Under well-established Pennsylvania law, a police officer need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. An officer is justified in the use of any force he believes necessary to effect the arrest and to defend himself or another from bodily harm while making the arrest.
However, an officer is justified in using deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or others, or when he believes deadly force is necessary to prevent the arrest from being defeated by resistance or escape, and the person to be arrested has committed or attempted a forcible felony or is attempting to escape and possesses a deadly weapon, or otherwise indicates that he will endanger human life or inflict serious bodily injury unless arrested without delay.
According to media reports, in 2017 Philadelphia Police Officer Ryan Pownall shot and killed David Jones, who attempted to flee after being stopped while riding a dirt bike and carrying a firearm.
Philadelphia District Attorney Larry Krasner charged Pownall with murder, and the case is scheduled for trial next month. Presumably Pownall’s defense will be that he believed his use of deadly force was necessary to prevent Jones from escaping while possessing a deadly weapon. If supported by the evidence, Pownall’s actions would be authorized by long-standing Pennsylvania law.
But Krasner’s office just filed an extraordinary motion asking the trial judge not to instruct the jury consistent with the law as written. Instead, Krasner’s office wants the trial judge to omit from the jury instructions the part of the law that authorizes the use of deadly force by a police officer to prevent the escape of a person in possession of a deadly weapon. Why? Krasner’s office believes the law as written and interpreted by the courts is unconstitutional because it provides that “an officer may use deadly force even if he does not believe such force is necessary to prevent death or serious bodily injury.”
The bizarre and utterly unprecedented relief sought by Krasner’s office would violate fundamental fairness, due process of law and the ex post facto provisions of the U.S. and Pennsylvania constitutions. The prosecution’s motion is idiotic, unethical and without legal foundation.
Pownall’s attorneys filed a response that quite properly called the motion “truly unimaginable” and an attempt by Krasner’s office to change the law mere weeks before trial in order to make its case easier to win. As stated in their response, “This may be the first time in Pennsylvania’s history that an elected district attorney intentionally ignored the law in bringing charges against a peace officer, and then sought judicial intervention in changing the law before a trial on those unlawfully brought charges.”
Pownall’s very able lawyers are much too kind. The bizarre and utterly unprecedented relief sought by Krasner’s office would violate fundamental fairness, due process of law and the ex post facto provisions of the U.S. and Pennsylvania constitutions. The prosecution’s motion is idiotic, unethical and without legal foundation. If granted, it would require any guilty verdict so obtained to be reversed on appeal.
First, it is fundamental that before criminal charges can be brought, the defendant’s alleged conduct must be prohibited by law. So why is Krasner’s office trying on the eve of trial to get the court to effectively re-write the law? Is its desperate maneuver a tacit albeit unintended admission that Pownall’s actions were legal? If so, why was he arrested, and why haven’t the charges been dropped?
Second, it would be blatant, reversible error for the trial judge to strip Pownall of a legal defense to which he is clearly entitled. If he were convicted pursuant to such an erroneous jury charge, Pownall’s conviction would be reversed on appeal.
Third, this effort by Krasner’s office to re-write the law comes not only on the eve of trial but two years after the charged crime was allegedly committed. If the trial judge granted the motion and held Pownall to a new, previously unknown legal standard, the ex post facto provisions of the U.S. and Pennsylvania constitutions would absolutely prohibit such a retroactive application of law and would constitute yet another obvious and rock-solid basis for reversal on appeal.
This ill-conceived and appalling maneuver by Krasner’s office raises serious questions about its commitment to the rule of law and violates its ethical and legal obligation not to pursue convictions at all cost but, rather, to seek justice.
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