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State v. Johnson11/6/1997
defendant shot at the tires of a car speeding out of a bar parking lot after its occupants had caused extensive property damage to the bar. Id. at 604. One of the bullets hit and killed a woman suntanning at a motel pool across the street. Id. Such circumstances dramatically illustrate the dangers of authorizing private citizens to use deadly force in situations where police officers would be restrained by principles of reasonableness.
{25} Additionally, in the recent case of Prayor v. State, 456 S.E.2d 664, 666 (Ga. Ct. App. 1995), the Court of Appeals of Georgia held that deadly force is limited to self-defense or situations in which it is necessary to prevent a forcible felony. The Ohio Court of Appeals in State v. Pecora, 622 N.E.2d 1142, 1144 (Ohio Ct. App. 1993), held that the use of deadly force was prohibited unless it is necessary to prevent escape and there is probable cause to believe the suspect poses a significant threat of death or physical injury to the arresting person or others. The Pecora court stressed that the rights of citizens are no greater than those of police officers. Id. In California, the use of deadly force by private citizens has been limited to crimes that were felonies at common law, such as nighttime burglaries of residences. People v. Martin, 214 Cal. Rptr. 873, 881 (Ct. App. 1985). And the Supreme Judicial Court of Massachusetts has adopted the Model Penal Code, Section 3.07, which imposes on private citizens the standards of force applicable to peace officers when making an arrest. Commonwealth v. Klein, 363 N.E.2d 1313, 1318-19 (Mass. 1977) (citing Model Penal Code 3.07 (Proposed Official Draft 1962)).
{26} Notwithstanding these authorities from other jurisdictions, Johnson argues that we should be persuaded by State v. Cooney, 463 S.E.2d 597, 598-99 (S.C. 1995), in which the Supreme Court of South Carolina held that the owners of a plumbing supply store were entitled to a jury instruction on justifiable homicide as a defense to murder charges. The store owners found their stolen property hidden near their business and waited for the burglar to return. Id. The store owners shot and killed the burglar in an attempt to apprehend him. Id. The trial Judge refused to give the requested jury instruction, citing Garner, 471 U.S. 1. Cooney, 463 S.E.2d at 598. The South Carolina Supreme Court reversed, finding Garner inapplicable to seizures by private persons which do not implicate constitutional principles of state action. Id. at 599-600.
{27} Although we agree that the current case is not based on the Fourth Amendment, we are unpersuaded by Defendant's reference to judicial decisions of South Carolina. We find the public policy informing the reasoning of the Supreme Court in Garner to be highly relevant to the current facts. Whether the individual pursuing an unarmed felon is a police officer or a person attempting to make a citizen's arrest, we adhere to the policy that " t is not better that all felony suspects die than that they escape." Garner, 471 U.S. at 11. Like the United States Supreme Court, we believe the apprehension of criminals to be a goal of the state, but we are "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. More importantly, we believe the New Mexico legislature is equally persuaded and has so indicated in the language of Section 30-2-7(C). Specifically, we refer to the requirement of Section 30-2-7(C), that a homicide by a private citizen like Aaron Johnson is justifiable only if "necessarily committed . . . by lawful ways and means," meaning that deadly force in the apprehension of suspected felons is justifiable only
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