Taming Self-Defense: Using Deadly Force to Prevent Escapes

The modern fleeing felon rule permits police officers to use deadly force when necessary to prevent the escape of a person who has committed a violent felony. To justify this rule, the Supreme Court has relied on self-defense and defense of others. This Article argues against the self-defense justification. Fleeing felons—even those suspected of violent crimes—are not imminent threats to others solely by virtue of their flight.

Stretching self-defense doctrine to justify the fleeing felon rule undermines critical limitations on private self-defense and has not produced an effective set of rules to limit police violence. This Article further argues that these difficulties with the modern fleeing felon rule reflect a wider theoretical problem. To cabin excessive police violence, recent scholarship has sought to incorporate limits from self-defense doctrine. This Article argues for a different theoretical approach that examines when states may authorize force against those who resist the most basic compliance with the rule of law.

This account recognizes that a state’s right to use force does not derive from individual self-defense, and is not coextensive with or analogous to the limitations on individual self-defense.