*1 v. ANOTHER AND SCHUMANN RICHARD McGINN. MICHAEL 2d 525. 240N. W. 19,1976 March No. Tschida, appellants. David R. W. Nord and James Ficher, Davies, City Attorney, Daniel L. Assist- R. Seott Attorney, *2 City respondent. ant for S. Chanak,
Nicholas Justice.* Schumann, (hereafter plaintiff), Plaintiff Richard minor brought mother, Peterson, ac- plaintiff this tort and his Leah M. against city (hereafter city) and Michael tion the of St. Paul McGinn, officer, police McGinn Paul as defendants. Officer St. (hereafter injured defendant) seriously plaintiff, then shot and years old, morning April 1971, latter 9, 15 on the while flight him which collided was in from automobile stolen evidence, parked Upon plaintiffs’ with a car. conclusion of jury city. trial court for defendant After a directed verdict finding was not trial and defendant negligent, judgment of that defendant. entered in favor was judgment appeal Plaintiffs from the and from the denial their remand for a motion for a new trial. reverse and new trial. We Viewing light most to defend- the evidence in favorable 1 ant,* facts to as follows: could find the relevant On morning question approximately a. at 8 m. defendant left Avenue, Paul, purchase home at 581 St. his Portland time, morning paper. duty Off at the he was dressed civilian weapon, a & .38- personal and Smith Wesson clothes carried his clearly Paul marked He St. revolver. drove caliber snub-nose car, author- squad he was which police department “take-home” duty. off ized to use while southerly Kent defendant, proceeding on trip,
On the return saw and Avenue Ashland Street, approached the intersection pursuant * by appointment Supreme Cburt Acting as Justice 2.724, subd. 6, 2, Minn. St. art. Minn. Const. 1 (1973). Young Hansen, 2d 392 See, Minn. 209 N. W. v. traveling Ave- Ashland wagon on west a 1965 Chevrolet station observed, ve- speed. defendant at an excessive rate of As nue an auto- with and collided Kent hicle made a left turn onto Street Immediately after of Kent. parked the east side mobile intersection, two crossing the accident, still while defendant was got passenger juveniles, side persons, apparently out something car, Chevrolet, defendant, yelled into the at looked squad stopped near inter- car ran. As defendant his then alighted section, person side of from driver’s another looking to the on Kent back ran south Chevrolet and without Holly down then east alley Avenues and Ashland and between turned, could alley. Although plaintiff’s defendant back was plaintiff approximately 5 feet 8 inches tall see that young weighed pounds. to be a Defendant him believed approximately years old. adult
Determining assistance, spot not to Officer on the radio jumped pursue out of plaintiff As he McGinn chose to on foot. squad shouted, “Stop, police.” As car, he chased defendant *3 warnings, finally plaintiff, repeatedly shouted defendant similar ignored calling out, “Stop plaintiff or I’ll shoot.” the warn- When warning ings run, fired into and continued to defendant shot leaning ground. faster, only the Plaintiff ran forward again yelled, “Stop position. crouched Defendant I’ll shoot.” warning produce results, When this failed to defendant deliber- shot, intending plaintiff ately fired to hit in the aimed and part body. the lower of his At defendant fired the second time running plaintiff, shot, he to 80 feet the was 60 behind down Although alley. complete stop, defendant did come to a ground aiming sighting feet on the and the had both was and striking plain- weapon at the time the was Instead shot fired. nape legs, plaintiff the the tiff in buttocks bullet struck in the neck, permanently crippling of the him. McGinn testified that he
Officer believed the have Chevrolet to been stolen and used his because he firearm believed that he was making felony arrest and that he could not effect an arrest using without such He firearm. based that conclusion on fol- lowing (1) police training, facts: From he learned that vehicles vintage popular brand and involved here are with car thieves; (2) occupants they of the Chevrolet ran when saw squad car, youthful commonly do; (3) his marked car thieves plate; (4) Chevrolet had no rear license the Chevrolet was manner; driven in a (5) reckless and the area in the inci- which high-crime dent occurred was a area. Plaintiff had stolen the sta- wagon Wisconsin, although tion that fact not known was the St. Paul incident, at the time of nor was vehicle listed supplied police on “hot sheet” officers. shooting,
After Officer McGinn radioed assistance. minute, Within a another officer was at the 6 to scene. Within minutes, squad 5 or 6 cars had arrived and some officers already plaintiff had rushed hospital. to the complaint, plaintiffs alleged their liability on defendant’s battery negligence. two and The trial court submitted theories — jury theory case to the negligence response alone. In special interrogatories, jury found that Officer McGinn negligent, was not negligent, that Richard Schumann negligence proximate Schumann’s was the cause of own his injury. Consequently, judgment the trial court ordered for de- fendant.
The issues appeal before us on (1) are: Did the trial court err framing instructing issues jury in terms of negligence battery? rather than (2) Did trial court err in instructing policeman’s as to the aof to use a making firearm in (3) arrest? Did the trial precisely, plaintiffs More pleaded argued that defendant had *4 separate committed two battery. intentional torts —both assault and In simplicity, opinion interest of though battery treats the case as alone was at issue. We need not decide whether the facts of this case fulfill the plaintiff’s elements of an damages assault as flow from the shooting actual any and not from might fear that he be shot. employer, directing Officer McGinn’s err in verdict
court city of Paul ? St. Negligence Instruction The alleged had com- complaint, plaintiffs that defendant their part: battery. complaint relevant stated in the tort of mitted unjusti- McGinn committed “That defendant battery upon plaintiff Richard Schumann fiable assault and firing pistol bullet to strike intentionally so as to his cause the of his neck.” Richard in the Schumann back liability During trial, be- the two alternative theories trial, plaintiffs beginning took came blurred. At a bat- position conduct constituted either that defendant’s trial, ap- negligent tort, during it the course of tery aor but negligent battery claiming had peared plaintiffs that a were occurred. solely negligence terms.
