§ 28-1412 — Use of force in law enforcement

Nebraska § 28-1412

• Jurisdiction: Nebraska
• Ch. 28: Crimes and Punishments

Text

(1) Subject to the provisions of this section and of section 28-1414 , the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes that such force is immediately necessary to effect a lawful arrest.
(2) The use of force is not justifiable under this section unless:
(a) The actor makes known the purpose of the arrest or believes that it is otherwise known by or cannot reasonably be made known to the person to be arrested; and
(b) When the arrest is made under a warrant, the warrant is valid or believed by the actor to be valid.
(3) The use of deadly force is not justifiable under this section unless:
(a) The arrest is for a felony;
(b) Such person effecting the arrest is authorized to act as a peace officer or is assisting a person whom he believes to be authorized to act as a peace officer;
(c) The actor believes that the force employed creates no substantial risk of injury to innocent persons; and
(d) The actor believes that:
(i) The crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or
(ii) There is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.
(4) The use of force to prevent the escape of an arrested person from custody is justifiable when the force could justifiably have been employed to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a peace officer is justified in using any force, including deadly force, which he believes to be immediately necessary to prevent the escape of a person from a jail, prison, or other institution for the detention of persons charged with or convicted of a crime.
(5) A private person who is summoned by a peace officer to assist in effecting an unlawful arrest is justified in using any force which he would be justified in using if the arrest were lawful; Provided, that he does not believe the arrest is unlawful.
(6) A private person who assists another private person in effecting an unlawful arrest, or who, not being summoned, assists a peace officer in effecting an unlawful arrest, is justified in using any force which he would be justified in using if the arrest were lawful, if:
(a) He believes the arrest is lawful; and
(b) The arrest would be lawful if the facts were as he believes them to be.
(7) The use of force upon or toward the person of another is justifiable when the actor believes that such force is immediately necessary to prevent such other person from committing suicide, inflicting serious bodily harm upon himself, committing or consummating the commission of a crime involving or threatening bodily harm, damage to or loss of property or a breach of the peace, except that:
(a) Any limitations imposed by the other provisions of sections 28-1406 to 28-1416 on the justifiable use of force in self-protection, for the protection of others, the protection of property, the effectuation of an arrest or the prevention of an escape from custody shall apply notwithstanding the criminality of the conduct against which such force is used; and
(b) The use of deadly force is not in any event justifiable under this subsection unless:
(i) The actor believes that there is a substantial risk that the person whom he seeks to prevent from committing a crime will cause death or serious bodily harm to another unless the commission or the consummation of the crime is prevented and that the use of such force presents no substantial risk of injury to innocent persons; or
(ii) The actor believes that the use of such force is necessary to suppress a riot or mutiny after the rioters or mutineers have been ordered to disperse and warned, in any particular manner that the law may require, that such force will be used if they do not obey.
(8) The justification afforded by subsection (7) of this section extends to the use of confinement as preventive force only if the actor takes all reasonable measures to terminate the confinement as soon as he knows that he safely can do so, unless the person confined has been arrested on a charge of crime.

Legislative History

Source: Laws 1972, LB 895, § 7; R.R.S.1943, § 28-839, (1975). Annotations: Police officer in making an arrest must use only reasonable force, which is that amount of force which an ordinary, prudent, and intelligent person with the knowledge and in the situation of the arresting police officer would have deemed necessary under the circumstances. State v. Thompson, 244 Neb. 189, 505 N.W.2d 673 (1993). Pursuant to subsection (1) of this section, a police officer in making an arrest must use only reasonable force, which is that amount of force which an ordinary, prudent, and intelligent person with the knowledge and in the situation of the arresting officer would have deemed necessary under the circumstances. Wagner v. City of Omaha, 236 Neb. 843, 464 N.W.2d 175 (1991). Officer's use of force during arrest was justified and authorized. State v. Moore, 226 Neb. 347, 411 N.W.2d 345 (1987). The legislative policy in Nebraska is that force is not to be used in making an arrest unless the arrester believes such force is immediately necessary to effect a lawful arrest. State v. White, 209 Neb. 218, 306 N.W.2d 906 (1981). This section, which was section 28-839 under the old criminal code, does apply to police officers, notwithstanding the fact that this section refers only to "actors" and that the statutory definition of "actor" excludes law enforcement officers. Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978). Where a police officer who pursued and fatally shot a burglary suspect whom he did not believe was involved in a crime involving the use or threatened use of deadly force and who did not present a substantial risk that he would cause death or serious bodily harm if his apprehension were delayed, the police officer used unreasonable force as a matter of law in firing at the suspect as he fled. Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978).