PEOPLE v. COUCH

BOYLE, J.

We agree with Justice ARCHER'S conclusion that the decision of the United States Supreme Court in Tennessee v Garner, 471 U.S. 1; 105 S.Ct. 1694; 85 L Ed 2d 1 (1985), did not "automatically" modify this state's criminal law with respect to the use of deadly force to apprehend a fleeing felon. Post, p 441.

As Justice ARCHER explains, Garner's pronouncements regarding the constitutionality of the use of such force are inapplicable to private citizens such as the defendant. Regardless of the defendant's status as a private citizen, however, the prosecution's argument that Garner applies directly to change this state's fleeing-felon rule fails because it is premised upon the notion that the United States Supreme Court can require a state to criminalize certain conduct. Clearly, the power to define conduct as a state criminal offense lies with the individual states, not with the federal government or even the United States Supreme Court. While the failure to proscribe or prevent certain conduct could possibly subject the state to civil liability for its failure to act, or for an individual's actions, if that state, for whatever reason, chooses not to criminalize such conduct, it cannot be compelled to do so.

Moreover, we fail to see how Garner can be applied "directly" in any event, since the Court in that case concluded only that the use of deadly force to apprehend a fleeing felon who posed no harm to the officer or others was "unreasonable" for purposes of the Fourth Amendment. In other words, Garner was a civil case which made no mention of the officer's criminal responsibility for his "unreasonable" actions. Thus, not only is the United States Supreme Court without authority to require this state to make shooting a nondangerous fleeing felon a crime, it has never even expressed an intent to do so.1

Unlike Justice ARCHER, however, we decline the opportunity to change the common-law fleeing-felon rule with respect to criminal liability to conform with Garner. Not only does this Court (and therefore the Court of Appeals) arguably lack the authority to do so, even prospectively, given the Legislature's adoption of and acquiescence in that rule, we must resist the temptation to do so. The question whether the common law, which allows the use of deadly force by a citizen only to apprehend a felon who is in fact guilty, has outlived its "utility" (post, p 440) is a matter of compelling public interest, demanding a balancing of legitimate interests which this Court (and therefore the Court of Appeals) is institutionally unsuited to perform. In short, it is a question for the Legislature.

I

Justice CAMPBELL observed long ago in In re Lamphere, 61 Mich. 105, 108; 27 NW 882 (1886), that

Criminal homicide, or more precisely murder and manslaughter, has been a statutory offense in Michigan since 1846, when the state's first Penal Code was enacted. 1846 Mich Rev Stat, title XXX, "Of Crimes and the Punishment Thereof," ch 153, § 1, defined first-degree murder:

Section 2 defined second-degree murder:

Section 10 referred to the crime of manslaughter:

Obviously, the crimes of murder and manslaughter are not defined in these statutes in the sense that the elements of those offenses, along with any recognized defenses, are included in the language of the statutes. That does not mean, however, that they are left wholly undefined. As Justice Jackson stated in Morissette v United States, 342 U.S. 246, 263; 72 S.Ct. 240; 96 L Ed 288 (1952):

Similarly, in People v Schmitt, 275 Mich. 575, 577; 267 NW 741 (1936), this Court stated that "[i]n construing a statute wherein a public offense has been declared in the general terms of the common law, without more particular definition, the courts generally refer to the common law for the particular acts constituting the offense." Where the Legislature "has shown no disposition to depart from the common-law definition, therefore it remains." Id. (Emphasis added.)6

To the extent that the Legislature intended to convey "satisfaction with" the existing common-law definitions of murder and manslaughter and to adopt and embrace those definitions, Morissette, supra, p 263, it is debatable whether this Court still has the authority to change those definitions. The Legislature is presumed to have accepted the then-existing common-law rule that "[a]ny private person (and a fortiori a peace-officer) [may arrest a fleeing felon] ... and if they kill him, provided he cannot otherwise be taken, it is justifiable...." 4 Blackstone, Commentaries, p 293 (emphasis in original).7 Thus, murder and manslaughter, arguably, are no longer common-law crimes in this state, but rather became statutory crimes as early as 1846, and we are no longer free to redefine what is not justifiable homicide by holding that a citizen is "not privileged to use deadly force to prevent a fleeing felon's escape unless the arresting citizen reasonably believes that the felon poses a threat of serious physical harm to that citizen or to others." Post, p 440.8

