercised when your life or another's is endangered.
I don't know about shooting a fleeing suspect... even for police, of course they know they have to be careful with that senerio.(hello Cincinnati?).
In most cases, the bad guys will either flee or be detained and handed over to police without a single shot fired.
If it's dark and someone's lurking around outside... usually bright lights shined on him will make flee. Worked for me, and I didn't have to shoot the guy(S) let alone even pull out my tool of defense. They never came back.
But it does come in handy to be familiar with the laws in your state in regards to this issue.

[ctdonath2]

Numerous jurisdictions have such laws.

Two key but unwritten points of such laws are:
- You must have unquestionably witnessed the felony occur
(If someone was shot, you must have seen the actual shooting, not heard a shot then turned to see a guy with a smoking gun)
- The escape of the felon will likely place the community at grave risk of further serious harm
(A fleeing embezzler is not a threat, but the drug-crazed sword-weilding streaker, who you just witnessed decapitate a passer-by, heading toward the playground is)

In other words, the case must be such that a reasonable person would conclude that the fleeing felon must be apprehended RIGHT NOW AT (practically) ALL COSTS.

[bluesagewoman]

Here is a good website that brings together the significance of the Supreme Courts, civil rights, etc. It also documents the case laws you asked about. http://www.laaw.com/uoftl.htm

I don't know how to put it into link, I always fail and come out with weird looking stuff. I've barely got paragraphs down.

Feel free to fix it up.

[bluesagewoman]

Oh yes, the infamous "Reasonable Man." Sort of the the Kilroy of police work. (Isn't "Reasonable Man" an oxymoron?

[Come get it]

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.

Dogrobber, thanks for the input. I do have a question about the above law that says, in section 2 of RCW 9A.16.040, that an officer may use deadly force to prevent escape from the officer. It says nothing about escape from the place of incarceration. I am just curious. From my unlawyerly interpretation, it looks like this law allows police to shoot suspects to prevent escape from the officer. Am I wrong in this? Thanks again.

[Come get it]

I believe you are outvoted here. Thanks for the discussion, however, it was fun.

[Come get it]

...AND I learned something!

[bluesagewoman]

Not escape from an officer, from incarseration, you know, going over the wall. But the main point still is that the Supreme Court ruling trumps.

[ctdonath2]

No, it's a rather serious concept. Unfortunately, our driven-by-the-bizzare culture has trouble believing in it, as exemplified by your response.

[connectthedots]

At the academy we basically were taught that you don't shoot fleeing felon unless there is eminent danger.

I am not trying to argue what a cop may or may not be able to do in order to apprehend a fleeing felon. Furthermore, the policy of your particular law enforcement agency may have been to restrain its officers from actually using deadly force in some cases in which it would have been constitutionally permissable to use deadly force.

The fact that you were taught to not use deadly force unless there was emminent danger does not mean there are cases where the danger was not emminent and deadly force could have been the policy of the local LEA.

Nevertheless, your information does not necessarily relate to what a private citizen can do in the same situation.

[connectthedots]

I think your advice is sound, but what we are actually arguing here is what the law actually permits a citizen to do. What you and I think is the smart thing to do is not the law, it is only our opinion.

[connectthedots]

Dogrobber, thanks for the input. I do have a question about the above law that says, in section 2 of RCW 9A.16.040, that an officer may use deadly force to prevent escape from the officer. It says nothing about escape from the place of incarceration. I am just curious.

The statute does cover this issue, but it was not relevant to the discussion, so I did not include it. Yes, a LEO can use deadly force to prevent escape.

[connectthedots]

Fortunately the law is not subject to the whims of those untrained in the law. Unfortunately it is too often subject to judicial tyranny. Until someone can cite a supreme court case contrary to the clear meaning of the statute, one must look at the plain meaning of the words.

[bluesagewoman]

Boy, you said a mouthful there, the plain meaning of the words. It could depend on what the definition of "is" is. The Reasonable Man (not the oxymoron reasonable man, the real one) is very real when it comes to juries making decisions. If 11 people think it was not reasonable, then number 12 sets you free. If 11 people think you were reasonable, the 12th doesn't do a darn thing. So, besides the mathematical probabilities, one must consider the mind-set of the locale. (Non-law-enforcement people must be "reasonable" also. And civilians have as much responsibility in deadly force to either be right, or at least reasonable, as the police.) Every situation is different, every jury is different, and every locale is different. One person may be in terrible fear for themselves, shoot a perp in the back while the perp is leaving, and not be indicted. The opposite is also true. Law, and especially juries, are not exact science. So, if there is any whimsy brought to a situation like this, it would probably lie with the jury.

And that is the whole kettle of fish in a nutshell, and all I'm going to say. Unless I change my mind. BSW