PUBLIC AUTHORITY: A Special Defense in Criminal Law


BY Adeyemi Oshunrinade

There are certain acts which if done by order of a superior or under the protection of public authority, are not considered crimes; if a police officer shoots and kills one holding a knife to his wife’s throat about to slaughter her; the office is not guilty of any crime if he acted reasonably and under public authority. Likewise, a soldier who killed an enemy combatant is not guilty of any crime; the killing is considered an act of war done under the protection of public authority and within the rules of war.

Also, one who carried out the execution of a defendant found guilty and sentenced to death, is not guilty of such killing, the execution is a court order and therefore, the executioner has acted under the protection of public authority. While public authority if reasonably used can make a defendant not guilty of the crime charged, unreasonable use of it will completely remove the privilege, such that one found to have abused its protection may be reasonably charged and convicted.

A police officer, who shoots and killed an unarmed offender who has signified his willingness to surrender by raising his arms, may have abused his authority and can be properly charged for the killing; even in the time of war, an enemy may not be killed needlessly after he has been disarmed and securely imprisoned. (See State v. Gut, 13 Minn. (Gil.Ed.) 315, 330 (1868)).

Only the one privileged to use such authority or his duly appointed deputy may carry out the sentence of death. (See 4 Bl. Comm. 179); Also, in exercising such authority, the privileged officer, may not substitute one method of execution for another. For example, if the court order and sentence is that the convicted offender be executed by hanging, the executioner cannot turn around and choose another method of execution such as, death via the electric chair. An executioner, who defies order of the court by electing another method of killing, abused his authority and privilege and therefore, would be liable for a homicide.

Public authority is a privilege conferred by law; however, a willful abuse of such authority will destroy the privilege; making the excessive use of authority a crime punishable by law. The law that conferred the authority may take it away based on abuse and misuse of such power by an officer of the state or a superior privileged to use the authority. For example, if a police officer shoots and killed an unarmed felon who poses no danger to him and evidence shows a more reasonable force could have been used to ensure the arrest, the officer would be guilty of a homicide though, he is authorized to shoot in such cases.

The privileged use of public authority, also applies when a military officer acts based on order of a superior or a person of higher rank in the position to give such order. If a military subordinate carried out an arrest based on the order of his superior, he is not guilty of any crime even though, the arrest turned out to be illegal; he has acted based on the order of a superior with the power to give such order and therefore excusable. “Except in a plain case of excess of authority, where at first blush it is apparent and palpable to the commonest understanding that the order is illegal.” (See McCall v. McDowell, 1 Abb. (U.S.) 212.

Normally, an officer who carried out the order of his military commander is exculpated in such cases or else, he may be found liable for disobeying the order of his superior, a violation of the military code. Whether an order is legal on its face or otherwise, there is a middle ground where the legality of the order, is determined by the circumstances involved of which it cannot be expected that the subordinate is informed or advised.” In such cases justice to the subordinate demands, and the necessities and efficiency of the public service require that the order of the superior should protect the inferior, leaving the responsibility to rest where it properly belongs, upon officer who gave the command.” (See McCall v. McDowell, supra).

The acts of a subordinate done in obedience to an unlawful order given by the superior are excused and without criminal sanction, “unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.” (See United States v. Calley, 483 F.2d 1401 (4th Cir. 1973). Note that an officer is privileged to shoot if necessary to arrest one who has committed a felony in his presence. (Stinnett v. Virginia, 55 F.2d 644 (4th Cir. 1932). However, an officer has no authority to shoot a fleeing misdemeanant who cannot be arrested; but “if after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.” (See Johnson v. State, 173 Tenn. 134, 114 S.W. 819 (1938)).

In essence, public authority is a recognized special defense in criminal law; while one to whom the power is conferred may use it without criminal liability, unreasonable or excessive use of it may lead to a violation and criminal charge. Also, only one with the privilege to use such power may do so or order an inferior officer to use the authority on his behalf. Nonetheless, a homicide is justifiable when committed by officers of the state and those acting on their behalf, in their aid and assistance. (See Model Penal Code, section 2.10 § 196).

Dr. Adeyemi Oshunrinade [E. JD] is an expert in general law, he is the author of ‘Wills Law and Contest’ (2011) and ‘Constitutional Law-First Amendment’ (2012); ‘Public Authority’ is an excerpt from his incoming book ‘Criminal Law-Homicide.’ Follow on twitter @san0670

Categories: Criminal Justice, Criminal Law, LAW

Tags: , , , , , , , , ,

4 replies

  1. Oh my gosh. Is this a blog for law students? I was enjoying it and then something clicked, it is so serious. Like one of the posts you would do in a Law PhD class for a grade! My blog is informal as are many of the blogs I frequent. This is different. Quite different!

    However, other than the case citations, I enjoyed the piece. Well written. 🙂


    • Thank you very much for your comments it is appreciated. Yes all the law articles on my blog are based on facts of the law and are designed for law students and interested members of the public who thirst for education in the law; the subject matters are carefully selected and based on research as well, coupled with my legal background and education.

      Sent from my iPhone


  2. This post is very interesting… I think law has to defend weak people from de powerful. Public authority has to do the same…
    (La entrada es muy interesante… Creo que la ley debe defender a los débiles de los poderosos. La autoridad pública debe hacer lo mismo…)


    • Javier,
      Thank you for taking the time to comment. This is exactly what public authority is designed to do and a way to give those entrusted with the duty of law enforcement and maintenance of peace and security, the power to carry out their services effectively without fear of litigation. In fact, it is fair to say that without public authority, we would have a lawless nation because then, people will act without fear of a reprisal.


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