We need not resolve our authority to modify the common-law rule, however, because we find in any event that the presumption of legislative adoption is in this case affirmed by fifty years of legislative acquiescence in this Court's decision in People v Gonsler, 251 Mich. 443, 446-447; 232 NW 365 (1930), in which we approved the trial court's instruction that

II

Regardless of whether this Court has the authority to change the law of homicide, and make criminal something that has never before been a crime in this state, we nonetheless decline to do so in this case. "To declare what shall constitute a crime, and how it shall be punished, is an exercise of the sovereign power of a state, and is inherent in the legislative department of the government." People v Hanrahan, 75 Mich. 611, 619; 42 NW 1124 (1889). This is particularly true here.

The definitions of a "nondangerous" felony, or who is a nondangerous felon, and how such a felon may be apprehended are quintessentially matters of policy. They involve the delicate weighing and balancing of the particular nature and quality of the felonious intrusion on a citizen's interests, on the one hand, and the protection of the felon's interest in longevity on the other. There is an obvious difference, for example, in the citizen's interest in the sanctity of his home and his interest in his automobile or power boat, just as there is a clear distinction between setting fire to a dwelling and stealing a $200 bicycle, although all are felony/property offenses. Presumably for this reason, the penal codes of some states grant the authority to apprehend a fleeing felon through the use of deadly force if the arrest is for a "forcible" felony, and at least one state has defined forcible felony to include, among others, arson and burglary.9

Since the Legislature has evidenced no general intent to reduce the penalties for "mere" property offenses, or, for that matter, major drug offenses, it may well be that the Legislature would not refine such distinctions with respect to the fleeing-felon rule, and would draw the line by saying that a person who is in fact guilty10 and chooses to flee from the scene of a felony assumes a risk to life and limb. For example, the Legislature may decide that the civil penalties for an improper exercise of the right to use deadly force, as well as the fact that the private citizen acts at his peril and is criminally responsible if he is wrong, are enough of a deterrent to the misuse of such authority.

The point is not that another rule may be wiser, or that there are not situations in which the loss of a felon's life is tragic, but rather that it is the Legislature that must determine whether the common-law rule has outlived its "utility." Stated otherwise, it is hard to conceive of an issue more demanding of public debate and the give-and-take of the legislative process than whether the citizens of Michigan are willing to assume the risk that certain criminals should remain at large rather than be subjected to the risk of harm at the hands of their victims. The clear question of policy, whether police officers or citizens should be subject to criminal liability for the killing of a nondangerous fleeing felon, is one for the Legislature, not this Court.11

CONCLUSION

We affirm in part the decision of the Court of Appeals insofar as it holds that Garner did not change this state's criminal law with respect to the use of deadly force to apprehend a fleeing felon. We therefore concur in Justice ARCHER'S opinion to the extent that it so holds. However, we reverse the decision of the Court of Appeals to "adopt[] a new standard," People v Couch, 176 Mich.App. 254, 260; 439 N.W.2d 354 (1989), with respect to that rule.

RILEY, C.J., and BRICKLEY, J., concurred with BOYLE, J.

GRIFFIN, J., concurred only in the result.

LEVIN, J. (concurring in reversal).

We agree that Tennessee v Garner, 471 U.S. 1; 105 S.Ct. 1694; 85 L Ed 2d 1 (1985), did not modify the criminal law of this state.

We are persuaded that this Court should decline, as a matter of judicial restraint, to exercise whatever authority it may have to modify the criminal law as urged by the prosecutor.1 Whether the fleeing-felon rule should be confined to situations where the citizen seeking to make an arrest reasonably believes the felon poses a threat of serious physical harm is a question better left to the Legislature. We thus see no need to reach the question whether this Court has the authority to modify the fleeing-felon rule.