The trial court framed the issues part as He instructed the in relevant follows: case, test, gravamen or of this is whether “The real or defendant, negligent April McGinn, Michael Officer * * * 9, 1971.
“* * * [I]f you find that the officer failed to [*] # « [*] [*] act on reason- probable cause acted absent a reasonable belief that able deadly force, you may without then couldn’t effect the arrest he negligent, is, that the officer was breached his find duty apply his conduct. Recall that reasonable standards prove that he breached such stand- to establish or burden * * * plaintiff, Richard is on the Schumann. ard * * “* duty you Richard Schumann breached a If find that it, you may neg- find him as I have care defined to use reasonable negligence prove in this instance is ligent. his burden * * * the defendant. [*] [*] [*] [*] [*] negligent, equally parties you n the event find * * «* [I] *5 is, plaintiff percent, If the recover. defendant cannot per- percent negligent plaintiff more than 50 recover would * * ** centage plaintiff course, of claim. than his if is more Of nothing.” percent negligent plaintiff then is entitled to interrogatories jury special The to the were standard submitted negligence interrogatories.3 comparative jury
The trial failed court to instruct as the elements battery. argue of the tort on the Plaintiffs failure part court trial constituted reversible error.
Proposed proposed interrogatories instructions and submitted by plaintiffs’ explicitly trial to the court set counsel did forth liability, they two different theories did forth the set but battery substance of the elements of the tort substance interrogatories employ of law officers’ firearms. jury expressly have would asked the McGinn whether Officer probable had cause to believe that Richard had com- Schumann mitted and whether McGinn Officer used excessive effecting in jury deliberate, plain- After the arrest. retired to objected tiffs’ counsel to the court’s failure instruct on the bat- tery theory. argues given.
Defendant that the correct as instructions were of the * * questions as “Question “Answer: No. *, shooting find the interrogatories 1: Was set on facts forth (Yes April 9,1971? Defendant, * herein. or [*] * and the no) by making Michael jury’s answers were: McGinn, following negligent answers to “We, at the time “Question negligence 2: Was you such as so a direct cause of find injury? Plaintiff’s (Yes no) “Answer: or (cid:127) “Question Plaintiff, negligent Schumann, 3: Was Richard time at the shooting April 1971? (Yes no) “Answer: Yes. “Question negligence you 4: Was such so find direct cause injury? Plaintiff’s (Yes no) “Answer: Yes.
“Question [Comparative negligence question].” 5: by police of- contends, first, the excessive use of force He battery. Second, negligence in than rather sound ficer giving it improper, instruction was that even if the he claims the officer’s that all of the elements of error harmless instruction, negligence incorporated in the privilege defense were necessarily they negligent, finding McGinn not Officer so that privileged. shooting plaintiff to be found his the ex- support contentions. That find no for defendant’s We arresting law-enforcement cessive use of force *6 See, recognized. Daly sounding battery is v. states a in claim (D. 1967). Pedersen, ele- Supp. Minn. The essential 278 88 F. They set battery intent and contact. are the tort of are ments of Restatement, 2d, 18.4 forth in Torts battery negligently in The same distinction between injuries though perhaps explicitly, articulated, not as is flicted Ry. See, v. G. Co. Minn. 72 prior decisions. Ott N. 70 our negligent part (1897). the conduct on of N. 833 Nor is W. injured victim, though a of have been cause such conduct battery. See, Schreyer, injury, Lambrecht v. defense to a a Kleeber, 10 271, 152 (1915); v. Wis. Minn. N. Schulze W. 540, 103 (1960). 2d N. 2dW. contention that support for defendant’s
Neither do we find is true error. It improper constituted harmless instruction officer’s jury to law as trial instructed the that court firearm, force, circumstances to and in some use battery subject liability “(1) if to another for An actor is contact with intending offensive “(a) to cause harmful he acts apprehension person, imminent or an person other or a third contact, and of such a directly or person the other “(b) with the an contact offensive indirectly results. Subsec- stated in “(2) with the intention done An which is not act of- the other for a mere (l,a) actor liable not make the tion does although un-l person involves an act with the other’s contact fensive negligent oil inflicting and, therefore, would be it risk reasonable bodily harm.” I threatened if the risk
reckless however, carrying jury, duty. told the out Ms trial court negative McGinn’s privilege, applicable, Officer if would negligence. part jury He as follows: instructed and the briefly, a misdemeanor
“So summarize if tMs was misdemeanor, merely cannot the officer observed such case, and deadly under use force in the context law however, If, negligent he he as I have said a matter law. it, that cause, I defined probable had or reasonable belief as have felony, felony plaintiff committing he or had committed force, including deadly force, reasonably reasonable if he can use being he effect that absent used could not believes such arrest.” argues jury instructions,
Because of such defendant that a find- ing negligence part necessarily of no on the Officer McGinn probable implies found that had Officer McGinn plaintiff had committed and that cause believe that only by reasonably he could effect an arrest believed that shooting Thus, plaintiff. he contends the error was harmless and unnecessary. a new trial disagree previ- First, distinguish for two reasons. we our
We proposition ous decisions on relies for which defendant wrong legal theory may harmless error. instruction *7 Sell, 309, 222 N. Defendant’s Victor v. 301 Minn. reliance on W. (1974), There, plaintiff particularly misplaced. 2d sued theory trespass realty, on intentional tort. The trial the to negligence, trespass, intent, contributory instructed court interrogatories assumption risk, special and and submitted Though questions. jury the instruc- to on all of these we held the negligence assumption risk contributory to tions and the on erroneous, judgment we the defendant. be affirmed in favor of grounded narrowly the the trial Our decision was on fact that specific interrogatories court had and on instructed submitted legal theory trespass—in giving jury proper the addition to — interrogatories. bar, erroneous and In instructions case at proper hand, did not both the trial court submit on other only improper jury, but submitted issues. improper to the issues jury Victor, case, how the in as we did in not know this doWe interrogatories posing specific the real responded would have the case. issues (1919), Moorhead, 171 N. 142 Minn. W. v.
