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  1. #1
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    Default Citizens arrest / fleeing felon

    I found this from a thread several years ago and was wondering g if the law is still the same. This seems to say that if you witness someone commit a felony (of certain types) and they attempt to flee, that you are justified in killing them in an attempt to stop them.

    Got me thinking about the nightclub bouncer who was attacked after closing and shot the attacker in the back. I am guessing the law has changed or there was so e other type of circumstance I was not aware of. Anyone have any further info?

    Quote Originally Posted by Rule10b5 View Post
    A "citizen's arrest" is legal in Pennsylvania.

    Actually, this very issue was recently reaffirmed by the Pa. Supreme Court. See Kopko v. Miller, 586 Pa. 170, 185 (Pa. 2006). The thing is, it only works for certain types of offenses (felony and other limited classes too complicated to get in to) personally witnessed by the citizen.

    As an aside, there is a misconception about what an "arrest" actually is. An "arrest" is any "seizure" of a person. A person is "seized," in brief, whenever you're telling him that he can't leave. So, if someone tries to shoot you, you disarm him and hold him at gunpoint, while waiting for the Police to arrive, you've arrested him.

    This is different from a formal or agency arrest (like the one that Steve would execute) where he formally takes the person into the custody of the institution and begins the process of filing formal charges. (I think this what your post means, Steve).

    The distinction isn't really important -- the point is that you're technically "arresting" someone when you engage in the above behavior. You needn't say any nonsense about "I'm placing you under citizen's arrest" or any bullshit like that. Your actions create the end result of an arrest, basically.

    (As a total random and unrelated "isn't it cool" sort of fact: Courts (I don't know whether in Pa.) regularly hold that a person may be prosecuted for resisting an arrest by a citizen, provided that the arrest itself is valid and executed in good faith.)

    Relevant portions of the above referenced case follow (emphasis added by me):

    -------

    "We note that the power of Sheriffs to arrest for crimes committed in their presence is no different from that of a private citizen. In Commonwealth v. Chermansky, 430 Pa. 170, 242 A.2d 237, 239 (Pa. 1968), we reiterated that "a private person [***24] in fresh pursuit of one who has committed a felony may arrest without a warrant. And in Pennsylvania we have [**775] always followed the common law rule that if the felon flees and his arrest cannot be effected without killing him, the killing is justified." However, we narrowed the types of felonies for which the rule was applicable and held that:

    from this date forward the use of deadly force by a private person in order to prevent the escape of one who has committed a felony or has joined or assisted in the commission of a felony is justified only if the felony committed is treason, murder, voluntary manslaughter, mayhem, arson, robbery, common law rape, common law burglary, kidnapping, assault with intent to murder, rape or rob, or a felony which normally causes or threatens death or great bodily harm.


    Id.at 240. See Commonwealth v. Corley, 316 Pa. Super. 327, 462 A.2d 1374, 1379 (Pa. Super. 1993) ("we hold that a citizen's arrest can be made for a breach of the peace that is personally observed by the arrestor."), aff'd on other grounds, 507 Pa. 540, 491 A.2d 829, 834 (Pa. 1985) (declining to rule on the issue).
    -------

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    Default Re: Citizens arrest / fleeing felon

    Quote Originally Posted by 90volts View Post
    .....This seems to say that if you witness someone commit a felony (of certain types) and they attempt to flee, that you are justified in killing them in an attempt to stop them.
    .....
    Oh boy !

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    Default Re: Citizens arrest / fleeing felon

    I'm unaware of any change to the Chermansky holding of 1968. In fact SCOPA cited that specific language from Chermansky in a 2006 ruling (Kopko v. Miller) thereby tacitly reaffirming the holding.

    That being said, I would be hesitant to try a citizens arrest in any but the most extreme circumstances. Especially knowing that my actions and supposed justifications occurring in an emotionally charged moment will be dissected and evaluated at leisure by the courts and juries both at the criminal and civil level.

    There are a few old threads hashing out the question somewhere here.
    Last edited by tl_3237; July 17th, 2014 at 08:19 PM.
    IANAL

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    Default Re: Citizens arrest / fleeing felon

    I've performed a "citizens arrest" only twice and both for the same reason
    DUI

    I felt with a high sense of probability that if I didn't do something, people were certain to die

    I can't think of a case Id ever use deadly force to stop a fleeing felon unless imminent danger was present
    Last edited by BimmerJon; July 17th, 2014 at 08:33 PM.

