Opinion
Adamss&sLong, Tupelo, for appellant.
J. P. Coleman, Atty. Gen., Joe T. Patterson, Asst. Atty. Gen., amici curiae.
Page 63
Windhams&sCunningham, Booneville, Lumpkin, Bacons&sOwen, Jackson, for appellees.
McGEHEE, Chief Justice.
Appellee urges with much seriousness a suggestion of error in this case and expresses concern lest the opinion of the Court herein will restrain and restrict law enforcement officers in the proper discharge and performance of their official duties. We find no basis for such concern.
The opinion rendered in this case announces no new principle of law. We have repeatedly condemned the reckless and unnecessary use of firearms by officers in dealing with misdemeanants. We have held that an officer is not justified in shooting a fleeing misdemeanant in order to prevent his escape. We have also held that an officer is not justified in resorting to the use of firearms in attempting to arrest a misdemeanant except to protect himself from reasonably apparent bodily harm or death at the hands of the misdefmeanant. On the other hand, we have held that an officer, in attempting to arrest a misdemeanant, may use such force as is necessary to overcome the resistance which he encounters, but is not justified in resorting to the use of firearms except to protect himself from reasonably apparent great bodily harm or death at the hands of the misdemeanant. It has been the law of this State for more than sixty years as announced in the case of Hall v. State, Miss., 1 So. 351, that one may not repel the attack of an unarmed man not his superior in physical power by slaying him, since such attack does not furnish reasonable grounds to anticipate danger to life or great bodily harm. An officer may, of course, resort to the use of firearms to subdue a misdemeanant whom he is attempting to arrest if it is reasonably apparent to the officer that by reason of the disparity in size and strength between him and the misdemeanant he is in danger of suffering great bodily harm at the hands of the misdemeanant, and this even though the misdemeanant may be wholly unarmed. It is not necessary, of course, as argued by the appellee, that the officer shall first engage in physical combat with the misdemeanant to determine the disparity in size and physical strength between them. The officer may act upon reasonable appearances, but the danger of death or great bodily harm because of such disparity in size and strength must be reasonably apparent to the officer situated as he is then situated, and the justification of the officer upon such grounds must be supported by proof. There was no such proof in this case.
We recognize the fact that an officer must of necessity be the aggressor in undertaking to arrest a misdemeanant, and that he stands on a different footing from one acting in an individual capacity, and can not be deprived of the right of self-defense merely because he is the aggressor. He is still, however, not justified in resorting to the use of firearms to repel the attack of an unarmed misdemeanant not his superior in physical strength and power, since such attack does not furnish reasonable grounds to anticipate danger to life or great bodily harm.
These principles have long been recognized as the law of this State and we think that instead of furnishing or affording a restraint or restriction upon law enforcement officers in the proper discharge and performance of their official duties, they afford an additional safeguard for the officers in justifying their resort to firearms for the purpose of overcoming resistance to the arrest of an unarmed misdemeanant. In thus applying the law which has been recognized in this State for a long period of years, we think that it should create no apprehension or concern that law enforcement officers will, by its application, be improperly restricted or restrained in the proper discharge and performance of their official duties.
In a supplement to the suggestion of error, the appellee contends that the case of State of Mississippi for use of Smith v. Broom, Miss., 58 So.2d 32, is in conflict with and overrules the opinion heretofore rendered in the case at bar. We do not concur in this contention. The two cases are clearly distinguishable. In the Smith case there was no resort to the use of firearms; there was evidence of great disparity in size and physical strength between the misdemeanant and the arresting officer; there was a plain conflict in the evidence on the question as to whether or not the officer used only such force as was necessary to effect the arrest and prevent the infliction of great bodily harm upon him. In the case at bar, there was no proof of great disparity in size and physical strength between the misdemeanant and the arresting officer; there was no dispute of the fact that the misdemeanant was wholly unarmed; there was no dispute of the fact that the officer struck the misdemeanant over the head with his pistol and shot him twice in the leg. This presents an entirely different case on the facts from the Smith case, supra, since on the record as made in the case at bar, appellee was not furnished reasonable grounds to apprehend danger to life or great bodily harm such as to justify him in shooting the appellant.
The suggestion of error is accordingly overruled.
Suggestion of error overruled.
LEE, KYLE, HOLMES, and ARRINGTON, JJ., concur.