Fundamentals of Criminal Law
Adam J. McKee, Ph.D.
Jack Brown, Ph.D.
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Occasionally, law enforcement must use force to effectuate an arrest or apprehend a criminal suspect. (In the author’s experience, the vast majority of criminal suspects will submit to police authority and arrest without physical resistance. A few will attempt to flee, and very few will resort to physically attacking an officer). The appropriate use of force during an arrest or apprehension can operate as a defense to various crimes such as assault, battery, false imprisonment, kidnapping, and even criminal homicide. Under the ancient common law, law enforcement could use nondeadly force to arrest an individual for a misdemeanor and deadly force to arrest an individual for any felony. Modern law enforcement’s authorization to use deadly force is governed by the Constitution. As we learned in our previous discussion of Tennessee v. Garner, the ultimate test of constitutionality when it comes to deadly force is the reasonableness of the force under the circumstances that gave rise to the case.
Today, most states have enacted statutes protecting law enforcement’s reasonable use of force when conducting an arrest or apprehending a fleeing suspect. Under Garner, these statutes must restrict the lawful use of deadly force to potentially deadly situations. If a law enforcement officer exceeds the degree of force permitted under the circumstances, the officer could be both prosecuted for a crime and sued for civil damages. The specter of a Section 1983 suit looms large for officers that use excessive force and violate the reasonableness requirement of the Fourth Amendment.
Modification History File Created: 07/17/2018 Last Modified: 07/17/2018
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