Abstract

The so-called “fleeing felon” rule instructs courts and law-enforcement personnel about whether, and when, police may use deadly force to stop a suspect who is attempting to escape arrest. At common law, police were allowed to use deadly force when necessary to prevent the escape of a fleeing felon, even if the escapee did not present an imminent threat of violence to the officers or others. By contrast, the right of private citizens to use deadly force against another person is generally restricted to situations involving self-defense—where an innocent person reasonably believes she is facing an imminent threat of death or serious bodily injury and using deadly force is necessary to prevent those outcomes.

In his provocative Article Taming Self-Defense: Using Deadly Force to Prevent Escapes, Professor Robert Leider ultimately suggests that the limitations on the fleeing felon rule—necessity, imminence, and proportionality—which confine the right of self-defense, could be useful in cabining the state’s authority to compel compliance with law by using deadly force against fleeing felons. What he does not do, at least in this Article, is conduct a detailed comparison of his proposal with others that seek reform of the fleeing felon rule by embracing, rather than rejecting, the model of self-defense. Such a comparison would be enormously helpful, both to a clearer understanding of the implications of Professor Leider’s proposal and to a rational calculation of its relative costs and benefits. In its absence, the self-defense model for amending the fleeing felon rule—perhaps by importing traditional restraints such as imminence and necessity—seems to offer the historical context, intuitive boundaries, and practical accessibility that can usefully guide reform-minded courts, legislatures, and law enforcement.

Document Type

Response or Comment

Publication Information

70 Florida Law Review Forum 169-178 (2019)

Comments

Response to Robert Leider's Taming Self-Defense: Using Deadly Force to Prevent Escapes, 70 Fla. L. Rev. 971 (2018).

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