Olson There, distinguishable. also, similarly relies which defendant jury question defend- court did not submit trial assuming negligence. that, held and wanton We willful ant’s excluding issue, as that the error harmless court erred in ordinary negligence. jury A absolved defendant had negatives negligence obviously finding ordinary the exist- of no jury’s willful, wanton, reckless misconduct. ence case, however, negligence finding necessarily is not of no probable jury had found that defendant an indication grounds plaintiff for a and reasonable cause to necessary In to effect an arrest. addi- that a firearm was believe judge gave above, quoted trial tion the instructions instruction, stating: jury general negligence you, “Negligence, as I for failure to rea- will define is the use * * * sonable care. McGinn, you must “In the case of Officer Defendant test his against ordinary prudent police what the conduct would acting facts, general is, specific have with the done knowledge him, Defendant McGinn had available to you find the Defendant under the circumstances confronted morning April of McGinn on that 1971.” light instructions, such find the defendant could any negligent under all the circumstances it found had if greater having plaintiff than for his conduct observed com- basis jurors mitting were told defendant a misdemeanor. would only negligent they if found such an as a matter of law obser- be only vation to defendant’s basis his actions. why is a second the error in instructions cannot
There reason
455 framing in terms of the instruction considered harmless. In be imposed negligence the bur- battery, trial court rather than wrong The trial proof party. den of on the issue on negli- shooting unprivileged be jury would court told the that an gent. proving Officer He then instructed them that the burden negligence The net effect McGinn’s was on Richard Schumann. negativing privi- place burden of of such instructions was to lege upon plaintiffs.
Privilege, however,
tort
bat-
an affirmative defense to
tery,
proving
the defendant
the burden
thus
must bear
(4 ed.)
See, Prosser, Torts
the essential
defense.
elements of the
prove
26, p.
Specifically,
the defendant
burden
person
(1)
probable
defendant had
cause to believe
sought
committing a
to be
either committed or
arrested
felony,
reasonably
(2)
defendant
believed that
City
Reese v.
effected without the use of a firearm.
could
Seattle,
374,
(1972);
81
2d
Their
no
on the
of Officer McGinn
merely
jury
plaintiffs
mean that the
had failed to
believed
shooting
instructions,
prove
unprivileged.
can-
Under the
we
McGinn had met his
not infer that the
found that Officer
establishing
privilege.
burden of
jurisdictions
result,
contrary
having adopted
A few
reach a
the rule
lawfully.
Zeeb,
presumed
See,
that a
officer is
to act
Wall v.
(Comn.
(N.
1967);
Emmons,
W. 2d
D.
Modesett v.
App. 1927); Ky. 113, Tex. v. Nantz West Admr. 267 2d 101 S. W.
(1937). *9 negli- relating to instructions court’s that the trial
holdWe theory and the gence applicable the law the of so misdirected and for a new trial. require that we reverse remand as to case Privilege Scope the of a- To Firearm Use retried, we reach this case must be that have determined As we govern as to on retrial the officer’s of law should issue what the contend that the trial court firearm. Plaintiffs privilege to ause privilege. scope the law the officer’s overstated privileged jury an officer is the that court instructed trial probable to has if cause to an arrest use a firearm effect to felony rea- if he suspect committed that has the believe otherwise effected. sonably the cannot that arrest believes jury: the He told relating are as follows: law arrests and rules
“The arresting “(1) probable cause believe If the officer has person so committed a crime committed and that has been subject case Richard Schumann —the arrest —in arrest, that arresting may force to use reasonable effect is, gun force, deadly shot at can include which force officer, he, if rea- meant to strike offender offender deadly the arrest sonably without the use believes that apply conditions these three not be Notice that could effected. governing felonies, to all this case you I law and instruct violent and other not make a distinction between felonies does probable felonies, types that the officer must have but holds offender, regarding said, I and the and as must the offense cause being deadly force to believe that without cause have reasonable applied arrest could be effected.” jury as to existence
The trial court also instructed statutes, part are a of our criminal code which which certain to use force of the law officer’s determine liability. instructing determining purposes criminal these regarding arrest, other statutes trial court told jury:
“* * * But in duty connection X with the officer’s will read you might bearing, several I statutes that think have but some the fact that I necessarily read these statutes mean that does not plaintiff complied has has not with or the statutes apply words, you at all. In other must make that determination in that instance.” portions
He then following read to the of Minn. St. 629.33, 609.06, and 609.065: “If, 629.33: after defendant, notice of intention forcibly resist,
he shall flee or necessary the officer use all means to effect his arrest.” *10 609.06: upon
§ “Reasonable force be used or toward person the another of without his following consent when the circumstances exist or reasonably actor the believes to them exist: “ * * * (1) by public assisting When used officer or one him
“(a) effecting In a lawful arrest.” taking 609.065: “The § intentional the life of another is by not 609.06, except necessary authorized section when in the following cases:
