Journal of Criminal Law and Criminology Volume 54 Article 15 Issue 2 June Summer 1963 Justifiable Homicide by Police Officers Gerald D. Robin Follow this and additional works at: https://scholarlycommons.law.northwestern.edu/jclc Part of the Criminal Law Commons, Criminology Commons, and the Criminology and Criminal Justice Commons Recommended Citation Gerald D. Robin, Justifiable Homicide by Police Officers, 54 J. Crim. L. Criminology & Police Sci. 225 (1963) This Criminology is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. JUSTIFIABLE HOMICIDE BY POLICE OFFICERS* GERALD D. ROBIN Gerald D. Robin holds a Fellowship from the National Institute of Mental Health in connection with a program under the direction of Dr. Otto Pollak at the University of Pennsylvania. Previously, he had been engaged in the study of gang delinquents in Philadelphia under a Ford Foundation grant, and had served as an Instructor in Sociology at the University of Pennsylvania. Mr. Robin received a Master of Arts degree in Sociology from this same university and has written for other journals.--EDITOR. Probably no other type of aggressive behavior merely an excuse, whereas in the other the homi- has been the subject of as much popular and pro- cide is fully justified.1 fessional concern and investigation as homicide. The difference between the two types of non- Such interest has been restricted almost entirely criminal homicide has been emphasized because to criminal homicide, i.e., homicide which is unlaw- the present study is concerned with one class of ful and therefore subject to legally imposed sanc- justifiable homicides: the killing of criminals by tions. It is frequently not realized that all police officers. Numerically, such killings consti- homicides are not necessarily criminal. Although tute from 2% to 5% of all intentional violent homicide is the killing of one human being by deaths.2 On the other hand all forms of innocent another, it is the conditions under which the event 1RoLLIN M. PERKrNs, "The Law of Homicide," occurs that determine its criminal or non-criminal JOuRNAL or CgnmraAL LAW AND CRIMINOLOGY, 36 (6) nature. At common law non-criminal or innocent (March-April, 1946), 392-97; and MELVIN F. WINGER- homicide was divided into two types: (1) Justifiable sKY, A TREATISE ON Tm LAW OF CRIMS (Chicago: Callaghan & Co., 1958), 414-16. The common law dis- homicide, an intentional killing either commanded tinction between justifiable and excusable homicide or authorized by the law. Examples include the has been abandoned in many jurisdictions, all killings killing of an enemy during war, the execution which are not criminal being considered as justifiable of a homicides. legal sentence of death, unavoidable killings in 2 For the country, excluding accidental homicides, arresting a felon or preventing his escape, and those police slayings of criminals from 1952 through 1955 constituted 3.2% of all homicides. The causes of death necessitated in lawful self-defense which places on which this calculation is based include: late effect of the slayer in imminent peril of death or great injury purposely inflicted by another person (not in bodily harm. (2) Excusable homicide, an uninten- war); nonaccidental poisoning; assault by firearms and explosives; assault by cutting and piercing instruments; tional killing done without intent to harm and assaults by other means; injury by intervention of without criminal negligence, as well as homicide police; and execution. The annual contribution of police slayings (injury by intervention of police) to committed in self-defense upon a sudden affray- these seven types of intentional violent deaths was 3.2% as when a person kills another after becoming in 1952, 3.3% in 1953, 3.2% in 1954, and 3.1% in 1955. engaged in a sudden affray, in order to save him- Calculated from: VITAL STATISTics-SpEcIAL REPoRTs, "Mortality from Each Cause: United States 1952-54," self from reasonably apparent danger or great National Office of Vital Statistics, Federal Security bodily harm. The difference between justifiable Agency, 44 (1) February 29, 1956, p. 31. The 1955 per- and excusable homicide committed in self-defense centage was calculated from Vol. 46, No. 1, November 6, 1956, pp. 31-2. Of 662 homicides occurring in the is that in the latter the slayer is regarded as in urban area of Greater Cleveland, Cuyahoga County, fault to some extent for becoming engaged in the Ohio, between January 1, 1947 and December 31, 1953, affray. The main distinction between the two forms 35, or 5.4% were justifiable police homicides. ROBERT C. BENSING and O=xvER SCHROEDER, JR., HoICDE IN of innocent homicide is that in the one the killing AN URBAN COMMUNITY (Springfield: Charles C Thomas, is committed under