During the 911 tragedy we realized that there is a need for Civil Arrest and most of us agreed that there was a need to make air travel safer by a combination of things such as stronger cockpit doors, US Air Marshall, arming pilots and a host of other things. As I write this the security issue constantly evolves.
The heroic actions of the doomed passengers of the flight which ended in Pennsylvania, where one of our own MA’s perished while defeating the terrorists objective, followed by presidential praise and the encouragement to begin America’s War on Terrorism by enlisting the aid and awareness of its citizens.
A number of incidents such as the “Hot Foot” terrorist, and just plain mean, and misbehaved passengers demonstrate that passenger’s are not going to be threatened like sheep to slaughter, and have been aptly praised by their intervention. Whatever we call it, the law calls this a Citizen Arrest.
While in the air, a number of regulations and statutes are involved including International Law, but for these purposes, and until or if, more codified laws are enacted let us look at the general concept of Citizen Arrest or use of force.
A general statement is that a person is justified in using reasonable force in making a lawful arrest and in attempting to prevent the commission of a crime.
A police officer or other LEO has the right to use the force reasonably necessary to overcome resistance by the person sought to be arrested. However, the use of force depends on the validity of the arrest, though reasonable belief by an officer, that an arrest is necessary should protect him. In doing this he must be given the opportunity to state his reasons and to take the steps to legalize the arrest.
Private citizens use of deadly force to arrest one who has committed a crime against property and to prevent his escape is more limited and not co-extensive with the right of a police officer under the same circumstances. In a Massachusetts case the defendant fired at and wounded two persons who had burglarized a drug store across the street from his home. He was indicted for assault and battery by means of a dangerous weapon.
The Court in that case had not formally adopted the cognate provisions of the Model Penal Code. The Court in effect, said that Massachusetts Common Law has long recognized a private citizen’s right to arrest. Nevertheless, limits must be set, as to the use of deadly force, against the dangers of uncontrolled vigilantism and anarchistic actions., and particularly aagainst the danger of death or injury of innocent persons at the hands of untrained volunteers using firearms. The Court went on to state that there would be no wisdom in approving the unqualified right of a private citizen to use deadly force to prevent the escape of one who has committed a crime against property only.
For all practical purposes, a private citizen, not acting under authority of a police officer, has no right to use deadly force in making an arrest for a crime concerned with alone (nor in preventing the escape of one guilty of such crime).
Once the defendant has raised the issue of his right to make an arrest and prevent the escape of the victims (perpetrators of the crime) it’s the prosecutions burden to disprove the defense beyond a reasonable doubt.
In 1985, The United States Supreme Court (SCOTUS) addressed the issue of the use of deadly force in making an arrest in reviewing a Tennessee statute which authorized the use of deadly force against a suspect who flees, as in that case or forcibly resists arrest. The victim of the deadly force had burglarized a home at night and was fleeing in the back yard of the house when the police arrived. The victim (burglar) was apparently unarmed (to the police oficer’s observation) and non-dangerous when he was trying to climb a fence in the back yard. After the police cried out, “police halt”, the burglar continued to try to climb over the fence. The police officer shot him in the back of the head and he died a short time thereafter. The Court held the statute to be “invalid” in so far as it purported to give (the police officer) the authority to act as he did. After pointing out that the common law rule permitted the use of whatever force was necessary to affect the arrest of a fleeing felon, it canvassed the states and admitted that the common law rule has been modified in less than half of them. However, the Court held that the seizure under the 4th Amendment in the use of deadly force is subject to the rule of reasonableness and a balancing process. The Court went on to weigh and balance the effective interest of LEO’s and effective law enforcement as presented by the Petitioners and said “Without in any way disparaging the importance of these goals, we are not convinced that the use of deadly force is a sufficiently productive means of accomplishing them to justify killing nonviolent suspects…The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that the mechanism will not be set in motion.” The Court continued and stated that a majority of police departments in this country have forbidden the use of deadly force against nonviolent suspects
When we apply these laws to the now imposed duty of citizens to defend this country against terrorism, we must weigh the consequences of our acts.
We need to prevent air flight terrorism, if committed only by an unruly drunk, for the good of those in flight and those on the ground.
There is a vast difference between the case of the Hot Foot shoe bomber, which was a pure act of terrorism, and the acts of person who has imbibed too much abetted by pressurization to an altitude of 8000 feet (normal pressurization). Yet consequences of not quelling the action can be the same.
Until we see some change in the law, we must review the SCOTUS Tennessee case.
Remember, the above case dealt with non violent persons. The rules change for violent and deadly conduct where deadly force may be utilized BUT ONLY TO THE EXTENT THAT THE SAME IN REASONABLE IN THE CIRCUMSTANCES.
"The Goddess of Justice is Blind"