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8
Indivisible Sacramento
Criminal Justice Developments
Presented by John Stoller
Current Law
Current Use of Force
Fleeing Felons
&
Justifiable Homicide
(Pen. Code 196, 197, & 835a)
Penal Code secs.
196, 197, & 835a
Homicide is justifiable when:
1. Death warrants
2. When necessarily committed in overcoming actual resistance to the execution of some legal process, or in the discharge of any other legal duty; or,
3. When necessarily committed in retaking felons who have been rescued or have escaped, or when necessarily committed in arresting persons charged with felony, and who are fleeing from justice or resisting such arrest.
Penal Code
Penal Code s 835a
But what force?
§ 835a. Reasonable force to effect arrest; Resistance
Any peace officer who has reasonable cause to believe that the person to be arrested has committed a public offense may use reasonable force to effect the arrest, to prevent escape or to overcome resistance.
A peace officer who makes or attempts to make an arrest need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested; nor shall such officer be deemed an aggressor or lose his right to self-defense by the use of reasonable force to effect the arrest or to prevent escape or to overcome resistance.
Tennessee v. Garner
"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."
Tenn. v. Garner (1985) 471 U.S. 1, 11
Tenn. v. Garner
471 U.S. 1
Walter Scott
Graham v. Connor
The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.
Graham v. Connor (1989) 490 U.S. 386, 396.
Eric Garner
Graham v. Connor
490 U.S. 386
The Changes
AB 392
Key Changes:
- Requires officers to control situation through sound tactics, repositioning, and other resources, when safe and feasible
- Justifies deadly force where:
- Defendant against death/SBI
- Prevent escape of fleeing felon
- No deadly force where threat is to subject
- But cannot be used in prosecutions.
Use of Force
Conditions & Definitions
Justifiable Homicide
- Preserves self-defense, absent criminal negligence
- Reasonably believes use of force necessary to prevent escape and:
- Felony involving deadly force
- Future death of SBI
- ID'd self, announced force
What's necessary?
Necessary?
An objectively reasonable peace officer in the same situation would conclude that there was no reasonable alternative to the use of deadly force that would prevent death or serious bodily injury to the peace officer or to another person
Reasonable Officer Standard
Reasonable Officer Standard
Mueller Report
Mueller & Congress
Subpoena Power
Subpoena Power
2 USCS § 192
Misdemeanor to refuse
Watkins v. United States (1957) 354 U.S. 178, 187
Cases
We start with several basic premises on which there is general agreement. The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes. It includes surveys of defects in our social, economic or political system for the purpose of enabling the Congress to remedy them. It comprehends probes into departments of the Federal Government to expose corruption, inefficiency or waste.
Eastland v. United States Servicemen's Fund
(1975) 421 US 401
Cases
- Used the Speech & Debate Clause to enforce a congressional subpoena targeted at a potentially fraudulent non-profit. (US Const. art. I, s 6, cl. 1)
- Legitimate interest in investigating subversive elements.
Nixon v. Adm'r of General Servs.,
(1977) 433 U.S. 425
Cases
- Executive privilege is not a blank check.
Anderson v. Dunn
(1821) 19 U.S. (6 Wheat.) 204.
Congress has an implied necessary power to penalize people who are not members for contempt of Congress.
Necessary & Proper Clause (US Const. art I, section 8, cl. 18.)