circumstances that constitute 1960), 1, 80. From 1948 to 1952 the Philadelphia Police Department listed 627 homicides, 14, or 2.2% of which * The writer would like to express his gratitude to the were justifiable killings. MAviN E. WOLFGANG, PAT- following individuals for their assistance in the study: TSRNs IN CRiuNAL HoICmE (Philadelphia: Univer- Dr. Joseph W. Spelman, Medical Examiner for the sity of Pennsylvania Press, 1958), 24. Of 739 homicides County of Philadelphia; Charles E. Hughes, Jr., City committed during 1921 and 1922 in Atlanta, Birming- Archivist; David S. Brown, Captain of the Homicide ham, Memphis, and New Orleans, 42, or 5.7% of the Unit of the Philadelphia Police Department; and Dr. victims were shot while resisting arrest. J. J. Dutmarr Marvin E. Wolfgang, Associate Professor of Sociology, and W. G. STROMQUIST, "Preventing Violent Death," University of Pennsylvania. SuRvEY, 54 (8)(July 15, 1925), 437. GERALD D. ROBIN [Vol. 54 and excusable homicide combined account for a grand jury, indicted, tried by a jury, and found sizeable proportion of all killings.3 It is perhaps not guilty. In all the cases testimony presented at because of the infrequency of fatal police assaults the inquest formed an important basis upon which on criminals that the literature in this area is the medical examiner reached his decision con- almost non-existent. Nevertheless, the subject has cerning the manner of death. All of these state- a priori interest for all those concerned with law ments were examined by the writer, with particular enforcement and the problems of crime. The phe- attention directed to the examiner's summary nomenon of justifiable police homicide (J.P.H.) is opinion. From the testimony given at the inquest, a response to criminal conduct on the part of the combined with police interviews and reports, there decedent. Oddly, the decedent assumes the dual emerged a complete and accurate description of role of victim and offender: he is an offender the events leading to and the circumstances imme- because he violated the law and a victim because diately surrounding the police killings. he was killed as a consequence. There can be little doubt that for the V-O's (victim-offenders) of THE FINDINGS police homicide "Crime Doesn't Pay." Among other things, then, a study of justifiable homicides There were 42 police officers who, in the per- by police officers is an investigation of the victim's formance of their duty, shot and killed 32 male contribution to his own victimization. criminals, or 1.3 officers for each V-0. This does not include officers who fired at the V-0 but missed. THE APPROACH In 23 cases not more than one officer was respons- ible for the slaying. All of the deaths resulted from The sample studied consisted of all police kill- gunshot wounds. Eleven officers sustained injury- ings of criminals in Philadelphia from 1950 to 1960, from being bitten to multiple stab wounds-in inclusive. The books of the Homicide Unit of the attempting to apprehend the felons. Philadelphia Police Department revealed that 4 Race. Twenty-eight, there were 32 cases during this eleven year period. or 87.5%, of the 32 de- cedents were Negroes. In contrast, only 22% of Extensive records were maintained for each case, the city's population were Negro from 1950 to detailing the circumstances under which the kill- 1960, while this minority group accounted for ings occurred, various characteristics of the victim- just 30.6% of arrests for all offenses reported to offender, his previous criminal record if any, and the F.B.I. during the same period.5 In other interviews with witnesses to the homicide as well words, the Negroes' contribution as victims of as with friends and relatives of the decedent. justifiable police homicide was 2.9 and 4.0 times Thirty of the 32 cases were disposed of by the as great as their contribution to the number of medical examiner, who at the inquest exonerated persons arrested and their prevalence in the popu- the officers involved in the killings on the grounds lation of Philadelphia, respectively. The average that death was due to justifiable homicide. In the annual rate of Negro victims of police killings was two remaining cases the officers were held for the 5.47 per 1,000,000 Negro inhabitants, compared 3 Of the 1438 homicides committed in Cook County, to a white rate of .25-a ratio of 22 to 1. Regardless Illinois, in 1926 and 1927, 223 (15.5%) were non-crimi- nal. These 223 non-criminal killings include 89 police of the index used, then, the Negro's tendency to be slayings of criminals. It is likely that a good number of a subject of police slayings is excessive. This situa- the remaining non-criminal homicides are excusable, tion, however, is not restricted to Philadelphia.