BY ADEYEMI OSHUNRINADE
August 23, 2014
The action this week of Dan Page, a Missouri Police officer did not help public opinion about law enforcement. Video of him pushing back Don Lemon, a CNN reporter and other protesters in Ferguson, made some say his action is reminiscent of the power drunk attitude of the police force. The investigation into his action, led to a video of him expressing his disgust for the Supreme Court, Muslims, his past and perhaps his future as “a killer.”
If you ever lived in a big city and once or twice pulled over by the police, your opinion of cops might depend on whether you feel wronged by the way or manner of your encounter with the officer in question. Many believe police officers are just too powerful, and if asked, some might say cops do abuse their authority. In fact, some are of the opinion that officers see themselves as the judge and jury. If you watched the movie Training Day, you’ll remember a part in the ending scene where Denzel Washington said “I’m the police king Kong, ain’t got shit on me.”
To some extent, this is the public opinion of cops especially in places like New York, Chicago and other cities where inhabitants experience daily encounter with members of law enforcement. There are good and bad cops, and despite fact that a bad cop can make one overreact there is no justification for fighting or arguing with an officer. Perhaps you wonder where the police gets its power from and as strange as it may sound, you and I gave the police its power. Through elected officials and lawmakers, we all conferred on law enforcement its power. Police officers have what is Public Authority and it is a special defense in criminal law.
While it is true officer got their power from the public, such power is not meant for abuse. 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 be used to ensure the arrest, the officer is guilty of a homicide, though, he has authority to shoot in such cases. There are certain acts, which if done by order of a superior or under 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.
A police officer, that shoots and killed an unarmed offender who has signified his willingness to surrender by raising his arms like in the Michael Brown case if confirmed by evidence, abused his authority and could be 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. (State v. Gut, 13 Minn. (Gil.Ed.) 315, 330 (1868)).
While public authority if reasonably used can exculpate a defendant officer, unreasonable use of it will completely remove the privilege, such that a police officer that abused its protection might be reasonably charged and convicted. A police 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.” (Johnson v. State, 173 Tenn. 134, 114 S.W. 819 (1938)).
The point, it is not worth arguing or fighting with the police. The officer has public authority and as long as the cop exercises his authority reasonably, he is without criminal liability. However, unreasonable or excessive use of police power by an officer, would lead to a violation and criminal sanction. If you feel wronged by an officer, there is always recourse through a formal complaint and the justice system. Always remember that it is justifiable homicide, when committed by an officer of the state and those in his aid and assistance, when the officer acts reasonably. (See Model Penal Code, section 2.10 § 196).
Adeyemi Oshunrinade [E. JD] is the author of ‘Wills Law and Contests,’ ‘Constitutional Law-First Amendment’ and ‘SAVING LOVE’ available at http://www.amazon.com/author/adeyemioshunrinade. Follow on Twitter @san0670.