Tyranny by Proxy: State Action and the Private Use of Deadly Force
Watts, John L., Notre Dame Law Review
Over the past decade there has been considerable public debate over the wisdom of the so-called "stand your ground" laws that allow for the use of deadly force in self-defense, even if the actor could safely retreat and avoid the threatening aggressor. (1) Supporters of the law maintain that law-abiding citizens should not have to cower from those threatening serious bodily harm. Rather they should be allowed to confront the threat with deadly force. (2) Opponents maintain that these laws leads to vigilante justice (3) and the needless escalation of disputes that could have been avoided had one party simply walked away. (4) While Florida's statute has garnered particular national attention, (5) stand your ground laws are neither new nor unique. (6) Currently, twenty-four states allow private citizens to use deadly force in self-defense without imposing a duty to retreat. (7) Furthermore, all states permit the police to use deadly force in self-defense without imposing a duty' to retreat. (8)
Despite the widespread focus on stand your ground laws, the continued existence of the common law fleeing felon rule has gone almost unnoticed. Several states permit private persons to use deadly force to protect property or prevent the escape of a fleeing felon even when the felon does not impose a threat of death or serious bodily harm. Under the common law fleeing felon rule, both law enforcement officers and private citizens enjoyed the privilege of using deadly force to secure the arrest of felons, but neither could use the privilege to secure the arrest of misdemeanants. (9) Although the fleeing felon rule was once the prevailing view in most American jurisdictions, in Tennessee v. Gamer, the Supreme Court held that a police officer's use of deadly force to prevent the escape of a suspected burglar violates the Fourth Amendment's prohibition against unreasonable seizures. (10) A police officer may constitutionally use deadly force only if the officer has probable cause to believe that the suspect poses a danger of serious physical harm to the officer or others. (11) Despite the Court's decision in Gamer, some states continue to allow private citizens to use deadly force to protect property or prevent the escape of nonviolent fleeing felons. (12) In these states, a private person may shoot and kill a common thief to prevent his escape even though a police officer is constitutionally prohibited from using deadly force under the same circumstances.
The common law fleeing felon rule, as it applies to private persons, is arguably constitutionally permissible because of the state action doctrine. (13) The state action doctrine and its exceptions are among the most fundamental, important, and misunderstood principles of constitutional law. (14) Under the state action doctrine, most of the Constitution's protections of individual liberties restrict the conduct of government actors, but they do not restrict the conduct of private actors. (15) There are, however, two exceptions to the state action doctrine that, when they apply, provide constitutional protections from infringements by private persons to the same extent as government actors. The entanglement exception applies when the state commands, encourages, or facilitates private action that the government is constitutionally prohibited from doing itself. (16) The second exception, the public function exception, imposes constitutional restrictions on private actors when they perform certain functions traditionally and exclusively performed by the government. (17) Unfortunately, the Supreme Court decisions discussing the doctrine and applying the exceptions have not been a "model of consistency," (18) and scholars have long regarded the exceptions as a "conceptual disaster area." (19)
This Article seeks to clarify the state action doctrine by reconsidering the purpose of the doctrine and its exceptions and redefining the public function exception so that it better fulfills its purpose. …