The suggestion in the lead opinion that this Court might not have the authority to modify the criminal law implicates this Court's decision in People v Stevenson, 416 Mich. 383; 331 N.W.2d 143 (1982). There, the Court abolished the common-law "year and a day" rule,2 and in so doing rejected Stevenson's argument that "this Court lacks the power to change the common law so as to enlarge the scope of criminal liability...."3

As a result of the Court's decision in Stevenson, prisoners are now serving lengthy sentences on the basis of convictions that could not have been obtained before this Court modified the "common law" of homicide. In suggesting that this Court might not have the authority to modify the criminal law, the lead opinion calls into question the decision in Stevenson as well as all convictions obtained in contravention of the common-law "year and a day" rule.

It is inappropriate to discuss the authority of this Court to modify the criminal law — a question of undeniable jurisprudential importance — in a case where the question was not discussed by the Court of Appeals,4 was not briefed,5 and was not raised at oral argument.

We concur in the reversal of the decision of the Court of Appeals.

GRIFFIN, J., concurred with LEVIN, J.

ARCHER, J.

We granted leave to consider whether the common-law rule of People v Whitty, 96 Mich.App. 403; 292 N.W.2d 214 (1980), permitting a private person to use deadly force to apprehend a fleeing felon should be modified in light of Tennessee v Garner, 471 U.S. 1; 105 S.Ct. 1694; 85 L Ed 2d 1 (1985), which, under the Fourth Amendment, forbids police officers to use deadly force in arresting nondangerous fleeing felons, and, if so, whether such a modification would violate the prohibition against ex post facto laws1 applicable to the judiciary through the Due Process Clauses of the United States and Michigan Constitutions.2

We would hold that a private citizen making an arrest pursuant to MCL 764.16; MSA 28.875 is not privileged to use deadly force to prevent a fleeing felon's escape unless the arresting citizen reasonably believes that the felon poses a significant threat of serious physical harm to the citizen or to others. In the event excessive force is used, that citizen may be subject to criminal prosecution. We would further hold that such a rule should have prospective application only.

Accordingly, we would affirm that part of the Court of Appeals decision modifying the common-law deadly force rule in accordance with Garner. However, we would reverse that part of the decision which applied the rule retroactively, and we would remand this case to the trial court, which, if there is a trial, should instruct the jury, if appropriate, in accordance with the common-law rule of People v Whitty.

I

FACTS AND PROCEEDINGS

On October 15, 1986, at approximately 1:10 P.M., defendant Archie L. Couch, Jr., was in his office in Detroit when he heard his car alarm. He promptly left his office and walked to the adjacent parking lot where his car was parked. As he approached his car, he observed a man standing near the driveway of the parking lot who yelled something, and then ran eastward. Upon reaching his car, the defendant noticed that the front driver's window was smashed and observed Alfonso Tucker, Jr., sitting in the middle of the car's front seat, bending forward, apparently having dismantled the car's stereo.

The defendant then reached for his revolver which was in his waistband and for which he had a license. Walking to the rear of the car, the defendant held the gun in the air and reportedly said, "`Get out of the car and go with me so I can call the police.'" Tucker then slid over to the passenger door. The defendant walked around the rear of the car toward the same door. Tucker got out of the car stating, "`Okay, man, don't shoot.'" The defendant then recalled saying, "`Come on with me, I am going to call the police.'" Tucker then lunged toward the defendant, and the defendant fired one shot which apparently missed. Tucker proceeded to run away from the defendant. When he was approximately twenty to thirty feet away, the defendant fired two more shots which fatally wounded him.

The defendant immediately directed his receptionist to call the police. After the police arrived and defendant gave them a full statement, he was arrested and charged with manslaughter under MCL 750.329; MSA 28.561 and with possession of a firearm during the commission of a felony under MCL 750.227b; MSA 28.424(2).

