*1 436 414 414 Mich PEOPLE v COUCH 6). (Calendar April Argued No. Decided Docket No. 85979. 26, 1990. Rehearing September Mich 1201. denied 437 Couch, Jr., charged Court L. was in the Detroit Recorder’s Archie possession during manslaughter of firearm the and a with wounding fleeing felony fatally of a felon commission a after court, attempted E. to steal The James who had his car stereo. Roberts, J., quash infor- to denied the defendant’s motions reconsideration, finding killing and that mation justifiable rule under the common-law felon was not homicide fleeing deadly apprehend allowing to use force to a a citizen people’s in limine The further denied the motion felon. court jury instructed in accordance with Tennessee that be (1985), Gamer, by deadly which forbids use of force US nondangerous fleeing arresting on officers in felons grounds, opposed People Whitty, to Fourth Amendment as deadly App recognized which the common-law fleeing apprehension respect to felons force rule with P.J., private persons. Appeals, Mackenzie, and The Court of JJ., ruling Weaver, for а on and remanded the case McDonald jury prosecutor’s request to on the basis of instruct (Docket 100136). remand, that the court held Garner No. On Whitty apply apply and continued to Garner did not that private persons MCL MSA cases of arrests under Jr., P.J., Appeals, Holbrook, The D. E. and 28.875. Court JJ., reversed, holding that the Baguley, and N. A. Mackenzie Whitty with Gamer should modified accordance rule provide applied retroactively to citizen who deadly only use force a felon makes an arrest fleeing has a belief that the from where citizen reasonable physical poses a of serious harm to that citizen or felon threat 101936). (Docket appeals. citizens No. The defendant other Riley opinion joined by Justice Boyle, In an Justice Chief concurring only in Brickley, with and Justice Justice Griffin result, Supreme Court held: part, Appeals decision of the Court of is affirmed change Michigan’s did not as holds Garner insofar appre- respect force law to the use criminal with People v Couch felon, part, respеct hend reversed in with to its adoption regarding of a new standard rule. automatically modify Garner did not state’s criminal this law respect apprehend fleeing use of power felons. The to define conduct criminal as a state offense *2 only lies with the individual states. is the United Not States Supreme require authority Michigan Court without the to to shooting nondangerous crime, fleeing make a felon a it has expressed never an intent to do so. was a civil Garner case that responsibility made no mention of an officer’s criminal for unreasonable actions. Michigan Supreme Arguably, the Court does not have the authority change fleeing-felon the to common-law rule. The Legislature acquiesced has in this Court’s construction of the event, statute. the Court should decline to do so. subject Whether officers citizens to should be criminal killing liability nondangerous fleeing for the felon is a question Legislature. for the Levin, joined concurring Griffin, Justice Justice in rever- sal, Supreme decline, stated that the Court should as a matter restraint, judicial authority may of to exercise whatever have modify suggested by prosecutor. to the criminal law as the fleeing-felon Whether the rule should be confined to situations seeking reasonably in which the citizen to make arrest an poses physical believes that the felon a threat serious harm question Legislature. is a better left to the question Supreme There is no need to reach the whether the authority modify fleeing-felon Court has the rule in a question case where the was not in discussed the Court of Appeals, argument and was not briefed or oral raised at in the Supreme Court. part part. Affirmed in and reversed in joined by Archer, Cavanagh, concurring Justice Justice in part part dissenting private and stated that a citizen who pursuant makes an arrest to MCL MSA 28.875 should privileged fleeing not be to use force felon’s escape arresting reasonably unless the citizen believes that the poses physical felon a threat of serious harm citizen or to used, subject others. If excessive force is the citizen prosecution injury criminal commensurate with the caused. (1989) App 254; part 439 NW2d affirmed in part. reversed Kelley, Attorney General, Frank J. Louis J. Caruso, General, O’Hair, Solicitor John D. Prose- Mich Boyle, George
cuting Attorney, Ward, E. Chief Assis- people. Prosecutor, for the tant Waske, A. R. Sasse and James Kenneth defendant. agree con- J. We with Justice
Boyle, Archer’s United States decision clusion Supreme Garner, 1; 471 US Tennessee v Court Ed 2d 1 did Ct 85 L 105 S modify "automatically” criminal law this state’s appre- respect use p Post, felon. 441. hend a pro- explains, Garner’s Justice Archer As regarding constitutionality of the nouncements private inapplicable to citi- use of such force are Regardless zens such as defendant. however, citizen, defendant’s status as applies argument prosecution’s that Garner change fleeing-felon directly rule *3 to this state’s premised upon that it is the notion fails because Supreme require a Court can the United States Clearly, the to criminalize certain conduct. state power as state criminal offense to define conduct a states, not with the individual with federal lies government Supreme or even the United States proscribe or While failure to Court. subject possibly to could state certain conduct liability act, for an indi- for failure to civil its reason, actions, state, if that for whatever vidual’s conduct, it not to criminalize such cannot chooses compelled do to so. Moreover, to see how can be we fail Garner "directly” applied event, since the Court only case that use that concluded posed fleeing apprehend no to a felon who force was "unreasonable” to the officer or others harm purposes In other Fourth Amendment. for Couch Boyle, words, Garner was a which made no civil case responsibility mention of the officer’s criminal only Thus, actions. his "unreasonable” United States is the Supreme authority Court without to require shooting nondanger- this state to make a crime, a ous felon has never even ex- pressed to an intent do so.1 however,
Unlike Justice we decline the Archer, opportunity change fleeing- the common-law respect liability rule felon conform with to criminal only Not Garner. does this Court (and Appeals) arguably therefore the Court of lack authority prospectively, given so, to do even Legislature’s adoption acquiescence of and temptation rule, we must resist the to do so. question law, whether the common which only allows the use of a citizen apprehend guilty, is in felon who fact out- has 440) (post, "utility” p lived its compelling public is a matter of demanding balancing
interest, (and legitimate interests which this Court there- Appeals) institutionally fore the Court of un- perform. question short, suited to it is a for the Legislature.
