Schumann v. McGinn

¶1(concurring in part and dissenting in part).

¶2I agree that plaintiff is entitled to a new trial, but join my brother Otis in dissenting from that part of the majority opinion which leaves virtually unlimited a police officer’s privilege to *473use deadly force to apprehend a fleeing feony suspect.1 The majority concludes that deadly force may be used whenever the officer reasonably believes that absent such force he could not effect the arrest of the felony suspect. I join in urging that we adopt the rule that in effecting the arrest of a felony suspect deadly force may not be used unless the arresting officer believes the offense for which the arrest is to be made involved the use or threatened use of deadly force, or he has reasonable grounds to believe the felony suspect may endanger the lives and safety of other persons if his apprehension is delayed. See, Restatement, Torts, § 181; Model Penal Code, § 3.07(2), 10 U. L. A. 484.

¶3When an officer believes the crime for which a suspect is being arrested included the use or threatened use of deadly force, or when the officer reasonably believes that the suspect he is pursuing may endanger the lives and safety of other persons if his arrest is delayed, there can be no doubt that the officer is not only privileged but has a duty to use deadly force to prevent the escape of the fleeing felony suspect. It is equally settled that an officer’s use of such force, other than in self-defense, is never justified or privileged in the arrest of a misdemeanor suspect. See, Prosser, Torts (4 ed.) § 26, p. 135, notes, 5 and 6. The difficult issue presented in this case is the scope of the officer’s privilege to use deadly force in effecting the arrest of a felony suspect whose immediate apprehension is not essential to public safety. As the majority opinion indicates, there are two conflicting interests at stake in these circumstances. The first is that of the state in preventing the escape of the felony suspect, in deterring future escape attempts, and in maintaining the effective arrest power of the police. The second is that of the felony suspect in his own life and in an orderly and impartial adjudication of his guilt or innocence. I believe a sufficient fac*474tual basis is presented to enable this court to balance these conflicting interests, and that it is our duty to do so.

¶4It is very doubtful that the use of deadly force to apprehend a nondangerous, nonthreatening, fleeing felony suspect is necessary to the effective enforcement of the criminal law in Minnesota. As so well stated by the majority, the Hennepin County Sheriff’s Department, the Ramsey County Sheriff’s Department, and the Minnesota Highway Patrol, without waiting for legislative guidance, have all voluntarily ordered their officers not to use deadly force against fleeing felony suspects unless the crime for which the arrest or recapture is sought is a dangerous felony where human life had been put in jeopardy.2 If these local agencies who are charged with the enforcement of the criminal law believe they can enforce that law and make the necessary arrests without the use of deadly force against nondangerous felons, then there is a substantial basis for doubting that the use of such force is essential to the arrest power of other police agencies in either metropolitan or rural Minnesota.

¶5In conflict with this uncertain need for a lethal arrest power is the certain conviction of our society, embodied in our public policy of fundamental rights, that human life is not to be lightly forfeited. There is no felony in Minnesota, however heinous, that is punishable by death. Minn. St. 609.095, 609.10. In other states, capital punishment may be decreed only after due process of law has been afforded the felony suspect.3 I believe that the best interest of an ordered society demands that a man’s life may not be taken on the spot by a police officer without substantial justification. In my view, no such justification exists in the case of a fleeing felony suspect who is believed only to have committed a crime against property and who poses no risk to the lives and *475safety of others except his escape from immediate apprehension. As Professor Wechsler stated at the 1958 meeting of the American Law Institute (A. L. I. Proceedings [1958], p. 285):

“… [T]he preservation of life has such moral and ethical standing in our culture and society, that the deliberate sacrifice of life merely for the protection of property ought not to be sanctioned by law.”

¶6The permanent paralysis of a 15-year-old boy who was caught with a stolen car and the distressed reaction of defendant police officer following the shooting emphasizes as nothing else can the tragedy of any other view.

¶7The majority opinion acknowledges that the Model Penal Code has “much to recommend it” but declines to adopt that rule because the issue presents a “legislative and not a judicial question.” I cannot agree that our responsibility can be so easily abrogated. Although the legislature is charged with defining crimes and defenses, it is traditionally and historically the duty of courts to modify and refine liability for torts. See, Spanel v. Mounds View School Dist. No. 621, 264 Minn. 279, 118 N. W. 2d 795 (1962). As this is a case of first impression in Minnesota, we are asked to define the scope of a police officer’s privilege to use a firearm against a nondangerous felony suspect and thus necessarily to determine the issue of civil liability for resulting injury.

¶8The majority persuasively asserts that there exists a legislative policy to which this court should defer in defining tort liability in the instant case. Minn. St. 609.065(3) provides that an intentional homicide by a police officer is not a crime when necessary to effect the lawful arrest of a felony suspect. Prosser warns us, however, that “the criminal law must be regarded as a very unreliable analogy to the law of torts.” Prosser, Torts (4 ed.) § 2, p. 9. Here, that warning is apt because this criminal statute distinguishes between the killing of felony and misdemeanor suspects, when sound policy dictates that the tort law *476should distinguish between the killing of dangerous and non-dangerous criminal suspects. Surely a police officer should not ibe imprisoned if he mistakes a nondangerous for a dangerous felony suspect and uses his firearm against the former. However, unless he is in violation of specific instructions, his employer ought to bear financial responsibility for mistakes committed in the line of duty. See, A. B. A. Standards for Criminal Justice, The Urban Police Function (Approved Draft, 1973) § 5.5.4 Viewed in this way, it does not follow, as the majority declares, that under the rule urged a police officer contemplating the use of force under emergency conditions would be held to conflicting standards of conduct by the civil and criminal law. A police officer who makes a mistake and uses deadly force against a non-dangerous felon would know unequivocally that he is committing a civil wrong. The legislature and the courts of this state, out of awareness of his difficult job in these emergency circumstances, will not jail him for his mistake, but in no way can that justify granting immunity for a civil wrong. The adoption of the Restatement rule would not result in confusion and unfairness and uncertainty. Rather, and hopefully, it would lead all police officers in Minnesota to do what some, if not most, well-trained and experienced police officers already practice, which is to follow the rule that the use of deadly force is not a proper arrest procedure for nondangerous, nonthreatening felons.

¶9The adoption of the rule urged should be applied prospectively. Defendant officer in this case acted under the then pre- I vailing rules of the St. Paul Police Department. It would be manifestly unfair to apply a new rule to his past actions then] governed by a conflicting police department rule.

¶10I concur in the opinion of Mr. Justice Rogosheske.

¶11I concur in the opinion of Mr. Justice Rogosheske.