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    Default Re: Citizens arrest / fleeing felon

    Tennessee v. Garner 1974. To summarize...Shooting a fleeing felon is generally not ok. I am not a lawyer and this is not legal advice.

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    Default Re: Citizens arrest / fleeing felon

    Quote Originally Posted by Cornhusker View Post
    Tennessee v. Garner 1974. To summarize...Shooting a fleeing felon is generally not ok. I am not a lawyer and this is not legal advice.
    Tennessee v. Garner, 471 U.S. 1 (1985) involved the shooting of a knowingly unarmed burglary suspect fleeing from police after being told to 'halt'. The SCOTUS decision has as its basis a 4th Amendment question and hinged on TN law and police policy:
    In using deadly force to prevent the escape, Hymon was acting under the authority of a Tennessee statute and pursuant to Police Department policy
    SCOTUS also weighed in on the application of common law regarding deadly force on "fleeing felons" noting that state laws are trending against its application but they did not opine that it was no longer allowed. Also they made a distinction about the case in hand being one of 'property' crime' versus a 'violent' crime. This may fall in with the SCOPA limiting pronouncement in Chermansky.

    The final holding in Garner:
    Held: The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against, as in this case, an apparently unarmed, nondangerous fleeing suspect; such force may not be used unless necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.
    That being said, there does not seem to be a bright line rule when a private citizen can use deadly force when making a 'citizens arrest'. Yes, we have Chermansky but , as I said before, the circumstances of the encounter will be weighed heavily by the subsequent 'triers' of your actions. Unless you can present a cogent and convincing argument that the felon was armed and dangerous, he presented a clear and present danger to the public at large upon escape and his detainment was impossible without the application of deadly force, it would be better to be a good-eyewitness rather than an active participant. This is presuming that the felonious activity has ceased and the perpetrator is merely attempting to leave the scene. Of course the provisions of self-defense and defense of others (18 Pa CS 505, 506) remain in play independent of the 'fleeing felon' issue but they can only be invoked when all their prerequisite conditions are fulfilled at the time of force application.

    Other considerations/game changers:
    1. if the force application is being made at the behest of an LEO under 508;
    2. unless self-protection, protection of others, or law enforcement is in play then the civil liability protection of the newer "stand your ground/castle" doctrine (42 Pa CS 8340.2) would not be invocable.
    IANAL

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    Default Re: Citizens arrest / fleeing felon

    Quote Originally Posted by Cornhusker View Post
    Tennessee v. Garner 1974. To summarize...Shooting a fleeing felon is generally not ok. I am not a lawyer and this is not legal advice.
    I am not a lawyer and this is not legal advice, but the PA courts have indicated that there are circumstances in which a fleeing felon may be shot, given the presence of a reasonable assumption that they may not be identifiable and thereby aprehendable at a later time, or that they are intending to commit another "heinous crime against the body" in the immediate future:

    "A private person in fresh pursuit of one who has committed a felony may arrest without a warrant. And in Pennsylvania we have always followed the common law rule that if the felon flees and his arrest cannot be effected without killing him, the killing is justified. We hasten to note that before the use of deadly force is justified the private person must be in fresh pursuit of the felon and also must give notice of his purpose to arrest for the felony if the attending circumstances are themselves insufficient to warn the felon of the intention of the pursuing party to arrest him.
    The common law principle that a killing necessary to prevent the escape of a felon is justifiable developed at a time when the distinction between felony and misdemeanor was very different than it is today. Statutory expansion of the class of felonies has made the common law rule manifestly inadequate for modern law.2 Hence, the need for a change or limitation in the rule is indicated. We therefore hold that from this date forward the use of deadly force by a private person in order to prevent the escape of one who has committed a felony or has joined or assisted in the commission of a felony is justified only if the felony committed is treason, murder, voluntary manslaughter, mayhem, arson, robbery, common law rape, common law burglary, kidnapping, assault with intent to murder, rape or rob, or a felony which normally causes or threatens death or great bodily harm. We also note that for the use of deadly force to be justified it remains absolutely essential, as before, that one of the enumerated felonies has been committed and that the person against whom the force is used is the one who committed it or joined or assisted in committing it. If the private citizen acts on suspicion that such a felony has been committed, he acts at his own peril. For the homicide to be justifiable, it must be established that his suspicion was correct."
    Commonwealth v. Chermansky, 430 Pa. 170, 173-174 (Pa. 1968) (citations and footnotes omitted).http://scholar.google.com/scholar_ca...13411915377100

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    Default Re: Citizens arrest / fleeing felon

    As pointed out above, I would not trust being able to convey my position and legitimate reasons to judge and jury.