i long ago Campbell Justice observed in In re Lamphere, NW statement, post, p We are also troubled Justice Archer’s subject defendant is not a state actor and is not therefore Garner, imposed by "[pjolice the constitutional cers, restraints while offi hand, agents, hence, on directly the other are state subordi Id., viеw, p nate Gamer’s constitutional limitations.” 441. In our *4 officer, police apply if the even defendant were a Garner could not "directly” charge. require, as the for a basis homicide That would in effect, manslaughter, two different definitions both of murder and one for and for officers one the rest of us. Such a scheme could raise significant Const, question. XIV; 1963, a constitutional US Am Const 1, 2. art § 436 Mich by Boyle, general kept a in our statute-books we have while statute enumerated for all non- resorting law the common crimes, pur a always been has there ground of legislation the whole to have
pose in our defined, by possible, statute. as far as criminal law punishable our is whatever no crime There laws statutory provision.[2] a except virtue murder and homicide, precisely or more Criminal offense in statutory manslaughter, has been Penal 1846, state’s first when the Michigan since Stat, xxx, Rev title 1846 Mich was enacted. Code Thereof,” 153, ch and Punishment "Of Crimes murder: first-degree defined § perpetrated by means shall be All murder which wait, any kind of in or other рoison lying or deliberate, killing, wilful, or or premeditated and perpetration, in committed which shall be arson, robbery rape, or attempt perpetrate any murder of the first burglary, shall be deemed solitary punished by confine degree, and shall be life.[3] prison for at hard labor in state ment murder: second-degree 2 defined Section be deemed mur All other kinds of murder shall punished by degree, and shall be der of the second imprisonment life, prison any or in the state for Lambrecht, point was affirmed in re This look Court stated that can in which this "[w]e NW any punishable only We look this State. to the statute for crime juris principles and in our criminal the common law definitions but, penalty, provides criminal at prudence, the statute acts unless in this common law are not crimes State.” first-degree provides murder statute The current version wait, lying poison, killing, "[mjurder perpetrated is means that or other committed which wilful, deliberate, premeditated which or is arson, attempt perpetrate perpetration, crimi or robbery, breaking dеgree, the first or third sexual conduct in nal extortion, kind, kidnapping, dwelling, larceny entering by imprisonment degree, punished and shall be murder of the first MCL MSA 28.548. for life.” *5 419 v Couch by Opinion Boyle, J. trying in discretion of the court years, term of same.[4] manslaughter: to the crime of Section referred Every person who shall commit the crime punished imprisonment manslaughter, in shall be prison, years, not more than fifteen or or the state dollars, exceeding one thousand by fine not court.[5] both, at the discretion of the manslaugh- Obviously, the crimes of murder and not in these in the sense ter are that the elements of those defined statutes along any
offenses,
with
language
recognized defenses, are included in the
mean, however,
does not
of the statutes. That
wholly
they
Jackson
are left
undefined. As Justice
States,
in
342 US
stated Morissette v United
263;
(1952):
72 S Ct
267 NW construing public has offense a statute wherein general terms of the common in the been declared particular definition, the courts law, more without particu- generally for the refer to the common law Legis- constituting the оffense.” Where lar acts depart disposition from no lature "has shown definition, therefore it remains.” the common-law *6 added.)6 (Emphasis Id. Legislature intended to To the extent existing convey common- "satisfaction with” manslaughter and to law definitions of murder and adopt definitions, Morissette, and embrace those p supra, 263, it this Court is debatable whether change authority those definitions. still has the to accepted Legislature presumed to The then-existing is have "[a]ny private common-law rule that (and person peace-officer) [may arrest a a fortiori a provided fleeing they him, . felon] . . and if kill justifiable taken, he cannot otherwise p (empha Blackstone, Commentaries, . ...” 4 293 manslaughter, original).7 Thus, in murder and sis 6 Potter, 1, (1858), stated, People 5 it was See also v 5 Mich which person memory "Murder is where a of sound and discretion unlaw state, being, peace fully any creature in in the kills reasonable This, implied. prepense aforethought, express or with malice either definition, speaks It the common law is still retained in оur statute. deBned, already offense as one ascertained and and divides it into Utter, degrees (emphasis added); People . . . .” 185 (1921) ("While State, is defined in this NW the murder statute killing being specified of a human under circumstances made degree, in the first it also includes the common-law murder deBnition added.) (Emphasis . . . (3d ed), Boyce, p Law 1099: See also Perkins & Criminal Firmly England established in the common law of was fleeing
