Taming Self-Defense: Using Deadly Force to Prevent Escapes

Abstract

The fleeing felon rule permits the use of deadly force when it is necessary to prevent the escape of a person who committed a violent felony. In many jurisdictions, analogous rules also permit correctional officers to use deadly force to prevent incarcerated individuals from escaping. Struggling to justify these laws, the Supreme Court has taken the position that deadly force in these cases is a form of self-defense and defense of others. But self-defense and defense of others cannot justify the use of deadly force against escaping criminals. Both defenses are rightly subject to three critical limitations — necessity, imminence, and proportionality — that would not allow preventive force against the purely speculative future threats that fleeing criminals pose. If rules permitting deadly force against fleeing suspects or criminals are justifiable at all, the justification for them must rest, at least in part, on governments’ monopoly on force and concomitant responsibility to protect others from those who resist the most basic compliance with the rule of law. More broadly, our understanding of when deadly force is permissible outside of self-defense needs to be reexamined.