[*] [*] [*] [*] [*] “(3) By public person officer, assisting him, or in effect- ing felony preventing a lawful arrest escape for a inor an of a person held therefor.” have opportunity
We not had the to rule of a context bat- tery case privilege on the law officer’s to use force urge or a firearm. above-quoted Plaintiffs us to hold the instruc- improper adopt privilege protects tions to rule that the liability a law officer tort from for the use of a firearm in mak- ing only felony, suspect an arrest if the which believed to committed, have involved or violence threat to human life. Re- instructions hand, urges approve
spondent, us the other turn privilege should not given, arguing the tort as dangerous- nature of nonviolent the violent or the felon. ness of long disagreed. See, have the courts issue is one on which many jurisdictions it is 26, p. In
Prosser, (4 ed.) 134. Torts by influenced, statutes. various controlled, least an at issue of first is one Mary 67. the issue Note, L. Rev. As See, &Wm. their rules and impression here, of the various discussion some history is in order. they urge adopt tous the rule characterized
Plaintiffs have by as adopted trial court “modern” rule and rule oversimpli- dichotomy, believe, That we the “traditional” rule. scope of complex long-term as to the rather debate fies use firearm. the officer’s century, early the rule law, 14th common at least until taken could that the an outlaw whose life was felon was effecting regard process he could arrest without to whether an that all the rule was be otherwise detained. The rationale See, McDonald, by Use Force punishable death. felonies were Q. Note, 435, 437; Arrest, Police L. Crim. Effect Lawful 583; 67, 68; Note, Mary L. Rev. L. Rev. 15 Va. &Wm. Arrest, Moreland, Some 39 Minn. L. Rev. Trends the Law of rule refined to few centuries common-law was Within test, include a “last resort” so that entitled fleeing felon unless other- take the life of could not concept probable effected. The cause the sus- wise be to believe *11 pect felony had committed a also became factor at about same time. stated rule Blackstone as follows: “* * * by may warrant Arrests without be executed officers * * * committed, felony dangerous actually case of or whereby wounding felony probable insue, he is like to suspicion felon; purpose for that is authorized and
459 * * * even to kill the * [*] 4 W. Blackstone, felon Commentaries 292. if cannot otherwise taken
That rule widespread found rather support the courts in this country During in the early 19th and 20th same centuries.6 period, however, adopted some American rule that an courts arresting justified ap- employing was not a firearm to prehend a fleeing felony felon unless the itself a violent were one.7 always distinction between those two rules has been some- blurred, many
what permitting as the rationale of courts in regard use of a felony firearm without nature of the has explicit implicit been assumption dangerous that a felon public. point articulately to the Holloway This made in v. Moser, 185, 187, 193 375, (1927): N. 136 E. C. S. 376
“The reason for the distinction felons [common-law] [between and security Ordinarily, per- is obvious. misdemeanants] endangered son property being by and is not a misdemeanant at large, safety security require while the society speedy punishment arrest and of a felon.” Institute, 1934 the American Law in its Restatement Torts,
Law
131, adopted
the so-called modern rule:
against
effecting
“The use of force
purpose
another for the
an arrest
likely
of the other means intended or
to cause death
privileged,
if
“(a)
the arrest is made for treason or for a
which nor-
mally
harm,
death
bodily
causes or threatens
serious
or which
breaking
entry
dwelling place,
involves
aof
6 See,
g.,
Murray,
726,
Murphy
(1925);
App.
v.
Cal.
e.
74
“(b) the believes actor otherwise be effected.” however, the Supplement, Law, 1948 of the
In its Restatement following substituting version rule, the that Institute discarded : the traditional rule another, purpose against the for “The use of force actor’s effecting other, by intended or privileged means arrest of the a privileged, if likely to is cause death charges the which
“(a) a warrant the arrest is made under felony, a treason or person therein with commission named a treason for warrant without a or if the arrest is made committed, and felony which has been ar- person if the
“(b) in warrant the other is named warrant, reasonably of- the actor believes rest is under a by the arrest made without the other if is fense was committed warrant, “(c) reasonably arrest cannot actor believes Law, Supp. be effected.” Restatement of otherwise Torts, § change reporter’s explained as fol- the reason for the
Colorado, Law, 1948 Kansas Restatement of the and Missouri.” p. Supp. 632. language stating
The in the 1948 used the modified rule Restatement, Supplement adopted 2d, was verbatim Torts 131, published Reporter’s in 1965. The the section § Comments to quote apparent approval Reporter’s with from Comments Supplement. Restatement, 2d, the 1948 Appendix Torts 131. above, As noted the Restatement is intended to what describe is, the law not what law be. Perusal of should the American cases decided since first Restatement leads us conclude that the Institute correct in was its determination that courts unanimously have almost adhered to the rule as down set Blackstone.8 only
The
adopt
recent case which we have found to
the rule
officer’s
to use
firearm turns
dangerous
seriousness of
propensities
or the
Hutto,
(E.
felon is
Supp.
1969).
Sauls v.
304 F.
124
D. La.
The
strikingly
facts
that case were
similar
at
to those of
case
17-year-old boy
A
fatally
bar.
shot and
wounded a
8 See,
g., Martyn
Donlin,
402, 198
(1964);
e.
City
v.
151
A.
Conn.
2d 700
(Fla.
Nelson,
App. 1966);
Funk,
of Miami v.