privilege to kill a felon if he could not otherwise be taken,42 private person privilege extended to the as well as to .... the officer felony fly "If a be committed and the felon from duty every justice, ... it is the man to use his best endeav- People v Couch Opinion by Boyle, longer arguably, are no common-law crimes in this statutory early state, but rather became crimes as longer no as and we are free redefine justifiable by holding what is not homicide that a privileged, citizen is "not prevent to use force to escape felon’s unless the arrest ing reasonably poses felon citizen believes physical a threat of to that citizen or serious harm p Post, others.” 440.8 authority modify We need not resolve our rule, however, common-law because we find presumption legislative adoption event that the years legislative by fifty inis this case affirmed acquiescence in this Court’s decision in Gonsler, NW 443, 446-447; approved we which the trial court’s instruction that private persons seeking "[b]oth officers prevent care to escape a felon’s must exercise reasonable prevent escape of the felon without doing personal only violence, and it is where kill- ing necessary escape, him is this *7 killing killing justiñed . is ... If a is not
justiñable,
manslaughter.”
it is either murder or
[Emphasisadded.]_
preventing
escape;
pursuit
ours for
an
if in
and
the felon be
killed,
overtaken,
where he cannot otherwise be
the homicide is
(1803).
East,
justifiable.” 1
Pleas of the
298
Crown
8
Stevenson,
acknowledge
opinion
People
We
this Court’s
v
416
383;
(1982), concluding generally
Mich
II Regardless the author- this Court has of whether change homicide, ity and make the law of something a been never before that has criminal crime in crime, to do so state, decline in this we nonetheless constitute, a "To declare what shall this case. punished, an exercise is how it shall be and sovereign power state, inherent and is of a of the government.” department legislative in the 611, 619; 42 Hanrahan, Mich NW particularly true here. is This "nondangerous” felony, or The definitions nondangerous felon, a felon and how such who is a quintessentially apprehended matters are weighing policy. They and the delicate involve quality particular balancing nature and interests, on intrusion on a citizen’s the felonious protection the felon’s hand, one the interest longevity There is an on the other. example, difference, in the for citizen’s obvious sanctity inter- home and his in the of his interest power just boat, as there est in his automobile setting to a fire between is a clear distinction although stealing bicycle, dwelling all $200 Presumably felony/property for this offenses. are grant penal the the for a "forcible” states reason, the codes of some through apprehend authority felon force if the arrest use of felony, forcible one state has defined and at least among felony glary.9 others, include, arson and bur- general Legislature no has evidenced Since property penalties "mere” for to reduce the intent drug major offenses, it matter, offenses, or, may Legislature not refine would that the well be fleeing-felon respect to the distinctions such supra, p Boyce, 1105. & Perkins *8 Peоple v Couch Boyle, saying that a rule, the line and would draw guilty10 person to flee who is in fact and chooses felony a risk to life from the scene of a assumes example, Legislature may decide limb. For penalties improper exercise of that the civil for an right deadly force, as well as the fact the that criminally to use peril at his and is citizen acts enough
responsible wrong, if are he is authority. to the misuse of such of a deterrent point may wiser, rule be is not that another or that of a felon’s Legislature there are not situations which the loss tragic, life rather that it is the but whether the com- that must determine "utility.” rule Stated mon-law has outlived its otherwise, it an is hard to conceive of issue more demanding public give-and-take debate and legislative process of of certain than whether citizens Michigan willing are to assume the risk that large
criminals should at rather remain subjected than be to the risk of harm at the hands question policy, of their victims. The clear subject whether to criminal officers or citizens should be killing nondanger-
liability for the Legislature, felon, ous is one for the not this Court.11_ Boyce, supra, pp Perkins & 1099-1100. according English In other words to the common law a
private person privileged merely was never to use stop flight seeking to warrant, of one he was to arrest without a [Emphasis origi- if that one was in fact innocent. nal.] Appeals recently As the California Court stated Gilmore, 914, 921, Rptr concluding Cal n 5 after rule, automatically fleeing-felon Gamer had modified that state’s governing [by "we have distilled from the common statute reference to the applied undisputed legal principles facts the law] controlling. thought which we . . . believe to If it is desirable to cases, change responsibility the statute for is the future Legislature.” Although Appeals opinion review of the Court of was Court, Supreme denied the California that court did direct that published reporter. App not be in the official 203 Cal 3d 612 *9 Mich Levin, J.