On November 17, 1986, the defendant was bound over for trial as charged. In the trial court, he moved to quash, arguing that the killing of Alfonso Tucker, Jr., was justifiable homicide under the common-law rule allowing a citizen to use deadly force3 to apprehend a fleeing felon. See Whitty, supra. This motion was denied, as was his later motion for reconsideration.

The prosecutor then moved in limine that the jury be instructed in accordance with Garner's restriction of deadly force, as opposed to Whitty's allowance of it. The trial court denied this motion, reasoning that it was too early in the proceedings to rule on a jury instruction.

On appeal, the Court of Appeals remanded the case, instructing the trial court to rule on the prosecution's request for a jury instruction on the basis of Garner. On remand, the trial court held that Garner did not apply to the instant facts and again denied the prosecutor's instructional request. The prosecutor appealed, and the trial court further ordered that the trial be stayed pending appellate review of its ruling that the rule of Whitty and not that of Garner should be cited in the instructions to the jurors.

On April 3, 1989, the Court of Appeals reversed, holding that the rule of Whitty should be modified in accordance with Garner to provide that a private citizen who makes an arrest may use deadly force only to prevent a felon from fleeing where the citizen has a reasonable belief that the felon poses a threat of serious physical harm to that citizen or to other citizens. The Court further held that Garner applied retroactively so as to criminalize the instant shooting.4 We subsequently granted leave to appeal.5

II

Today we are called upon to analyze and determine the powers of citizens to effect arrests in this state. MCL 764.16; MSA 28.875, the citizens arrests statute, provides:

Defendant Couch was authorized by MCL 764.16(a); MSA 28.875(a) to arrest Alfonso Tucker, Jr. However, authorization for use of deadly force in an arrest attempt was not provided by the statute, and thus we must turn to the common law.

The common-law rule initially concerned the actions of police officers. In Hale's Pleas of the Crown, it is stated:

In 1930, this Court in People v Gonsler, 251 Mich. 443, 446-447; 232 NW 365 (1930), applied this common-law principle to private arrests:

The clearest statement concerning Michigan's continued adherence to the common-law deadly force rule was made by the Court of Appeals in People v Whitty, supra. In that case, Roosevelt Whitty, the manager of a party store in Highland Park, attempted an arrest of an armed robber. In apprehending the assailant, Whitty fatally wounded him. Mr. Whitty was convicted of first-degree murder.

On appeal, the Court of Appeals reversed, applying the common-law rule permitting the use of deadly force. The Court reasoned that the common-law rule should be maintained because:

Five years after the decision in Whitty, the United States Supreme Court in Tennessee v Garner held that under the Fourth Amendment of the United States Constitution,6 police officers cannot resort to deadly force in making an arrest unless such force is necessary to prevent the escape of a fleeing felon and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or to others. The basis of the Court's ruling was that the killing of a fleeing suspect was an unreasonable seizure under the Fourth Amendment. The Court reasoned:

Garner's constitutional restriction of police power to arrest causes us to question the continued validity of the common-law rule presently governing private citizen arrests in Michigan. Three interrelated questions are presented: First, does Garner provide controlling authority to automatically modify Whitty's common-law deadly force rule, and, if not, is it persuasive authority for modifying the rule today? Lastly, should Garner or any modified rule be applied in this case?

III

Initially, we conclude that Garner's limitation of the privilege previously available to arresters in apprehending felons, grounded upon a Fourth Amendment seizure analysis, while highly pertinent to the resolution of this case, does not control its outcome unless citizen arrests are found to represent state action rather than action solely attributed to private persons.

We do not believe citizen arrests are state action. Thus, in accordance with the holding of the Court of Appeals, we conclude that Garner provides only persuasive and not controlling authority for application in the instant case.