69
“Louisiana’s suspected shooting is steal- justified at a man who cer not in the apprehend him. A bullet back ing in order to an automobile Deadly escape fleeing penalty arrest. Louisiana’s endangered great only life itself is used when Supp. 132. bodily is threatened.” F. harm however, upon a grounded entirely, almost decision Louisiana statute.9 overwhelmingly
Although favored the com- the courts have commentators, reformers, police department rule, law mon-law legislatures increasingly administrators, to favor tend privilege. Ameri- more restrictive rule Code, promulgated in Penal Model can Law Institute’s following rule: would establish the *14 deadly justifiable this Section
“The of force is not under use unless: felony;
(i) and is for a (ii) effecting authorized to act person the arrest is assisting to be peace person a whom a or is believes peace officer; and act as a authorized to employed no (iii) creates the force the actor believes persons; injury to innocent risk of substantial (iv) that: the actor believes
9 (1950), statute, provides part: “A homi- 14:20 § That La. Rev. Stat. justifiable: is cide
who forcible and that such “(2) reasonably When felony action involving danger committed, believes that such is necessary for [*] [**] for >Je * an offense is purpose life its afs prevention.” of great preventing about bodily to be harm, a violent committed by one or
463 (1) the crime for which the arrest is made involved conduct
including deadly force; use or threatened use of (2) a person there is to be arrested substantial risk that bodily apprehen-
will cause death or serious harm his if 484, sion delayed.” 3.07(2) (b), 10 U. L. A. § adopted respects Statutes similar in some to that rule have been by legislatures Illinois, York, Georgia, of New Louisi- ana.10 adopted
While the statutes states a these indicate trend, larger “modern” it should be noted that a far number codifying See, Note, states have statutes common-law rule. Mary 67, Wm. & L. Rev. In years, spate recent appeared of law has review articles question, many legislative which advocate the enact- ment of the Model Penal Code.11 addition, large metropolitan number of law-enforcement
agencies personnel instruct their to follow a now rule similar to Locally, Hennepin the Model County that of Penal Code. Ramsey Department,12 County Depart- Sheriff’s Sheriff’s 10See, Law, (McKinney 1975); N. Y. Penal 35.30 § Ga. Code 26-902 (1972); 7-5, (Smith-Hurd 1972); Ill. Ann. Stat. §§ c. 7-9 La. Rev. Stat. (1950). § 14:20 11See, g., Note, 67; Tsimbinos, Mary e. 12 Wm. L. & Rev. The Justified Force, 3; McDonald, Deadly 4 Crim. L. Bull. Use Use Force L.Q. Arrest, 435; Comment, Crim. Police 31 La. L. Effect Lawful Note, see, 131; 1212; Note, but Rev. L. Rev. L. Rev. 293 Col. McGill (1970). Policy Hennepin County The Firearms Department, Sheriff’s discharge B, provides: Deputy may VII of Firearms. A Section “Use following conditions: firearm under the
felon, other “2. means have or to To accomplish recapture failed, provided an escapee arrest for [*] [**] who was under arrest for a that: [*] felony, [*] *(cid:127) or to deter an escape sought recapture “a. The crime which arrest or involved *15 including deadly conduct use or threatened use of force. person sought “b. There is substantial risk that the will cause death bodily apprehension delayed.” or serious harm if is his adopted the Highway have Patrol14 ment,13 Minnesota on Law Commission The rule.15 President’s more restrictive rule this also advocated has and Criminal Justice Enforcement Police, Report: The Task Force authorities. for law-enforcement Qffi- Department, of which (1967).16 Paul Police St. p. 189 The Regulation 591.1, County Department, Ramsey in its Sheriff’s “* ** * discharge may fire- Members personnel its as follows: advises following circumstances: under the arm means “2. To effect effecting the arrest or the arrest or [*] [*] prevent preventing ^ ‡ [*] escape, escape when has been every other ex- felony attempted to person or has hausted, has committed a who felony presence, felony policeman’s or when has in the commit a grounds to believe policeman reasonable and the has been committed felony; attempting person apprehend committed he is sought “a.) in- provided, for which the arrest is attack, reasonable or the officer has volved an actual threatened which injury.” bodily death serious cause to could result in or believe Highway Highway Patrol, Patrol § Minnesota 3-220.2of its Manual, as follows: its officers Officer instructs pre- Deadly used, resort, apprehend “a. a last force as ‘Dangerous dangerous who escape those felon. felons’ are vent the of a rape, murder, kidnapping, against person, commit felonies such as robbery, assault, felonious etc. nondangerous apprehend is deadly “b. The use of felon force justified. against larceny, forgery, property, Felonies as coun- such nondangerous.”
terfeiting, regarded being etc. are departments adopted poli In addition to local which have adopted by Police De cy, Francisco been San similar rules have (Patrol partment Manual, W Procedures [Janu 1—Firearms Officers Angeles Department (Shooting ary 1972]), Review Board the Los Police [May 1972]), Metro of Columbia Directives and the District 1/556 (General (b) Department politan Manual, 2.4:1 Police Order 901-1and 1,1971]). [December Report Deadly The Commission states: “1. should be re who, apprehension perpetrators to the in the course of their stricted deadly force, crime threatened the use of or if the officer there believes person sought risk whose arrest is will cause substantial apprehension delayed. bodily death serious harm if his The use *16 personnel however, instructed its member, a cer McGinn is rule.17 the common-law to Code rule urge adopt Penal Model us to
Plaintiffs jury re- on that rule require court the trial to instruct reasons several we believe decline to do so because trial. We (b) 3.07(2) Model adopt to the issue of whether judicial question. a legislative and not a Penal Code is has been Penal Code policy the Model First, embodied in proposal has widespread subject and heated debate. strong opposition. The nature strong equally support and evoked Penal Code the Model one’s view on reveals that the debate turning upon ideological matter, likely highly provision is to abe oppos- of the two The views philosophy of law enforcement. one’s Jerome Professors ing camps typified are the statements John Barker Mikell and Waite. rule, Mikell Professor
Speaking against out the common-law has stated: down, the ‘Why said, the man shot “It has should not be been * *’ ** May I away running an automobile?
