April 20, 2000
POLICE USE OF DEADLY FORCE
By: Veronica Rose, Principal Analyst
You want us to describe the circumstances under which New York and Connecticut police officers may use deadly force.
A New York police officer may use deadly physical force, to the extent he reasonably believes it necessary (1) to defend himself or someone else from what he reasonably believes to be the use or imminent use of deadly physical force and (2) to arrest or prevent the escape of someone who (a) committed a felony involving the actual, attempted, or threatened use of physical force against someone; (b) committed kidnapping, arson, first-degree escape, or first-degree burglary; or (c) attempted to escape by using a gun. The New York Court of Appeals has determined that the term “reasonably believes” conveys an objective standard in addition to the actor's subjective belief (Matter of Y.K., 87 N.Y. 2d 430, (N.Y. App. Div) 1996; People v. Goetz , 68 N.Y. 2d 96, N.Y. 1986).
A Connecticut peace officer, which includes a state or local police officer, is justified in using deadly physical force when he reasonably believes it is necessary to (1) defend himself or someone else from the use or imminent use of deadly physical force and (2) arrest or prevent the escape from custody of someone whom he reasonably believes committed or attempted to commit a felony involving the infliction or threatened infliction of serious physical injury, and if, where feasible, he warned of his intent to use deadly physical force (CGS § 53a-22 (c)).
Both states' laws on police use of deadly force are similar. Both states authorize the use of such force when the police officer reasonably believes his own or another person's life is endangered or when he or a third person is threatened with serious bodily injury. In cases where an officer is not threatened with imminent physical injury, New York restricts the use of deadly force to so-called “forcible felonies.” The New York law, unlike the Connecticut law, does not specifically require that the police warn suspects before using deadly force. The U.S. Court of Appeals for the Second Circuit, in Hemphill v. Schott, says that ambiguous actions by a suspect can justify an officer's use of deadly force, but the officer must, where possible, give advance warning (Hemphill v. Schott, 141 F3d 412 (2nd Cir. 1998)).
Justification as a statutory defense is outlined in New York Penal Law §§ 35.15 and 35.50. In People v. Torres, the court held that (1) a person is not entitled to use deadly physical force against someone else unless he reasonably believes the other person is using or about to use deadly physical force, and (2) there is no justification for the use of deadly physical force in self-defense or in defense of someone else other than as outlined in the applicable statute (People v. Torres, 252 A.D. 2d 60, (N.Y. Sup. Ct App. Div. 1999)).
Under § 35.15, anyone is justified in using deadly physical force when he reasonably believes that (1) someone is using or about to use deadly physical force or is committing or attempting to commit one of certain enumerated felonies and (2) the use of deadly physical force is necessary to avert the perceived threat.
Under § 35.30, a police officer may use deadly physical force to the extent he reasonably believes it necessary to defend himself or someone else from what he reasonably believes to be the use or imminent use of deadly physical force or to arrest a suspect (1) for a felony involving the actual, attempted, or threatened use of physical force against someone; (2) for the felonies of kidnapping, arson, first-degree escape, and first-degree burglary; or (3) who attempted to escape by using a gun. Justification is a defense, not an affirmative defense, and therefore the state bears the burden of disproving it beyond a reasonable doubt.
The seminal New York case interpreting Article 35 is People v. Goetz (68 N.Y. 2d 96 N.Y. 1986). Goetz shot four people on a subway train in 1984 because he said he feared they were going to rob him. The Supreme Court, Appellate Division, dismissed the charges, but the Court of Appeals reversed on the grounds that “reasonably believes” requires an objective, not just subjective, analysis of the circumstances. When a defendant claims the use of force was justified, the court must first determine if the defendant believed deadly physical force was necessary to defend against the imminent use of physical force or deadly physical force. That is the subjective component. The court must next consider whether a reasonable person would have held that belief under the circumstances that existed. That is the objective component. The court said that the reasonableness requirement is meant to ensure that a perpetrator of a violent act does not go free simply because he deemed the use of physical force justified.
According to the court:
We cannot lightly impute to the legislature an intent to fundamentally alter the principles of justification to allow the perpetrator of a serious crime to go free simply because that person believed his actions were reasonable and necessary to prevent some perceived harm. To completely exonerate such an individual, no matter how aberrational or bizarre his thought patterns, would allow citizens to set their own standards for the permissible use of force. It would also allow a legally competent defendant suffering from delusions to kill or perform acts of violence with impunity, contrary to fundamental principles of justice and criminal law (68 N.Y. 2d 96,110).
The justification defense for using deadly physical force is available where the court determines that its use was subjectively and objectively reasonable under the circumstances and that the defendant could not retreat with safety. If a defendant confronted with deadly physical force knows he can retreat with complete safety and fails to do so, the defense is lost (In the matter of Y.K., 87 N.Y. 2d 430, 431 (N.Y. 1996)). Similarly, in People v. Russell, the court ruled that a person who believes that someone is about to use deadly physical force is not free to reciprocate with deadly physical force if he knows that he can avoid doing so by retreating (People v. Russell, 91 N.Y. 2d 280, 670 N.Y.S. 2d 166, 693 N.E. 2d 193).
In People v. Hagi, the court held that, as an element of a justification defense, the determination of reasonableness of a defendant's belief that his life was in imminent danger must be based on circumstances facing the defendant or the defendant's situation. These circumstances, which are not limited to physical movements of the defendant and complainant during the altercation, involve a host of subjective factors, including any relevant knowledge that the defendant has concerning the complainant, the physical attributes of the defendant and complainant, the complainant's reputation for violence and any specific prior acts of violence on complainant's part, if known to the defendant (People v Hagi, 169 A.D. 2d 203, 572 N.Y.S. 2d 663, appeal denied 78 N.Y. 2d 1011, 575 N.Y. S. 2d 819, 581 N.E. 2d 1065).
In a 1998 opinion, the U.S. Court of Appeals for the Second Circuit said that although ambiguous actions by a suspect can justify the use of deadly force by a police officer, the officer must, where possible, give advance warning (Hemphill v. Schott, 141 F.3d 412 (2nd Cir. 1998)).
A Connecticut peace officer is justified in using deadly physical force when he reasonably believes it is necessary to (1) defend himself or a third person from the use or imminent use of deadly physical force and (2) arrest or prevent the escape from custody of someone whom he reasonably believes committed or attempted to commit a felony involving the infliction or threatened infliction of serious physical injury, and if, where feasible, he warned of his intent to use deadly physical force (CGS § 53a-22 (c)).
When a police officer asserts that he used deadly force to defend himself from the use of deadly force, the principal issues are whether (1) the officer believed that (a) someone was using or about to use deadly force against him and (b) he needed to use deadly force to defend himself and (2) the officer's belief was reasonable.
The state's burden of disproving the defense of justification only arises after the defense is raised at the criminal trial against the officer concerning his use of deadly force (State v. Hardwick, 1 Conn. App. 609, Cert. Den., 193 Conn. 804 (1984)). To meet this initial burden of proof concerning the justification defense, evidence presented by either the state or the defense must be sufficient to raise a reasonable doubt in the mind of a rational juror as to whether the officer's use of deadly force was justified under CGS § 53a-22 (State v. Lewis, 220 Conn. 602 (1991)); State v. Bailey, 209 Conn. 322 (1988)).
Once the justification theory is properly raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt, and the judge must so instruct the jury (State v. Havican, 213 Conn. 593 (1990)). In other words, the prosecutor must prove beyond a reasonable doubt that (1) the police officer did not believe that the person was using or about to use deadly force against him, (2) the officer did not use the deadly force to protect himself, or (3) the officer's belief was unreasonable.