    Example...I try to say he already robbed at gunpoint and it looked like he was really thinking about shooting the victim. His getting away would be a danger to another person who may be killed next time.

    Objection. Conjecture on his being close to shooting the victim. Conjecture that he would ever rob again. Sustained. The jury will disregard those remarks by the witness.

    Sorry... I'd like to help, but the realities are against it being worthwhile.

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    Default Re: Citizens arrest / fleeing felon

    Quote Originally Posted by Cornhusker View Post
    Tennessee v. Garner 1974. To summarize...Shooting a fleeing felon is generally not ok. I am not a lawyer and this is not legal advice.
    TN v Gardner was about law enforcement officers use of force. It did not apply to the average person.

    The reason why the courts came to that conclusion is because LEO's are an arm of the government and people are afforded a right to Due Process before being killed, except in certain situations.
    RIP: SFN, 1861, twoeggsup, Lambo, jamesjo, JayBell, 32 Magnum, Pro2A, mrwildroot, dregan, Frenchy, Fragger, ungawa, Mtn Jack, Grapeshot.

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    Default Re: Citizens arrest / fleeing felon

    Here is the Chermansky ruling, and the most pertinent info in bold. Pay special attention to the underlined bold section.

    The general rule is: you must announce your intention to arrest them at minimum. Then, if you happen to kill them because you could not effect the arrest - it will be your duty to prove that they committed one of the enumerated felonies.

    OPINION BY MR. JUSTICE EAGEN, May 21, 1968:

    John Phillip Chermansky was convicted by a jury in Montgomery County of murder in the second degree. A motion for a new trial was dismissed and a prison sentence of two and one-half to ten years was imposed. Chermansky appeals from the judgment.

    It is urged that, viewing the trial testimony in the light most favorable to the Commonwealth, a finding of murder cannot be sustained or, in the event this position is not affirmed, the verdict was against the weight of the evidence.

    The prosecution arose as the result of the fatal shooting of Marcelle Hardison at about 2:30 a.m. on March 19, 1966, on a public street near Chermansky's home. The Commonwealth's evidence at trial that Chermansky fired the fatal shot with a deer rifle was not challenged, but it was asserted that the killing was accidental or, if intentional, justifiable.

    Chermansky testified that, while sleeping in his home, he was awaked by a noise; that he found a set of double doors on the side of his house pushed in about eight inches and kept from opening completely by an attached chain; that, upon looking out a window, he saw an unknown individual come out of an alleyway adjacent to his home and proceed to a house across the street, where "he started fixing around the windows"; that the individual then ran into an alleyway as an automobile came down the street; that shortly thereafter he saw this same individual ". . . monkeying around the windows" of another house across the street; that he sent his son out the back door of his home to notify the police; that he secured his rifle, opened the front door and went out on the doorstep, intending to restrain the prowler until the police arrived; that the prowler then started to run and he yelled "Halt or I'll shoot"; that, when the prowler continued
    [430 Pa. 173]
    to run, he fired a shot in the direction of a tree, intending not to kill or injure the prowler, but only to frighten him.
    Justifiable Homicide

    A private person in fresh pursuit of one who has committed a felony may arrest without a warrant. Commonwealth v. Micuso, 273 Pa. 474, 117 A. 211 (1922); Commonwealth v. Long, 17 Pa.Super. 641 (1901); 2 Trickett, The Law of Crimes in Pennsylvania 683 (1908). And in Pennsylvania we have always followed the common law rule that if the felon flees and his arrest cannot be effected without killing him, the killing is justified. See Commonwealth v. Micuso, supra; 2 Trickett, supra. We hasten to note that before the use of deadly force is justified the private person must be in fresh pursuit of the felon and also must give notice of his purpose to arrest for the felony if the attending circumstances are themselves insufficient to warn the felon of the intention of the pursuing party to arrest him.

    The common law principle that a killing necessary to prevent the escape of a felon is justifiable developed at a time when the distinction between felony and misdemeanor was very different than it is today.1 Statutory expansion of the class of felonies has made the common law rule manifestly inadequate for modern law.2 Hence, the need for a change or limitation in the rule is indicated. We therefore hold that from this date forward the use of deadly force by a private person in order to prevent the escape of one who has
    [430 Pa. 174]
    committed a felony or has joined or assisted in the commission of a felony is justified only if the felony committed is treason, murder, voluntary manslaughter, mayhem, arson, robbery, common law rape, common law burglary, kidnapping, assault with intent to murder, rape or rob, or a felony which normally causes or threatens death or great bodily harm.3
    We also note that for the use of deadly force to be justified it remains absolutely essential, as before, that one of the enumerated felonies has been committed and that the person against whom the force is used is the one who committed it or joined or assisted in committing it. Commonwealth v. Duerr, 158 Pa.Super. 484, 45 A.2d 235 (1946). If the private citizen acts on suspicion that such a felony has been committed, he acts at his own peril. For the homicide to be justifiable, it must be established that his suspicion was correct.