man who is with ** killing him for killing Are we are him for *. ask what we try throw him we stealing If we catch him and the automobile? prohibited apprehension of misde- flatly in the firearms should he outweighs gravity of meanants, far of human life since the value a misdemeanor.” Regulation provides Police General 107 of the Paul Bureau of St. part: discharge firearm Bureau shall “B. No member of the of Police except: duties, performance of Police committed, “2. To effect attempted arrest, to commit a or to [*] [*] prevent [*] [*] felony [*] escape of a officer’s person presence, who has has reasonable or when a and the officer has been committed ground person attempting apprehend he is committed believe provided: felony, endanger be “a. Provided that the use firearm will endanger likely safety persons.” innocent every protection say around him. We he until cannot tried grand jury him, men of the and then he cannot be con- indict petit guilty proved victed until men of the have him be- yond doubt, that, and then have done all reasonable when we policeman what do do him we ? Put him before and have policeman give years shoot him? course him three Of not. We penitentiary. in a It cannot be then that we the officer to allow * * * automobile, fleeing kill him because stole Is it for Fleeing that we kill him? from is also a of- common-law * * punishable by light fense and *. penalty If are not we *17 killing stealing killing him for and automobile not him for fleeing, Quoted killing what are we him for?” in Michael & Wechsler, Administration, p. 82, Criminal Law and Its 3. note opposing rule, the Model Penal Code Professor Waite stated:. “I am only through truly power convinced that effective * **
arrest can satisfactorily be law enforced. [Effectiveness making requires merely pitting arrests more than the foot- * * * policemen against work suspected that of criminals. giving *“* the officer * I would authority make [*****] to utilize preclusion necessary from flight effective * * *. forcement “* * * [T]he is undeniable. danger [*****] to * * * socially necessary effective law en- pass “If 3.07(2) (b)] we say criminal, we [§ ‘You are you foolish. No you matter what you have done are foolish if sub- mit to arrest. The officer dare not shooting take the risk of at ** * you. you If him, can outrun him. you outrun If are faster you free, than he is you.’ are and God entirely bless I feel unwill- ing give that benediction to the modern criminal.” Model Code, Penal (1958), Tent. Draft No. 8 3.07, p. Comments on § This court position is not in a conflicting to resolve the is passages quoted It ideologies represented above. in the two legislative tradi- deterrent effect forum policies may tional rule and law-enforcement be evaluated fully The issues and this state determined. debated sociological and are more moral which the decision turns court, they legislature, legal. The than are proper Spanel View As v. Mounds decision maker. we said 279, 292, 795, 803 118 N. School Dist. No. 264 Minn. W. 2d (1962): duty right modify rules
“While court has readily archaic, they of the common after have become we law flexibility legislative process concede that —which judiciary approach more denied the latter avenue of —makes desirable.”
Second, very provision, im- the Model Penal as its name Code plies, proposed justifiable ais It is to define statute. intended justifiable-homicide power adopt homicide. We have no stat- Defining legislative prerogative is a in Minn. ute. crimes legislature adopted justifiable- St. 609.065 our has its own statute, homicide one that embodies common-law view privilege to law officer’s use a firearm. could, course, adopt Penal
We the substance of Model alleged applied involving Code rule to be in tort actions assaults *18 Though legislature by police and batteries officer. has legitimate defenses, authority to define we crimes and retain See, authority defenses. common-law to define torts and their supra. If were we Spanel v. School Dist. No. Mounds View however, authority case, in this that exercise emergency would conditions contemplating force under use of by and crimi- the civil conflicting conduct standards held to be by a situ- engendered be such which would The confusion nal law. inequitable cannot results. We only produce unfair and ation can scope of judicial policies on legislative differing have creating Consequently, from desist we privilege. the officer’s Thus, technically are to fol- while bound such a we situation. recog- 609.065, by St. we Minn. St. as limited Minn. 609.06 low legislative we must policy which we feel nize in them a toward See, defining present Pros- liability in the situation. defer in tort (4 2, p. ser, ed.) Torts § adopt Penal foregoing the Model
For the reasons we decline to though that rule, Code there is to recommend it. believe much We thorough study use of there a need for issue of the fire- officers, may by so a reasoned choice arms law-enforcement competing be made rules. also believe we between We proper body are not the for the task. read Minn. 609.065 of the common-
We St. codification as Although language law rule. its is not identical to that of the Re- statement, “necessary” its is similar. word in substance practical equivalent 609.065 actor phrase is the “the rea- sonably believes that arrest cannot otherwise be effected” in language rule. “lawful arrest” of our Restatement requiring probable statute is to read as cause instances substantially there where is no arrest warrant. This equivalent language of the “reasonable belief” of the Restate- ment.
Conforming legislative relating policy to the to the use of enforcement, law which is enunciated in Minn. 609.06 St. limited 609.065, Minn. St. we hold that in a tort action based battery by a officer, law-enforcement of the offi- cer’s to use a upon firearm rests following rules: (1) probable Where officer has per- cause believe that a son has committing committed or is felony, may use reason- upon able force person toward that effecting a lawful ar- rest; and
(2) Reasonable force include the discharge intentional of a firearm person or toward only if the officer rea- *19 sonably he could that, believes use of firearm not absent such effect the arrest.18 case, rules, together
On the it is with retrial of this these appropriate judge may nec- such the trial consider definitions as essary the jury, to court should instruct. assist trial City Paul
Dismissal St. directing argue Finally, plaintiffs erred in that the trial court city complaint a verdict Paul. Plaintiffs’ favor of St. alleged city negligent failing properly to train that the was Finding to McGinn in use firearms. no evidence Officer negligent training theory, create a fact on the issue for the city’s granted ver- trial court motion for directed defendant plaintiffs’ propriety case. deci- dict at close of of that appeal. questioned sion is sought point proceedings, plaintiffs
At that in the to amend allege Procedure, complaint 15, their under Rule of Civil Rules city vicariously by was torts committed Officer liable for employment. The trial court denied McGinn in of his argue lia- vicarious the motion. Plaintiffs here that the issue of bility pleadings by was tried consent and that amendment However, mandatory Rule 15.02. include under that issue was the issue the trial court has determine whether discretion to Wright Miller, by Federal Practice tried consent. See 6 & language Civil, 1493, 469, interpreting Procedure, identical p. § pertinent offered is Federal evidence in the rule. Where the may prop- already pleadings, the trial court stated in the an issue litigated consent. Hohen- erly that no new issue was find 1 8 generally agreed a misdemeanor does not that an arrest for it flight though the criminal is in justify even a firearm the use of (4 ed.) Prosser, apprehend way Torts possible him. no other there Comment, 131, 134, 5; 135, Rev. p. 31 La. L. and cases cited in note firearm, right to use a 11. The of an in note and cases cited appropriate circumstances, others, in or in defense of self-defense 132; see, Torts Comment, Prosser, L. Rev. here. 31 La. is not an issue (4 ed.) § 26. *20 Goergen, 514, 749, 512, 176
stein v. 287 Minn. N. 2d W. concerning (1970). Here, on evidence whether defendant was duty acting scope employment and within the his when shot plaintiff relevant to the defense and does not was necessarily liability indicate the new issue of vicarious was by tried consent. find that the trial court We did not abuse its respect. discretion in this regardless
Nevertheless, liability vicarious of whether the by provides consent, was issue tried Rule 15.01 leave to given pleadings freely justice requires." amend “shall be when so apparently justice required The trial court did conclude that in- city liability theory. clusion of the as a on a vicarious defendant city plaintiffs brought It informed into could be back the case if Officer McGinn found liable. were procedure, bringing city