CONCLUSION part of the Court in the decision of affirm We Appeals change not that Garner did as it holds insofar respect to law with this statе’s criminal apprehend to the use felon. We concur Justice
therefore Archer’s opinion However, we that it so holds. to the extent Appeals to of the Court of the decision reverse People "adopt[] Couch, 176 standard,” a new (1989), App 254, 260; 439 with NW2d respect to that rule. J.,
Riley, C.J., Brickley, concurred Boyle, J. only in J., the result. concurred
Griffin,
reversal).
(concurring
agree
that
We
Levin,
L
Garner,
1;
1694; 85
471 US
105 S Ct
Tennessee v
modify
not
the criminal law
2d 1
did
Ed
this state.
persuaded
Court should de-
this
We are
judicial restraint,
to exercise
cline, as a matter of
modify
authority
the
have to
whatever
criminal
the
prosecutor.1
urged by the
Whether
law as
fleeing-felon
to situa-
rule should be confined
seeking
an
to make
arrest
the citizen
tions where
poses
reasonably
a threat
the felon
believes
question
physical
left to
harm is a
better
serious
the
Legislature.
thus
no need to reach
We
see
authority
question
has the
this Court
whether
fleeing-felon
modify rule._
high
apparent uneasiness with
court’s
We do not share
the lower
California
court’s discussion Gilmore.
opinion
this Court has
that whether or not
1The lead
also states
rule,
authority modify
fleeing-felon
See
it should
do so.
authority
ante, p
("Regardless
this Court has the
of whether
something
homicide,
that has
change
never before been
so
make criminal
law
state,
nonetheless decline to do
a crime in this
we
case”).
in this
People v Couch
Opinion by Levin, J.
suggestion
opinion
in the lead
this
might
authority
modify
Court
criminal
not have the
implicates
law
this Court’s decision in
Stevenson,
2 "year day” part We hold that and a rule is state; common and that hereby abrogated; law of this the the rule is abrogation not, not, of the rule should and will be given [Id., p retroactive effect. 386.] 3Id., p 390. This Court said: suggestion only by that crimes can be defined statute is taken, particularly light that, not well in of the fact in Michi-
gan,
murder is defined
the common law and not
statute.
[Id., p
Emphasis
original.]
391.
(see ante,
opinion
417-418),
pp
Like the lead
Stevenson relied on In
(1886).
Lamphere,
105;
Stevenson, pp
re
61 Mich
Griffin,
concurred
granted
leave to consider
We
Archer,
People Whitty,
rule of
the common-law
whether
(1980), permit
App 403;
to use
escape
arresting
reason-
citizen
felon’s
unless
poses
significant
ably
felon
believes
physical
or to
harm to the citizen
threat
serious
used,
In the event excessive force is
others.
prosecution.
subject
criminal
We
citizen
such
rule should have
would further hold that
application only.
prospective
*11
modify
or not
the common
The determination of whether
Legislature.
the
rule
well be one that
is better left to
law
Both
Legislature
this Court and the
have the constitutional
change
Assuming
power
. . .
that
this
common law.
the
that
Legislature
than the
should
determines
rather
Court
issue,
urges against
modification
this
Defendant
determine
the common
law rule.
I,
1963,
1,
Const,
art
10.§
US
art
Const
§
1963,
1,
Const,
XIV;
People
art
v
§
Am
Const
17. See
Steven
US
383, 395;
People Dempster,
son,
416 Mich
331 NW2d
700, 714-718;
i PROCEEDINGS PACTS AND 1:10 approximately at On October p.m., Couch, Jr., L. was in his office Archie defendant promptly car alarm. He he heard his Detroit when adjacent parking and walked to the left his office approached As he parked. his car was lot whеre standing near car, a man his he observed something, yelled lot who parking driveway car, the reaching his Upon then ran eastward. the front driver’s window defendant noticed Tucker, Jr., Alfonso was smashed and observed seat, front bend- in the middle of the car’s sitting forward, having dismantled ing apparently car’s stereo. his revolver
The defendant then reached he had in his waistband and for which which was car, Walking to the rear a license. gun reportedly in the air and defendant held " I go me so can said, 'Get of the car and with out ” Tucker then slid over police.’ call walked around door. The defendant passenger got door. Tucker of the car toward the same rear ” " man, don’t shoot.’ stating, 'Okay, out of the car " on 'Come saying, then recalled The defendant ” me, police.’ Tucker going I am to call defendant, defen- and the lunged toward the then *12 Mich Opinion Archer, which missed. apparently fired one shot dant run from the defendant. proceeded away Tucker to feet twenty thirty he approximately When was fired two more shоts which away, the defendant him. wounded fatally recep- directed his immediately
The defendant police. After arrived tionist to call statement, a full he was gave and defendant them under charged manslaughter arrested possession 28.561 of a MCL MSA and with under during felony firearm the commission 28.424(2). 750.227b; MSA MCL 17, 1986, the defendant was bound On November court, charged. over for trial as the trial he Al- arguing killing that quash, moved Tucker, Jr., homicide under justifiable fonso was allowing the common-law rule a citizen to use See apprehend force3 felon. Whitty, supra. denied, This motion was as was his later motion for reconsideration.