A

The prosecutor first urges this Court to rule that arrests, whether performed by a citizen or a police officer, of themselves are state action, and that any discussion or limitation of the means available to arresters is automatically subordinate to the Fourth and Fourteenth Amendments of the United States Constitution. In support, the prosecution argues that the wording of the arrest statutes, MCL 764.15; MSA 28.874 for police7 and MCL 764.16; MSA 28.875 for private citizens, is "not essentially different." We are not persuaded. Similarly worded statutory authorization which, in this case, is questionable to begin with is, in our view, one of the few parallels between police and citizen arrests that exists.

The manifest differences between police arrests, the focus of Garner, and citizen arrests, the focus of Whitty, prohibit us from easily grouping the terms under one generalized heading. Although, the prosecutor correctly notes that arrests are made for the common purpose of commencing state prosecutions, the manner and means of effecting arrests varies significantly with respect to police officers and civilians.

For example, police officers not only are licensed to carry weapons, they are intensely trained in their use. The responsibility for the training is borne by city and state police departments, so that trained officers become agents of the state. See Ross v Consumers Power Co (On Rehearing), 420 Mich. 567, 661; 363 N.W.2d 641 (1984). Officers are instructed to perform tasks such as arrests as a matter of public duty,8 not, as is the case with civilians, as a matter of private privilege. Thus, despite common ends, private arresters are limited to "stand[ing] in the shoes" and "playing the part" of police officers.9 Plainly, there are a significant number of unbridged gaps and obvious differences between the means used by skilled, trained, and sophisticated police officers and those used by untrained, and inexperienced civilians. For this reason, we conclude that police arrests and private arrests cannot be simplistically defined or categorized as being one and the same. A private person's manner in arresting a felon cannot automatically be attributed to the state.

The prosecutor also contends that because a citizen arrest is authorized by statute, it is conduct discharged "under [the] color" of law, and therefore, automatically attributable to the state. In support, the prosecution cites United States v Price, 383 U.S. 787, 794, n 7; 86 S.Ct. 1152; 16 L Ed 2d 267 (1966):

To the contrary, the Supreme Court in Flagg Bros, Inc v Brooks, 436 U.S. 149, 164; 98 S.Ct. 1729; 56 L Ed 2d 185 (1978) reasoned:

In essence, the Court established that an action by a private party pursuant to a statute, without "something more,"11 is not sufficient to justify a characterization of that party as a "state actor."

We do not believe that the conduct of defendant is chargeable to the State of Michigan. Beyond providing the basic statutory framework, the state has absolutely no involvement in the idiosyncratic application of the citizen arrest statute. The state simply cannot bear responsibility for the individual acts of an uncertain number of private persons, each of whom has the privilege at any given moment to attempt the apprehension of a suspected felon. Patent distinctions exist between the means used by trained police officers and those used by members of the general public to effect arrests. Even though police and citizen arrests are carried out with the common goal of maintaining public peace, this does not automatically equate private efforts with those of the state. See People v Holloway, 82 Mich.App. 629; 267 N.W.2d 454 (1978) (the acts of a security guard hired for the purpose of keeping the peace was found not to be subordinate to the constitution). We do not believe the citizen's arrest statute provides the "something more" needed to "lend the weight of the State to [individual] decisions." See Lugar v Edmondson Oil Co, 457 U.S. 922, 937, 939; 102 S.Ct. 2744; 73 L Ed 2d 482 (1982).

Accordingly, we conclude that the instant case is not controlled by or subordinate to the Fourth and Fourteenth Amendments. We further conclude that Garner does not provide controlling authority for the resolution of this case.

B

We do agree with the Court of Appeals, however, that Garner does provide persuasive authority. Generally, the common-law rule permitting use of deadly force to effectuate an arrest applies to "[b]oth officers and private persons seeking to prevent a felon's escape...." 3A Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1691(d), p 231. (Emphasis added.) See Gonsler at 446-447.

Because the common-law rule was the source of authority in this state for both police and civilian use of deadly force to stop fleeing felons, as a practical matter we believe Garner's expressed limitations on the use of deadly force by police officers should be applied to civilians as well.