    That the trial court correctly and fairly instructed the jury on the law is not challenged. In arguing that the evidence was insufficient to convict, Chermansky apparently assumes that, since his explanation of the killing was not contradicted at trial, it must be accepted as true and the killing declared justifiable as a matter of law. This position is incorrect.

    Firstly, the truthfulness of Chermansky's testimony was for the jury to determine. Even though it was uncontradicted, the jury still had the right to accept it totally, to believe part of it or to reject it completely. Commonwealth v. Wilkes, 414 Pa. 246, 199 A.2d 411 (1964). Secondly, the intentional taking of human life is presumed to be unlawful and the burden of proving otherwise is upon him who attempts to justify it. Commonwealth v. Wilkes, supra. In other words, justifiable homicide is an affirmative defense.
    [430 Pa. 175]
    Commonwealth v. Weinberg, 276 Pa. 255, 120 A. 406 (1923). Whether Chermansky did or did not meet this burden was for the jury to say. This is particularly so in this case because certain evidence did cast doubt upon whether or not Hardison was in fact a felon.

    It is also urged that proof of malice is lacking and that, at most, Chermansky acted under an honest mistake and thus his crime could rise no higher than voluntary manslaughter.

    It is true that malice, express or implied, is an absolute essential of murder. However, legal malice may be inferred and found from the attending circumstances. Commonwealth v. Lawrence, 428 Pa. 188, 236 A.2d 768 (1968). It consists either of an express intent to kill or inflict great bodily harm, or of a "`wickedness of disposition, hardness of heart, cruelty, recklessness of consequences and a mind regardless of social duty'" indicating an unjustified disregard for the probability of death or great bodily harm and an extreme indifference to the value of human life. Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963).

    By its verdict the jury clearly rejected Chermansky's plea of justification. In the absence thereof, his conduct certainly could be found to evidence a reckless indifference to the value of human life.
    Accidental Killing

    A homicide committed per infortunium, i.e., accidentally, is legally excusable. As explained in Commonwealth v. Flax, 331 Pa. 145, 156-157, 200 A. 632, 637-638 (1938): "Homicide by misadventure (which is excusable) is the accidental killing of another, where the slayer is doing a lawful act, unaccompanied by any criminally careless or reckless conduct. `Three elements enter into the defense of excusable homicide by misadventure: [1] The act resulting in death must be
    [430 Pa. 176]
    a lawful one; [2] it must be done with reasonable care and due regard for the lives and persons of others; and [3] the killing must be accidental and not intentional, or without unlawful intent, or without evil design or intention on the part of the slayer. All these elements must concur and the absence of any one of them will involve in guilt. Even though the homicide is unintentional, it is not excusable where it is the result or incident of an unlawful act, such as pointing or presenting a gun, pistol or other firearm at another person in such a manner as to constitute an offense under the laws of the state, or unlawfully striking another with an intent to hurt, although not with an intent to kill, or driving an automobile at an unlawful rate of speed': 30 C.J., page 87, sec. 269." See also, Commonwealth v. Pavillard, 421 Pa. 571, 220 A.2d 807 (1966).

    In the absence of justification for the killing, the jury was warranted in finding it resulted from the performance of an unlawful act, i.e., pointing and firing a firearm at another person. Hence the killing was not excusable.

    We find no error of law in the record and no abuse of discretion by the court below in refusing a new trial.

    Judgment affirmed.

    Mr. Justice JONES dissents.



    FootNotes

    1 At early common law, virtually all felonies were punishable by death.
    2 See Pearson, The Right To Kill in Making Arrests, 28 Mich. L. Rev. 957, 974-76 (1930).
    3 Restatement, Administration of the Criminal Law (Tentative Draft No. 1, 1931).
    Last edited by knight0334; July 18th, 2014 at 11:07 AM.
    RIP: SFN, 1861, twoeggsup, Lambo, jamesjo, JayBell, 32 Magnum, Pro2A, mrwildroot, dregan, Frenchy, Fragger, ungawa, Mtn Jack, Grapeshot.

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