The then moved in limine that prosecutor with Garner’s jury be instructed accordance force, opposed Whitty’s restriction as motion, it. allowance of The trial court denied this reasoning early proceedings was too rule a jury on instruction. Appeals the Court of remanded the appeal, On case, instructing the trial court to rule on the request for a instruction on the prosecution’s jury Garner. On remand, held basis the trial cоurt that Garner did not to the instant facts and apply re- again prosecutor’s denied the instructional quest. prosecutor appealed, and the trial court throughout "deadly opinion References to the term force” this governed by following shall be definition "where the defendant’s natural, probable, consequence such that acts are foreseeable Pace, 522, 534; People App of said acts is death.” NW2d 216 v Couch Archer, J. stayed pending the trial be further ordered ruling the rule of review its appellate Whitty that of Garner should be cited in *13 not jurors. instructions reversed, 1989, 3, April Appeals the Court On Whitty modified the rule of should be holding that in accordance with Garner pri- that a provide makes an arrest use vate citizen who a felon from where only force citizen has a reasonable belief the felon harm to that poses physical a threat of serious further held citizen or to other citizens. Court that Garner so as to crimi- applied retroactively shooting.4 nalize instant We subsequently granted аppeal.5 leave to
ii Today upon we are called and deter- analyze powers mine the citizens to effect arrests this 28.875, MCL MSA ar- state. the citizens statute, provides: rests private person may
A make an arrest in the following situations:
(a) felony private per- For a committed in the presence. son’s
(b) person If the to be arrested has committed a felony although private person’s pres- not in the ence. (c) private person by peace If is summoned making
officer to assist
officer
an arrest.
MCL
Defendant
Couch was
authorized
28.875(a)
Tucker,
764.16(a); MSA
to arrest Alfonso
However,
Jr.
authorization
for use of
attempt
provided by
in an arrest
was not
4
(1989).
Couch,
People
App
439
354
Mich
NW2d
Couch,
People v
The common-law In Hale’s Pleas officers. actions Crown, it is stated: officers pursued that are these persons "[I]f suspicion thereof . . . shall just felony or officers, shall to these but yield themselves apprehended or fly they before are either resist
being
rеscue themselves
apprehended
shall
otherwise
fly,
they
cannot be
resist or
so
therein,
upon necessity slain
apprehended, and are
taken,
it is no
be otherwise
they
because
cannot
Hale,
supra
[Garner,
quoting
at
felony.”
(1736).]
Coronae 85
Historia Placitorum
Gonsler,
this Court
*14
(1930), applied this
443, 446-447;
On permitting ing rule the use the common-law People v Couch Archer, J. deadly force. The Court reasoned that the com- mon-law rule should be maintained because: police
The fact
remains
cannot be
everywhere they are needed at once. The occasion
private
arise where the
citizen is confronted
attempting
with the choice of
letting
a citizen’s arrest or
escape.
the felon
In order
to make the
arrest,
regrettable,
citizen’s
but sometimes
necessary,
deadly
to make use of
force. The com-
Michigan
stops
in
recognizes
mon law
this but still
granting
far short
a
citizen
license
suspected
to hunt
ting
and kill
commit-
down
those
felony.
deadly
justi-
The use of
force is not
person
fied if the
to be
is not in fact a
arrested
Additionally,
importantly,
felon.
and most
the use
necessary
force must be
either
to meet
prevent
escape.
deadly force or
the felon’s
Smith,
[Whitty at 416. See also
v
148 Mich
Hartfelder,
Werner v
16;
(1985);
App
NW2d 68
(1982);
Jenkins
App
NW2d
Starkey,
App 685;
the officer him does not failing apprehend resulting from do so. It is no deadly force to justify the use of sight suspect unfortunate who is in doubt escapes, late or are a when police arrive a little fact that the but the always does not little slower afoot police A officer killing suspect. justify unarmed, suspect nondangerous by shoot- seize an ing him dead. at [Id. 11.]