The lead opinion correctly contends that the Court has no jurisdiction to amend statutes but that it has the authority to amend or change the common law. We are not purporting to modify the elements of the statutory offense. The rule permitting private citizens to use deadly force to prevent a fleeing felon's escape is a defense to homicide, rather than an element of either manslaughter or murder. We would merely amend the common law, as the Court is authorized to do by the Michigan Constitution.12

It is true that the Legislature has authorized private citizens to make arrests, see MCL 764.16; MSA 28.875. However, the statutory language does not support the contention that the Legislature authorized the use of deadly force by private citizens arresting a fleeing felon. Legislative history is silent on this issue. Such authorization was made by case law, not statute. See Gonsler, Whitty, supra.

Providing some practical reasons why the common-law rule should not be applied in the present, the Court in Garner expressed:

Like the Garner Court, we are not persuaded that the shooting of a nondangerous fleeing suspected felon is so vital as to outweigh the sanctity of the suspect's interest in his own life.13 The consequences of the continued use of an unmodified common-law deadly force rule, death or serious injury, far outweigh the rule's alleged utility especially in this case where the suspected felon did not appear to pose a serious threat of harm and did voluntarily retreat pleading, "Okay, man, don't shoot."

The argument that "police cannot be everywhere they are needed at once," Whitty at 416, no longer has the force it once did because Garner has since limited what police officers can do even when they arrive promptly at the scene of a felony. In People v Coons, 158 Mich.App. 735, 739; 405 N.W.2d 153 (1987), the Court of Appeals reasoned that despite Garner, the Court could "not give [a] defendant permission to use deadly force in a situation where it would be denied to a law enforcement officer having broader powers to effect an arrest." (Emphasis added.) We agree.

Accordingly, we would hold that a private citizen effecting an arrest pursuant to MCL 764.16; MSA 28.875 is not privileged to use deadly force to prevent a fleeing felon's escape unless the arresting citizen reasonably believes that the felon poses a threat of serious physical harm to that citizen or to others. In the event excessive force is used, the citizen arrester may be subject to criminal prosecution commensurate with the injury caused.

IV

Upon the basis of the erroneous belief that defendant Couch was a "state actor" whose acts were subordinate to the Fourth and Fourteenth Amendments, the prosecutor argues that our Garner-based decision should be applied retroactively. Alternatively, the prosecutor argues that Garner's 1985 release automatically modified the common-law rule articulated in Whitty. We disagree with both assertions and would hold that such an amendment should have prospective application only.

Garner provided substantial, persuasive guidance in the fashioning of our new standard. Yet, its holding did not automatically modify Whitty. The citizen arrester in Whitty and in this case were not "state actors," and, therefore, not subject to the constitutional restraints imposed by Garner. Police officers, on the other hand, are state agents, and hence, directly subordinate to Garner's constitutional limitations.

Until now, the common-law rule of Whitty has remained intact. On October 15, 1986, defendant Couch's use of deadly force in attempting to arrest Alfonso Tucker, Jr., was consistent with Whitty. We believe that any other conclusion would deprive the defendant of his due process right to a fair and specific notice of the conduct for which he may be criminally penalized.14 Nor can we condone or ourselves engage in what we consider to be forbidden judicial action ex post facto. See People v Stevenson, 416 Mich. 383, 395; 331 N.W.2d 143 (1982), citing Marks v United States, 430 U.S. 188; 97 S.Ct. 990; 51 L Ed 2d 260 (1977), and Bouie v City of Columbia, 378 U.S. 347; 84 S.Ct. 1697; 12 L Ed 2d 894 (1964); People v Demster, 396 Mich. 700, 714-718; 242 N.W.2d 381 (1976). We conclude that such a modified rule should not be applicable to defendant Couch's actions of October 15, 1986, and that the rule should have prospective application only.

CONCLUSION

We conclude that defendant Couch's actions are to be analyzed under the common-law standard articulated in Whitty. Accordingly, we would affirm in part and reverse in part, the decision of the Court of Appeals.

CAVANAGH, J., concurred with ARCHER, J.