Bear, your response brings up a couple of questions. First, how does one define “minimal necessary force”? Who decides if the force employed was more than minimally necessary? Certain examples are obvious but what happens when the facts make things a little less clear? “Did you have to use a stun gun? Couldn’t you have just wrestled him down? You are much bigger”. The only real way to know what is minimally necessary is to gradually increase the force that is being employed until something works. This is unrealistic in violent encounters.
What is a “level of force”? Intensity? Something else? If the person being arrested can only match the force being used by the arrestor and vice versa no one would win.
I ask because those of us in law enforcement have been dealing with these questions for years. It is widely acknowledged (at least by those in the LE community) that terms like “minimal force necessary” and “levels of force” may sound nice have have little practical application. Yet, they still appear in polices and, I gather, in laws in some places.
As you stated it does vary from state to state but even if you can’t be charged with “resisting arrest” for resisting a citizen’s arrest with force that doesn’t necessarily mean you couldn’t be charged with assault and battery, for example, against the would-be arrester and due to the circumstances normal defenses such as self-defense might not be available
Sure, but I can still blow him away and put a knife in his hand so that, when the police arrive, I can say that I feared for my life. Heck, it’s my word against his. … Oh, wait, he’s dead. He doesn’t really have a “word”.
If the arrest is justified and allows for reasonable force to effect then there would be no unlawful contact or creation of the apprehension of unlawful contact that would satisfy the elements of assault and/or battery. There is also a fairly high likelihood that self-defense would be unavailable as a defense because of the equitable doctrine of “clean hands.” In this situation basically that would mean that one cannot commit a crime justifying a citizen’s arrest and then argue that they were an innocent victim of the assault/battery. The crime justifies the arrest and the required force to effect the arrest (no more of course).
To make a distinction we probably all learned back in grammar school: Maybe you can do that, but you may not do that. To do what you just described would be illegal, and would constitute a crime (manslaughter, or even some degree of murder). You might get away with it–sometimes people do commit crimes and escape the consequences for them. But then again, you might not get away with it–there might be some subtle piece of forensic evidence that you overlooked in staging your crime scene. Or an eyewitness you didn’t notice–maybe your next door neighbor saw and heard the whole thing, and will now testify against you. (Maybe he was even video-recording the whole thing on his smartphone.)
And of course even if you did “get away with it”, morally speaking you’d still be a murderer, and have that on your conscience for the rest of your life.
“Reasonable” as in “reasonable force” is for the judge and jury to decide. It is a word that has paid for many lawyers’ golf club memberships. You swings your weapon and you takes your chances.
it’s right up there with “what is the difference between art and pornography?”
I had a friend about 20 years ago in Arkansas, that was a pharmacist and owned his own pharmacy. A man entered his pharmacy in mid-day with a knife and ordered the pharmacist tech to give him narcotics and the cash in the register, which she did. As the perp was leaving the store and walking down the street, the police were called and my friend followed him out of the pharmacy with a handgun. He asked the perp to stop return the money and drugs. The perp continued walking and my friend shot him in the back, killing him.
My friend was arrested for second degree murder. Interestingly, my friend was also an attorney, so he represented himself at trial. He was ultimately convicted was released on bail while awaiting appeal. He lost his wife and kid in a divorce, lost his business, and ultimately killed himself after he lost his appeal, before he was to turn himself in.
I recall on the news many many years ago of a similar case in Edmonton Alberta. The pharmacist shot the thief in the back on the street outside the store. The thief was out on bail for having robbed the same pharmacy a few weeks before. Also, the guy was charged with murder but IIRC he was acquitted by a jury. However, that is a rarity in Canada. Unless you can show being in serious danger and self defence is obvious, shooting someone is going to result in charges, Shooting a thief in the back from a decent distance is usually fairly convincing evidence you were not in immediate danger.