Gamer’s restriction constitutional the contin- question us to to arrest causes power presently rule of the common-law validity ued Michigan. citizen arrests governing First, presented: questions interrelated are Three Gamer controlling authority to auto- provide does modify Whitty’s common-law matically not, rule, and, persuasive authority if is it Gamer rule should today? Lastly, modifying in this case? applied modified rule be hi conclude that Garner’s limitation of Initially, we to arresters available privilege previously felons, upon a Fourth grounded apprehending highly perti- while analysis, seizure Amendment case, not control of this does nent to the resolution are found to citizen arrests its outcome unless *16 People v Couch by Opinion Archer, J. represent solely than state action rather action private persons. attributed We do not believe citizen arrests are state ac- holding Thus, tion. accordance with Appeals, pro- Court of we conclude that Garner only persuasive controlling authority vides for and not application in the instant case.
A prosecutor urges first this Court rule that performed police arrests, or whether a citizen officer, action, of themselves are state and that discussion or limitation of the means available to automatically arresters is subordinate Fourth and Fourteenth Amendments of the United support, prosecution States Constitution. argues wording statutes, of the arrest police7 764.15; MCL 764.16; MSA 28.874 for and MCL citizens, MSA 28.875 for is “not MCL MSA 28.874 provides: (1) officer, peace warrant, may pеrson A without a arrest a following situations: (a) misdemeanor, felony, When a or ordinance violation is peace presence. committed officer’s (b) person felony although When the has committed a not in presence peace officer. (c) felony peace When a in fact has been committed and the person officer has reasonable cause to believe that has committed it. (d) peace When the officer has reasonable cause to believe felony that a has been committed and reasonable cause to person believe that the has committed it. (e) peace positive When the officer has received information written, telegraphic, teletypic, telephonic, radio, or other peace authoritative source that another officer holds a warrant for the arrest. (f) peace positive When the officer has received information recognized police governmental broadcast from a or other radio station, teletype, may peace as afford the officer reasonable felony cause to believe that a has been committed and reason- person able cause to believe has committed it. (g) peace When the officer has reasonable cause to believe Archer, persuaded. essentially Simi- different.” areWe larly statutory which, in this authorization worded begin questionable view, is, in our case, parallels citizen one of the few between that exists. arrests police arrests, between
The manifest differences arrests, Garner, citizen the focus the focus of *17 grouping prohibit easily Whitty, from of us heading. Although, generalized one under terms prosecutor correctly notes are that arrests commencing purpose for the common of made prosecutions, of ef- the manner and means state convict, person escaped is has a condition that the of imposed by an violated prison, parole probation a frоm a has violated condition of condition of court, pardon a a a or has violated granted by the executive. (h) peace When officer has reasonable cause to believe was, accident, person time of an the driver of a that the at the operating in and was the vehicle vehicle involved the accident open general upon public place highway a or other vehicles, including designated public, in the state while in parking an for the of area (2) 625(1) of section or violation 1949, code, Michigan vehicle 300 of the Acts of Act No. Public Michigan Laws, being Compiled of a section 257.625 of the or 625(1) substantially corresponding local ordinance to section (2) of Act No. 300 of the Acts of 1949. Public (i) peace has to When the officer reasonable cause believe was, accident, person that the at the time of an the driver 1968, by as defined 74 of the Acts of snowmobile as Act No. Public amended, being 257.1501 to the Michi- sections 257.1518 of Laws, driving gan Compiled involved in accident аnd was intoxicating snowmobile while the influence of an under liquor; a controlled as defined 7104 of the substance section code, 1978, public health 368 of the Public Acts of as Act No. amended, being Michigan Compiled 333.7104 of the section Laws; intoxicating liquor or a combination of and a controlled substance. peace (j) When the officer has reasonable cause to believe was, accident, person the as defined Act No. 319 of time of an the driver of an at the 1975, as Public Acts of orv amended, Michigan being sections 257.1601 257.1626 of the Laws, Compiled driving in the accident and was involved intoxicating liquor; while under of an a the influence orv substance, in section of Act No. 368 controlled of the Public intoxicating liquor as defined amended; Acts as or a combination controlled substance. and a v Couch Archer, respect significantly fecting varies arrests police civilians. officers and police only example, are licensed officers
For intensely weapons, they carry trained are training respоnsibility for the use. The their departments, police by city so and state borne agents of the state. See become trained officers (On Rehearing), 420 Power Co Ross Consumers Officers are NW2d perform as tasks such as arrests instructed public duty,- not, as is the case with matter of private privilege. Thus, civilians, a matter of as private despite ends, are limited arresters common part” "standing] "playing in the shoes” and significant police Plainly, there are officers.9 unbridged gaps and obvious differences number of trained, skilled, the means used between sophisticated police un officers and those used inexperienced trained, For this rea civilians. private son, we conclude that arrests and catego simplistically defined or arrests cannot be per being A the same. rized as one and *18 arresting automati a felon cannot son’s manner cally be attributed the state. prosecutor
The also contends that because a by statute, it is citizen arrest is authorized discharged conduct law, [the] color” and thеre- "under automatically fore, to the state. In attributable support, prosecution United States v cites 7; 1152; L Price, 787, 794, n 86 S Ct 16 Ed 383 US (1966): 267 2d 1983,[10]
In
"under color” of law
under
cases
§
8
arrests,
Pearson,
making
right
28
L R
kill
Mich
957
See
The
(1930),
559;
(1919);
Dunning,
citing
98
177 NC
SE 530
Durham
State v
State,
567;
NE
199 Ind
159
145
v
9
Couch,
App
Mich
259.
