People v. Couch

461 N.W.2d 683, 436 Mich. 414

• Court: Michigan Supreme Court
• Decided: September 26, 1990
• Docket: 85979, (Calendar No. 6)
• Status: Published

Opinions

Boyle, J.

We agree with Justice Archer’s conclusion that the decision of the United States Supreme Court in Tennessee v Garner, 471 US 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

while we have kept in our statute-books a general statute resorting to the common law for all non-enumerated crimes, there has always been a purpose in our legislation to have the whole ground of criminal law defined, as far as possible, by statute. There is no crime whatever punishable by our laws except by virtue of a statutory provision.[²]

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:

All murder which shall be perpetrated by means of poison or lying in wait, or any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.[³]

Section 2 defined second-degree murder:

All other kinds of murder shall be deemed murder of the second degree, and shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.[⁴]

Section 10 referred to the crime of manslaughter:

Every person who shall commit the crime of manslaughter, shall be punished by imprisonment in the state prison, not more than fifteen years, or by fine not exceeding one thousand dollars, or both, at the discretion of the court.[⁵]

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 US 246, 263; 72 S Ct 240; 96 L Ed 288 (1952):

[W]here [a legislature] borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.

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

"[b]oth officers and private persons seeking to prevent a felon’s escape must exercise reasonable care to prevent the escape of the felon without doing personal violence, and it is only where killing him is necessary to prevent this escape, that the killing is justiñed . ... If a killing is not justiñable, it is either murder or manslaughter.” [Emphasis added.]_

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 NW2d 354 (1989), with respect to that rule.

Riley, C.J., and Brickley, J., concurred with Boyle, J. Griffin, J., concurred only in the result.

1 We are also troubled by Justice Archer’s statement, post, p 441, that the defendant is not a state actor and therefore is not subject to the constitutional restraints imposed by Garner, while "[pjolice officers, on the other hand, are state agents, and hence, directly subordinate to Gamer’s constitutional limitations.” Id., p 441. In our view, even if the defendant were a police officer, Garner could not apply "directly” as the basis for a homicide charge. That would require, in effect, two different definitions of both murder and manslaughter, one for police officers and one for the rest of us. Such a scheme could raise a significant constitutional question. US Const, Am XIV; Const 1963, art 1, § 2.

2 This point was affirmed in In re Lambrecht, 137 Mich 450, 454; 100 NW 606 (1904), in which this Court stated that "[w]e can look only to the statute for any crime punishable in this State. We look to the common law for definitions and principles in our criminal jurisprudence, but, unless the statute provides a penalty, acts criminal at the common law are not crimes in this State.”

3 The current version of the first-degree murder statute provides that "[mjurder which is perpetrated by means of poison, lying in wait, or other wilful, deliberate, and premeditated killing, or which is committed in the perpetration, or attempt to perpetrate arson, criminal sexual conduct in the first or third degree, robbery, breaking and entering of a dwelling, larceny of any kind, extortion, or kidnapping, is murder of the first degree, and shall be punished by imprisonment for life.” MCL 750.316; MSA 28.548.

4 The current version of the second-degree murder statute provides that "[a]ll other kinds of murder shall be murder of the second degree, and shall be punished by imprisonment in the state prison for life, or any term of years, in the discretion of the court trying the same.” MCL 750.317; MSA 28.549.

5 The current version of the manslaughter statute provides that "[a]ny person who shall commit the crime of manslaughter shall be guilty of a felony punishable by imprisonment in the state prison, not more than 15 years or by fine of not more than 7,500 dollars, or both, at the discretion of the court.” MCL 750.321; MSA 28.553.

6 See also People v Potter, 5 Mich 1, 5 (1858), in which it was stated, "Murder is where a person of sound memory and discretion unlawfully kills any reasonable creature in being, in the peace of the state, with malice prepense or aforethought, either express or implied. This, the common law definition, is still retained in our statute. It speaks of the offense as one already ascertained and deBned, and divides it into degrees . . . .” (emphasis added); People v Utter, 217 Mich 74, 86; 185 NW 830 (1921) ("While murder is defined by statute in this State, and the killing of a human being under specified circumstances made murder in the first degree, it also includes the common-law deBnition . . . (Emphasis added.)

7 See also Perkins & Boyce, Criminal Law (3d ed), p 1099:

Firmly established in the common law of England was the privilege to kill a fleeing felon if he could not otherwise be taken,⁴² a privilege extended to the private person as well as to the officer ....

42 "If a felony be committed and the felon fly from justice, ... it is the duty of every man to use his best endeavours for preventing an escape; and if in the pursuit the felon be killed, where he cannot otherwise be overtaken, the homicide is justifiable.” 1 East, Pleas of the Crown 298 (1803).

8 We acknowledge this Court’s opinion in People v Stevenson, 416 Mich 383; 331 NW2d 143 (1982), concluding generally that this Court does have the authority to change the common law so as to enlarge the scope of a defendant’s criminal liability, and in particular that it had the authority to abolish the common-law "year and a day” rule. The Stevenson opinion, however, hardly contains an exhaustive analysis of the question, and cites no authority in support of its conclusion. Moreover, Stevenson did not involve a claim of legislative adoption of the common-law rule, nor did it involve legislative acquiescence in the face of a ruling by this Court, as occurred after People v Gonsler, 251 Mich 443; 232 NW 365 (1930).

9 Perkins & Boyce, supra, p 1105.

10 Perkins & Boyce, supra, pp 1099-1100.

In other words according to the English common law a private person was never privileged to use deadly force merely to stop the flight of one he was seeking to arrest without a warrant, if that one was in fact innocent. [Emphasis in original.]

11 As the California Court of Appeals recently stated in People v Gilmore, 249 Cal Rptr 914, 921, n 5 (1988), after concluding that Gamer had not automatically modified that state’s fleeing-felon rule, "we have distilled from the governing statute [by reference to the common law] and applied to the undisputed facts the legal principles which we . . . believe to be controlling. If it is thought desirable to change the statute for future cases, that is the responsibility of the Legislature.” Although review of the Court of Appeals opinion was denied by the California Supreme Court, that court did direct that it not be published in the official reporter. 203 Cal App 3d 612 (1988). We do not share the California high court’s apparent uneasiness with the lower court’s discussion in Gilmore.