GUEST Columnist: Richard J. Chrystie

Can An 80-Year-Old Man Shoot An Unarmed 'Pregnant' Fleeing Felon -- In The Back?

Robbery suspects Andrea Miller and Gus Adams
Photos:  Long Beach Police Department 

By Richard J. Chrystie, Jul. 27, 2014

In Long Beach, a homeowner, named Tom Greer, was attacked and beaten in his home by two burglars. Despite his injuries -- including a broken collarbone -- Greer managed to get his gun. He shot at his assailants and the intruders fled. As they ran out, one of them, a woman, said, “Don’t shoot me, I’m pregnant.” He shot her anyway, in the back, twice. She was not, in turns out, pregnant. And apparently neither she nor her male companion was armed. Her alleged male accomplice was later captured and charged with murder in his partner’s death, residential robbery, burglary, grand theft firearm and possession of a firearm by a felon. Authorities are investigating whether to file murder and attempted murder against the homeowner. 



A friend, Richard J. Chrystie, who retired from the Los Angeles County District Attorney’s office after 30 years, offered his analysis: 

Penal Code section 197 sets forth justifiable homicide by any person. This includes killing of another in self-defense, in defense of habitation, in defense of family members, to apprehend a fleeing felon and in lawfully keeping and preserving the peace. Penal Code section 198.5 provides for the use of deadly force by any person against someone who has forcibly and unlawfully entered their home. You can look these sections up on the Internet for the full text.

But beyond that, here is some case law regarding the use of deadly force against a fleeing felon by peace officers that, in my opinion, is applicable to non-peace officers as well.

The case law cited most often is the United States Supreme Court case of Tennessee v. Garner (1985) 471 U.S. 1. Tennessee v. Garner stated when deadly force can and cannot be used to prevent the escape of a felony suspect. The following two paragraphs from that case have been cited many times in many subsequent cases and should be read slowly, thoughtfully and, preferably, out loud in order to gain a full understanding of the principles expressed therein:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. . . . A police officer may not seize an unarmed, nondangerous suspect by shooting him dead . . . .

The opinion then continued:

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. 471 U.S. at pp. 11-12.

The later Ninth Circuit Court of Appeals case of Forrett v. Richardson 112 F.3d 416 (9th Cir. 1997), expanded upon the language of Tennessee v. Garner. In the Forrett case, police officers had probable cause to believe that Forrett had just committed a residential burglary where he shot two of the occupants of the burgled premises. The officers went in foot pursuit of Forrett and shot him in order to prevent his escape. The Forrett case stated that so long as the officers have probable cause to believe that a suspect has committed a crime involving the infliction or threatened infliction of serious physical harm, officers may use deadly force to prevent the escape of the suspect and that “the suspect need not be armed or pose an immediate threat to the officers or others at the time of the shooting.” 112 F.3d at p. 420.

The Forrett case also held that the fact the police might have used some other means to prevent the escape of suspect Forrett short of the use of deadly force did not mean that the use of deadly force was unreasonable. It stated:

The Fourth Amendment does not require law enforcement officers to exhaust every alternative before using justifiable deadly force. See Plakas v. Drinski, 19 F.3d 1143, 1148 (7th Cir. 1994). The alternative must be reasonably likely to lead to apprehension before the suspect can cause further harm. It is not . . . any alternative that might lead to apprehension in the future. The option must be reasonable in light of the community’s strong interest in security and preventing further harm. See Kinney v. Indiana Youth Ctr., 950 F.3d 462, 465 (7th Cir. 1991) (noting public interest in preventing dangerous individuals from escaping into the community). 112 F.3d at p. 420.

The California case of Kortum v. Alkire (1977) 69 Cal.App.3d 325, set forth the law in California regarding the use of deadly force by police to prevent the escape of a fleeing felon and, although predating Tennessee v. Garner and Forrett v. Richardson, expresses the same principles later expressed in those cases. Kortum v. Alkire states:

[T]he applicable sections of the California Penal Code, as construed by the courts of this state, prohibit the use of deadly force by anyone, including a police officer, against a fleeing felony suspect unless the felony is of the violent variety, i.e., a forcible and atrocious one which threatens death or serious bodily harm, or there are other circumstances which reasonably create a fear of death or serious bodily harm to the officer or to another. 69 Cal.App.3d at p. 333, underline added.

To illustrate application of the principles expressed in the above case law: if officers had seen Christopher Dorner fleeing from them, they could have shot him in the back.

Would this law apply to the shooting of a fleeing felon by a non-peace officer? In my opinion, the answer is yes.

Consider the following scenario. You – Larry Elder – are awakened at 3:00 a.m. by a sound in your living room. You grab your handgun and cautiously walk towards the source of the sound. In the dim light you see a man holding a bag. Before you can react, he turns towards you and fires a shot. It misses. You then hear two or three clicks as he tries to fire additional shots but his gun does not fire. He then throws his gun at you. You duck to avoid being hit. He then says to you, “This ain’t over asshole” and runs out your front door. You quickly follow and see him now about 10 feet from your door running away. Can you shoot him?

Referring to the case law above, my answer is yes. Recall the language from Tennessee v. Garner – “if there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape.” There is also “public interest in preventing dangerous individuals from escaping into the community.” Furthermore, “the suspect need not be armed or pose an immediate threat to the officers or others at the time of the shooting.” 

Let’s add this to the scenario. Suppose you had a houseguest who was an L.A.P.D. officer, and he was also awakened by the noise and saw the man shoot at you and flee. Could he shoot the fleeing man as he ran from your house? Under Tennessee v. Garner and the other cases cited above, there is no question the answer is yes. There is no reason the answer should be any different for you shooting the man.

So was the 80-year-old man justified in shooting the woman outside his home? Yes. She and her accomplice had committed a crime “involving the infliction or threatened infliction of serious physical harm” They had broken the man’s collar bone which is “serious physical harm.” Since they had burglarized him twice before, there was every reason to believe they might do it again and next time might kill him. Furthermore, shooting the fleeing burglars would serve the “public interest in preventing dangerous individuals from escaping into the community.”

So in my opinion, the 80-year-old man was justified in shooting the fleeing burglar even though she was not “armed or pose an immediate threat to the officers or others at the time of the shooting.” If the case had been presented to me when I was a deputy district attorney, I would not have filed charges against the 80-year-old man.

At any rate, this is my analysis. The case law was taken from an article regarding police use of deadly force appearing in the July 2002 issue of my publication, The Law Enforcement Legal Reporter. The law has not changed from that time.

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