This method the conclu in at outset, sion of the at trial than to rather was selected avoid protect conflict-of-interest to situation. order its own in terests, city necessary would found it have to characterize unprivileged Officer conduct an McGinn’s as unlawful and bat by tery committed him while outside the duties as his city attorney Yet represented officer. defend both pursuant interruption ants Minn. 471.44. St. While of the trial separate might important obtain counsel have been con denying sideration in complaint, leave to amend the that con important upon sideration parties will not be remand because commencing will Thus, city be a new trial. Mc Officer greater Ginn will have no conflict of interest than other code principal agent. fendants related as underlying assumption selecting trial court in procedure appears to have been that the doctrine of collateral estoppel operate preclude city attacking would from finding that Officer Otherwise, McGinn was liable. the issue of liability Officer again McGinn’s would be tried have to all over joined party the city liability. after on vicarious But estoppel operate the doctrine of collateral as a bar would McGinn. privity with Officer city party were unless Judgments, S., Judgments, 628; 2d, 49 C. J. 46 Am. Jur. § Margo-Kraft apply. concept privity is difficult 278, 274, Minn. Distributors, Minneapolis Inc. Gas Co. v. repre city’s (1972). interests were
N. Unless W. 2d Mc McGinn, city participated in and controlled sented privity self-interest, no would there Ginn’s defense for its own Manifestly here, where estoppel. purposes of for the collateral adverse, no city McGinn are the interests of and Officer underlying Accordingly, assumption privity exist. would procedure trial court’s is erroneous. circumstances, plaintiffs remand renew if the
Under these allege complaint lia- their motion to amend their vicarious bility against *21 city, is the should the we think it clear that motion granted. be
Conclusion unduly trial defend- Plaintiffs’ claim that the court favored argumentative gave charge support jury ant an finds in no the record. improperly trial framed the hold that because the court
We battery, negligence in this case in of rather issues terms than the case trial. must be remanded for new for a trial.
Reversed remanded new original opinion January 2, case The in this is filed place. peti- opinion is in its withdrawn and this substituted rehearing tion for is denied.
Sheran, (concurring specially). Chief Justice disposition it is I of case because based concur with law existing I it to believe law I understand be. on the of Mr. Otis and Justice be modified in line with views should of- Rogosheske, the law-enforcement Mr. think that Justice but given to legislature opportunity be should first ficials and likely me, change. course, will more to be it seems make This police in assure that the officer who acts stress situation will exposed personal liability others, be what not after might event, judgment. an error in consider be Otis, (concurring dissenting part part). in Justice in agree plaintiff trial, I that entitled to a new dissent from but part majority opinion rejects that of which tort cases 3.07(2) (b) Code, 484, adopted of Model Penal 10 U.L.A. Institute, doing the American Law if in so it is the intention approve deadly effecting the court to the use force any person suspected committing felony. arrest of majority defines force reasonable as follows: may discharge force “Reasonable include the intentional person only a firearm or toward that if reason- the officer ably believes absent such use of firearm he ef- could not fect the arrest.”
I deadly force, would add this rule the limitation that killing fleeing felon, may the intentional of a used unless arresting probable may officer has cause to the felon believe endanger safety people apprehended. lives and of other if not deadly effecting
Unless we use thus limit the force in an felony, upon retrial, arrest for a in the instant case court justified instructing jury will be that a stealing 15-year-old suspected only shoot to kill a child automobile.
Under the I circumstances would as a matter hold of law deadly against if finds the defendant used *22 plaintiff, damages. must find defendant for liable
Rogosheske, dissenting (concurring part in Justice in part). trial, agree plaintiff join my
I that to a new but is entitled dissenting part majority opinion Otis in from that brother virtually unlimited a officer’s which leaves ma- fleeing feony suspect.1 The apprehend deadly use force to may of- deadly used whenever jority force concludes that he could reasonably such force that absent ficer believes urging join that we felony suspect. in I effect the arrest of the felony suspect effecting adopt arrest of a in rule arresting deadly officer believes used unless the not be the use made involved the offense for which the arrest is to be grounds deadly force, or or he has reasonable threatened use of safety may endanger felony suspect the lives and to believe Restatement, delayed. See, apprehension persons his is of other if 181; Torts, Code, 3.07(2), L. A. 484. Model Penal 10 U. § § being suspect is an officer believes the crime which When deadly force, arrested included the or threatened or use use of suspect pur- reasonably is when the officer believes suing persons may endanger safety of other if his the lives and delayed, is not is there no the officer can be doubt deadly only privileged prevent duty force to but has a to use escape fleeing felony suspect. equally It that an settled self-defense, force, officer’s use of such in is never other than justified privileged suspect. the arrest of misdemeanor Prosser, (4 ed.) See, 26, p. notes, 5 The Torts and 6. presented difficult case of the offi- issue effecting deadly privilege to use force in the arrest of cer’s felony suspect apprehension immediate is not whose essential majority indicates, public safety. opinion there are two As conflicting interests at stake in these circumstances. first escape preventing sus- is that of state in deterring maintaining pect, escape attempts, and in future power police. that of the the effective arrest second is felony suspect orderly impartial in his own life and in an adjudication guilt his I a sufficient fac- or innocence. believe
1“Deadly legal force” a term of me art means to force used purpose causing, creates a sub officer for which he knows injury. causing, bodily stantial risk of death or serious *23 con- these presented this court to balance is to enable tual basis duty flicting interests, and that it is our to do so. very deadly apprehend force to that the use of
It is doubtful nonthreatening, fleeing felony suspect nondangerous, neces- is Minne- sary enforcement of the criminal law in to the effective County Hennepin by majority, As so well stated sota. Ramsey County Department, Department, Sheriff’s Sheriff’s waiting legisla- Patrol, Highway Minnesota without and the voluntarily guidance, not tive have all ordered their officers against fleeing deadly felony suspects unless use force the crime dangerous sought felony recapture for which the arrest or is is put local jeopardy.2 If these human life been in where had charged agencies who are with the enforcement criminal necessary they and make the can enforce law law believe against nondangerous deadly the use of arrests without felons, doubting then there is a basis for that the use substantial power to the such force is essential of other agencies metropolitan either in or rural Minnesota. power
In conflict with this uncertain need for a lethal arrest society, public certain conviction of our in is the embodied our rights, lightly policy life not fundamental that human is be felony Minnesota, heinous, There is however forfeited. no states, 609.095, In punishable Minn. 609.10. death. other St. may process capital punishment only decreed after due of law felony suspect.3 afforded the I believe the best has been society that a man’s ordered demands life interest spot by police justi- without substantial be taken on justification my view, fication. no such exists the case of fleeing suspect only to have committed who believed against poses property to the a crime and who no risk lives 2 The Law President’s Commission on Enforcement Criminal Jus Task rule for law-enforcement officers. tice has advocated a similar (1967). Report: Police, p. Force 1967,moreover, June Since no one the United States has been exe offense. cuted for a criminal
safety except escape apprehension. of others his from immediate meeting As Professor at the 1958 the Ameri- Wechsler stated Proceedings (A. [1958], p. 285): can Law Institute L. I.
