Brief Fact Summary. The Defendant, Durham (Defendant) a deputy game warden, was convicted of assault and battery of man suspected of illegal fishing.
Synopsis of Rule of Law. An officer may use deadly force if necessary against any suspect physically resisting arrest, even if the subject of the arrest only constitutes a misdemeanor.
Rule 27.26(i) provides that if the court finds: (1) that the judgment was rendered without jurisdiction, or (2) that the sentence imposed was illegal or otherwise subject to collateral attack, or (3) that there was such denial or infringement of the constitutional rights of the prisoner as to render the judgment subject to collateral attack, the court shall vacate the judgment or resentence him or grant a new trial or correct the sentence.View Full Point of Law
Issue. Can an officer use deadly force against a suspect who is physically resisting arrest, even though the subject of the arrest is a misdemeanor?
Held. Yes. Reversed.
An officer may not use deadly force, or inflict great bodily harm, against a person suspected of a misdemeanor in order to accomplish an arrest if the suspect is merely fleeing.
If the misdemeanor suspect physically resists arrest, an officer need not retreat and may use necessary force to repel the resistance, including deadly force if absolutely necessary.
In the instant case, the suspect physically resisted arrested by attacking the Defendant in the head with an oar. Therefore, the Defendant was justified in using potentially deadly force to repel suspect’s resistance.
Discussion. Though the court maintains a higher threshold in the use of deadly force for a misdemeanor arrest, as opposed to suspected felony offenses, it still provides for deadly force as a last resort where the suspect actively resists arrest.