ordinance,
statute,
who,
any
Every person
color of
under
by
Archer, J.
consistently
thing
has
been treated as the same
as
required
action”
"state
under the Fourteenth
Amendment.
To
contrary,
Supreme
in Flagg
Court
Bros,
Brooks,
149, 164;
1729;
Inc v
436 US
98 S Ct
(1978)
aby
party pursuant
to a
without
more,”11
"something
is not sufficient
justify
party
characterization
as a "state actor.”
regulation, custom,
usage,
any
Territory
or
State or
or the
Columbia, subjects,
subjected, any
District of
or causes to be
person
jurisdic-
citizen of the United States or other
within the
deprivation
any rights,
tion
privileges,
thereof to the
or
laws,
immunities secured
liable to the
the Constitution and
shall be
injured
law,
party
equity,
in an action at
suit proper proceeding
purposes
other
for redress. For the
of this
section, any
District of Columbia shall be considered to be a statute of the
Congress applicable exclusively
Act of
District of Columbia.
USC
[42
1983.]
"something
discharged
The
more”
to elevate
needed
an action
"under
Court in
Supreme
color” of law to state
was
action
described
Lugar
Co,
922, 939;
2744;
v Edmondson Oil
457 US
S102 Ct
(1982):
We do Michigan. Beyond chargeable of the State statutory framework, providing the state the basic idiosyncratic absolutely in the no involvement has application The state arrest statute. the citizen of responsibility individ- simply for the bear cannot per- private of number of an uncertain ual acts sons, given privilege any at has each of whom apprehension attempt sus- of a moment pected exist between distinctions felon. Patent those officers trained used means public general to effect of used members though police are arrests and citizen Even arrests. maintaining goal of the common out with carried public equate automatically peace, this does People v private See of the state. those efforts with (1978) App Holloway, 629; 267 NW2d purpose (the guard security hired for aсts peace keeping subordi- not to be was found of constitution). not believe We do nate "something provides the statute citizen’s arrest weight the State to of needed to "lend more” Lugar Oil v Edmondson See [individual] decisions.” 2744; 73 L Ed 922, 937, 939; 102 S Ct Co, 457 US 2d 482 __ Co, 3) Metropolitan Edison in Jackson v test is found The "nexus” 449; the Court where 42 L Ed 2d 95 S Ct 419 US sufficiently close or present is a where there that state action is
held entity’s challenged act symbiotic the state and nexus between fairly as an action treated deprivation the action so that itself; the state Bros, supra 4) Flagg at 157 and "joint is found action” test persons the state Price, supra where actions at acts. necessary them as state to characterize the level rise to upon are these tests which 1983 actions note first that the § We brought against traditionally state officials civil claims based involve constitutional of civil and private persons violations to redress or rights, e.g., principally Garner, involves supra. Because this case criminally liable for held should be a citizen of whether consideration the use of felon, stop find discussion we force to inappropriate. rights abridgement civil *20 Mich by Opinion Archer, J. Accordingly, we conclude that the instant case is by not controlled or subordinate to the Fourth and Fourteenth that Garner We Amendments. further conclude provide controlling authority not
does for the resolution of this case.
B agree Appeals, We do with the Court of how- provide persuasive ever, that Garner does author- ity. Generally, permitting the common-law rule deadly applies use of force to effectuate an arrest private persons seeking "[b]oth to prevent igan officers and escape Gillespie, a felon’s . . . .” 3A Mich- (2d ed), 1691(d), § Criminal &Law Procedure added.) p (Emphasis 231. See Gonsler at 446-447.
Because the common-law rule was the source of authority in this state for both and civilian deadly stop fleeing felons, use practical force to as a expressed
matter we believe Garner’s deadly by police limitations on the use of force applied officers should be to civilians as well. opinion correctly The lead contends that jurisdiction Court has no to amend statutes but authority change it has the to amend or purporting modify common law. We are not statutory permit- elements of the offense. The rule ting private citizens to use force fleeing escape homicide, felon’s is a defense to manslaughter rather than an element of either merely murder. We would the common amend by law, as the Court is authorized to do the Michi- gan Constitution.12 Legislature
It is true that
has authorized
private
arrests,
citizens to make
see MCL
statutory language
However,
MSA 28.875.
not
does
support
Legislature
the contention that
Const
1963,
art
§
art
§
1.