“* * * preservation of life has such moral and ethical [T]he *24 standing in society, our culture and sacrifice the deliberate merely of life protection ought property for the of not to be sanc- by tioned law.” permanent paralysis 15-year-old boy
The caught of a who was with a stolen and police car the distressed reaction of defendant following shooting officer emphasizes nothing as else can tragedy any of other view. majority opinion The acknowledges that the Model Penal Code has “much to adopt recommend it” but declines to that rule be- presents “legislative cause the judicial issue a ques- and not a agree tion.” I cannot responsibility easily that our can be so abro- gated. Although legislature charged defining is with crimes defenses, and it traditionally is historically duty of courts modify to liability and refine See, Spanel for torts. v. Mounds 621, View School Dist. No. 264 Minn. 118 N. 2d 795 W. (1962). As this a impression Minnesota, is case of first we are asked to define police of a officer’s a use against nondangerous firearm felony suspect a and thus neces- sarily to determine the liability resulting issue of civil injury. for majority persuasively
The legisla- asserts that a there exists policy tive to which this court defining should defer tort lia- bility in 609.065(3) the instant provides case. Minn. St. that an by police intentional homicide a officer is not a crime when nec- essary felony to effect suspect. the lawful of a Prosser us, however, regarded warns that “the criminal law must be very analogy a (4 Prosser, unreliable law of torts.” Torts ed.) 2, p. Here, warning apt § because criminal this distinguishes killing statute between and misde- suspects, policy when meanor sound dictates that the tort law dangerous killing distinguish non- between
should Surely police not dangerous suspects. officer should a criminal dangerous nondangerous imprisoned ibe if mistakes However, against felony suspect the former. his firearm and uses employer instructions, specific his unless he is in violation committed ought responsibility for mistakes bear financial Justice, See, duty. A. A.B. for Criminal in the line of Standards 1973) Draft, 5.5.4 (Approved The Police Function Urban declares, follow, majority way, it does not as the in this Viewed urged contemplating police the use under the rule conflicting emergency conditions would be held force under A of- the civil and criminal law. conduct standards of deadly against non- and uses makes a mistake ficer who committing unequivocally dangerous that he felon would know state, out wrong. legislature the courts of civil job emergency circum- in these his awareness of difficult way can that jail mistake, but in no stances, him for his will not wrong. adoption immunity granting civil justify for a and unfair- in confusion Restatement rule would result *25 uncertainty. Rather, hopefully, it would lead all and ness and most, some, if not well- police in Minnesota do what officers already experienced police practice, officers which trained proper deadly use is not a the rule that the is to follow nondangerous, nonthreatening procedure for felons. urged applied prospective- adoption should be rule pre- the then I ly. in case acted under Defendant Department. vailing Police It would be Paul rules St. past manifestly apply rule to his actions unfair new then] conflicting department police rule. governed Justice, A. The Urban Police Func-I B. A. for Criminal Standards 1973) Draft, 5.5, provides: strengthen “In order thel (Approved tion improper police activities, munici-l remedy for of the tort effectiveness exists, repealed immunity, it pal still should be tort where munici-f fully palities officers who arel liable for the actions of should municipal employees.”! employment acting of their within Mr. Justice opinion agrees with Otis Mr. Justice Rogosheske. dissenting in part
MacLaughlin, (concurring Justice part). Rogosheske. opinion Mr. Justice in the
I concur dissenting part). part and (concurring Yetka, Justice Rogosheske. opinion Mr. Justice I concur in the notes lows: which, have without “Several cases been decided since ** citing contrary *. 131 are to it: §
Notes
[*]
[*]
[*]
[*]
[*] in has cited 131 or which is “No case been found which has § 1927, together upon with the accord with it. The dicta relied in analogy concerning prevent kill to rule felony, outweighed by are commission now recent decisions directly by highest point in two federal courts and courts in Kentucky Virginia. strong addition a and West dictum contrary in the recent Tennessee case is to the dictum earlier Tennessee case which the relied in 1926. Institute originally present Reporter “The worded believes change necessary is desirable rule of law but that stated existing in a a situation This is not Restatement of authorities. actually Every split authority. there which case which question agrees original English common decides original law still com- In addition the law. wide California, given peace mon law rule is statute officers