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State v. Johnson11/6/1997
ts this subsection to mean that a citizen attempting an arrest may use that amount of force reasonably believed necessary to apprehend the felon. Thus, under this analysis, a citizen may use deadly force and even kill a suspected felon to prevent him from fleeing, regardless of whether the suspect is armed or considered dangerous, or whether the arresting citizen is placed in fear of bodily harm. Indeed, this interpretation of Section 30-2-7(C) would allow a citizen to use deadly force no matter how passive or nonviolent the suspected felony might be (e.g., embezzlement, forgery, tax or welfare fraud), and regardless of other external circumstances like time and place (e.g., populated area when people are out and about). Simply put, Defendant would be guided by one measure only: any means necessary to prevent the suspect from fleeing.
{6} To support his interpretation of the statute, Johnson argues that case law in New Mexico applies the justifiable homicide defense to the apprehension of all fleeing felons. Relying on Alaniz v. Funk, 69 N.M. 164, 167, 364 P.2d 1033, 1034-35 (1961), Defendant claims that a private citizen or a police officer may use deadly force to stop a fleeing felon regardless of whether the felony is considered serious or not.
{7} Alaniz was a wrongful death action against an acting deputy sheriff who attempted to prevent the escape of a man accused of having stolen rifles. The deputy fired shots at the getaway vehicle, killing the driver of the car. . Despite the nonviolent nature of the crime, and the absence of a concrete threat to the officer's safety, the court found the deputy's use of force to be reasonable as a matter of law under statutory language similar to that at hand, which made homicide justifiable " hen necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed[.]'" (quoting NMSA 1953, 40-24-13). However, the facts in Alaniz did not involve a private citizen's use of deadly force. . The holding in Alaniz applies only to the use of deadly force by a law enforcement officer and, therefore, is not controlling in the current case.
{8} Moreover, Alaniz today would be limited by the holding of the United States Supreme Court in Tennessee v. Garner, 471 U.S. 1 (1985). Garner involved a lawsuit filed under 42 U.S.C. 1983 by the family of an unarmed fleeing house burglar, who was killed by a police officer attempting to stop him. Garner, 471 U.S. at 3-4. Finding the killing of an unarmed fleeing suspect unreasonable under the Fourth Amendment, the Court stated that "it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out." Id. at 8. The Garner Court emphasized that the use of deadly force under such circumstances "frustrates the interest of the individual, and of society, in judicial determination of guilt and punishment." Id. at 9. The Court observed that although the apprehension of criminals was a goal of the state, the Court was "not convinced that the use of deadly force is a sufficiently productive means of accomplishing [that goal] to justify the killing of nonviolent suspects." Id. at 10. Thus, the Court required that officers have probable cause to believe that they or others are threatened with serious harm before the use of deadly force could be constitutionally reasonable under the Fourth Amendment.
{9} In Garner, as in the current case, the defendants argued that the common-law rule "allowed the use of whatever force was necessary to effect the arrest of a fleeing felon." Id. at 12. The Court rejected that argument, observing that, historically, many crimes that are now felonies were only misdemeanors, and that in the past most fe
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