Couch
Archer, J.
citi-
use of
authorized
history is
Legislative
felon.
arresting zens
made
was
authorization
Such
on this issue.
silent
Gonsler, Whitty,
law,
statute.
See
case
supra.
the com-
why
reasons
practical
Providing some
present,
in the
applied
not be
rule should
mon-law
Court Garner
expressed:
many times
pointed out
It has been
light
understood
rule is best
common-law
all
virtually
a time when
it аrose at
fact
*21
"Though ef-
punishable by death.
were
felonies
of
protections and formalities
the
without
fected
conviction,
killing of a
orderly trial
an
greater
in no
fleeing
resulted
resisting or
felon
punish-
those authorized
consequences
than
was
the individual
felony
of which
ment of
13-14. Citations
suspected.”
at
charged or
[Gamer
415, citing
&
Whitty at
LaFave
omitted. See also
Scott,
Pearson,
The
56,
Law,
p
Criminal
§
arrests,
making
L R
right
kill in
28 Mich
Chermansky,
(1930);
Commonwealth
974-975
(1968).]
170;
Section unless: (iv) that: the actor believes (1) involved conduct the arrest is made the crime for which force; including deadly or threatened use of the use (2) person to be arrested risk that there is a substantial apprehension bodily if harm his cause death or serious will Proposed [ALA, Draft delayed. Official Model Penal Code: (1962), pp 56-57.] Archer, consequences unmodi- use of an continued deadly rule, or seri- force death fied common-law alleged utility injury, outweigh the rule’s ous far suspected especially in where the felon this case appear pose did not a serious threat harm pleading, "Okay, voluntarily man, retreat and did don’t shoot.” argument "police every- cannot be they Whitty once,” are needed at at no
where longer has the force it once did because Garner has since limited what officers can do even they promptly when felony. arrive at the scene of a App Coons, 735, 739; Appeals NW2d Court of rea- despite Garner, soned that the Court could "not give permission [a] defendant to use in a situation where it denied to a law would be having powers enforcement officer broader to effect added.) (Emphasis agree. an arrest.” We Accordingly, we would hold that citi- effecting pursuant zen an arrest to MCL privileged MSA 28.875 is not to use force to escape felon’s unless the arrest- ing reasonably poses citizen believes that the felon physical a threat of serious harm to that citizen or used, to others. In the event excessive force is subject prose- citizen arrester to criminal *22 injury cution commensurate with the caused. iv Upon the basis of the erroneous belief that Our citation these sections of the Model Penal Code should not adoption be deemed of them. We believe that left best Legislature. present, Michigan At no has statute which deals with the deadly Legislature use of provision, Michigan force to arrest. Until enacts such a guided by simply must be its case law. We find that Code achieves the fairest and most balanced result. the modification of the common-law rule in the Model Penal People v Couch Archer, J. actor” whose acts was a "state defendant Couch and Fourteenth to the Fourth were subordinate Amendments, that our Gar- prosecutor argues applied retroactively. decision should be ner-based that Garner’s prosecutor argues Alternatively, the common- modified automatically 1985 release Whitty. disagree with in We law rule articulated an would hold that such assertions and both application prospective should have amendment only.
Garner substantial, persuasive guid- provided Yet, fashioning in the of our new standard. ance Whitty. modify did not holding automatically its Whitty in this case The citizen arrester actors,” and, therefore, subject were not "state Garner. imposed by to the constitutional restraints officers, hand, agents, on the other are state Police to Garner’s consti- hence, directly subordinate tutional limitations. Whitty now,
Until the common-law rule of has 15, 1986, defendant remained intact. On October attempting Couch’s use of force in arrest Whitty. Tucker, Jr., Alfonso was consistent with de- believe that other conclusion would We process right of his due prive defendant of the for which he specific fair and notice conduct we criminally penalized.14 Nor can condone engage in what we consider to be or ourselves See judicial post forbidden action ex facto. Stevenson, 383, 395; 331 NW2d upon improbable finding was a state Even that defendant Gamer, ruling controlled the defen actor whose acts were dant would still prevail on of the fact that at the time here the basis courts, itself, Legislature shooting nor the neither Gamer process provided of the fact notice in accordance with due were, pursuant force rule arrests to the common-law civilian henceforth, prohibited Michigan. unquestionably the clear Absent today, actions on October this Court defendant’s statement proscribed, "probably” which at best be characterized as could upon unacceptable which to base a conviction. would be an foundation *23 Mich Archer, J. States, United
(1982), citing Marks v
188;
430 US
(1977), and Bouie v
990;
CONCLUSION are Couch’s actions conclude that defendant We standard under the common-law analyzed to be Whitty. we would Accordingly, articulated the decision of part, and reverse in part affirm Appeals. the Court of J., concurred Archer,
Cavanagh,