Rose, Rosfeld, and reality

On June 19, 2018, East Pittsburgh police officer Michael Rosfeld stopped a car because it matched the description of one that had been involved in a drive-by shooting in North Braddock some 15 minutes earlier. He detained the driver, but two passengers ran. He opened fire and fatally shot one of the passengers: Antwon Rose, Jr.

Rose was 17 years old. His hands were visible and were empty when he ran, and no weapon was found on his person. Rosfeld is now charged with his murder. As of this writing, trial is scheduled for February 26, 2019. The question is whether the shooting was murder, justifiable homicide, or something in between.

In light of the gag order in this case, I should note that, while I am acquainted with both of the attorneys that will be trying it, I have not discussed the case with either of them or with any of the attorneys representing Antwon Rose’s family. I am not privy to any facts that have not become public. I do not know the exact content of the police radio broadcast about the North Braddock incident. And I speak only for myself.

The question I address here is “When is it a crime for an officer to shoot an unarmed fleeing suspect?” “Always” is not the correct answer.

First, some general principles:

Our Crimes Code (Title 18) states in § 107(b), Common law crimes abolished, that:

No conduct constitutes a crime unless it is a crime under this title or another statute of this Commonwealth.

When a defendant asserts that a homicide was justifiable, the Commonwealth must disprove justification beyond a reasonable doubt.

If a criminal statute can be reasonably interpreted more than one way, the interpretation that favors the defendant controls. This is a constitutional requirement; in Dunn v. United States, 442 U.S. 100, 99 S.Ct. 2190, 60 L.Ed.2d 743 (1979) the United States Supreme Court stated:

[This rule] is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited. [Id. at 112.]

Similar concerns about fair notice of prohibited conduct were expressed in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). In that case the Court rejected the retroactive application of a new interpretation of a criminal statute, stating:

When a statute on its face is vague or overbroad, it at least gives a potential defendant some notice, by virtue of this very characteristic, that a question may arise as to its coverage, and that it may be held to cover his contemplated conduct. When a statute on its face is narrow and precise, however, it lulls the potential defendant into a false sense of security, giving him no reason even to suspect that conduct clearly outside the scope of the statute as written will be retroactively brought within it by an act of judicial construction. [Id. at 352.]

The Pennsylvania statute whose construction is critical here is § 508(a) of the Crimes Code. It was enacted on December 6, 1972 with an effective date of July 1, 1973. It has never been amended. The relevant portion of that statute is as follows:

(a) Peace officer’s use of force in making arrest.–

(1) A peace officer, or any person whom he has summoned or directed to assist him, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he believes to be necessary to effect the arrest and of any force which he believes to be necessary to defend himself or another from bodily harm while making the arrest. However, he 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 such other person, or when he believes both that:

(i) such force is necessary to prevent the arrest from being defeated by resistance or escape; and

(ii) 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.

Another provision in the Crimes Code — § 501 — states that “believes” means “reasonably believes”. This is a probable cause standard.

Subsection (ii) of § 508(a)(1) is vexing. It has too many conjunctions. It should have been divided into additional subparagraphs. There are two ways this could have been done, with differing meanings.

Here is the first:

. . . 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.

Here is the second:

. . . 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.

The question is whether an officer needs both forcible-felony probable cause and an indication of immediate danger (suspect is armed or engaging in behavior showing intent to endanger life or inflict injury), or whether one or the other will suffice.  I believe that “one or the other” is the correct answer.

No precedential appellate decision has addressed this question. There was a 1990 Superior Court opinion (Commonwealth v. Curtis Johnson) that said both probable cause and immediate danger were needed, but it was unpublished and therefore not precedential. I couldn’t find it online, so I went to the Superior Court office and purchased an archived copy. The opinion has no effect on the Rosfeld prosecution.

I do not believe that the Johnson decision correctly interpreted § 508(a)(1)(ii); the legislative intent can be readily discerned from two provisions within § 508 that follow the vexing one.

The use of deadly force by private citizens is governed by § 508(b)(1); it states:

(b) Private person’s use of force in making arrest.

(1) A private person who makes, or assists another private person in making a lawful arrest is justified in the use of any force which he would be justified in using if he were summoned or directed by a peace officer to make such arrest, except that he is justified in the use of deadly force only when he believes that such force is necessary to prevent death or serious bodily injury to himself or another. [Emphasis added.]

The use of deadly force by corrections officers is addressed in § 508(c)(3), which states:

(c) Use of force regarding escape.

(3) A corrections officer is justified in the use of such force, which the officer believes to be necessary to defend himself or another from bodily harm during the pursuit of the escaped person. However, the officer is justified in using deadly force only when the officer believes that such force is necessary to prevent death or serious bodily injury to himself or another or when the officer believes that:

(i) such force is necessary to prevent the apprehension from being defeated by resistance; and

(ii) the escaped person has been convicted of committing or attempting to commit a forcible felony, possesses a deadly weapon or otherwise indicates that he will endanger human life or inflict serious bodily injury unless apprehended without delay. [Emphasis added.]

What this all means is that to convict Rosfeld, the DA must prove beyond a reasonable doubt that he did not have probable cause to arrest Rose or that he could have stopped the attempted escape without using deadly force. The fact that no weapon was seen in Rose’s hands or found on his person does not make his shooting a criminal homicide.

Moreover, if the officer honestly but unreasonably believed that he had probable cause, this would reduce the offense from murder to manslaughter.

Whether there was probable cause will be determined by considering the information known to Rosfeld at the time that he fired his weapon. Anything that came to light afterwards is irrelevant.

Some commentators believe that the United States Supreme Court decision in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) changed Pennsylvania law. I can’t agree.

Garner involved a civil suit. A 15 year old burglar was fatally shot while attempting to escape the scene of his offense. He was not suspected of any act of violence toward any other person, and the officer who shot him had not believed him to be armed. The Supreme Court held that the use of deadly force was unreasonable under the circumstances, and rejected the common law rule allowing deadly force to be used against any fleeing felon. But there was an exception:

Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given. [Id. at 11-12; emphasis added.]

Moreover, while the legislature could have amended § 508 to make the criminal standard consistent with the civil standard, it did not do so. In a Michigan case in which a similar issue arose, the court rejected the theory that Garner changed state criminal law:

We agree with [the] conclusion that the decision of the United States Supreme Court in [Garner] did not “automatically” modify this state’s criminal law with respect to the use of deadly force to apprehend a fleeing felon…. [T]he prosecution’s argument that Garner applies directly to change this state’s fleeing-felon rule fails because it is premised upon the notion that the United States Supreme Court can require a state to criminalize certain conduct. Clearly, the power to define conduct as a state criminal offense lies with the individual states, not with the federal government or even the United States Supreme Court. While the failure to proscribe or prevent certain conduct could possibly subject the state to civil liability for its failure to act, or for an individual’s actions, if that state, for whatever reason, chooses not to criminalize such conduct, it cannot be compelled to do so. [State v. Couch, 461 N.W.2d 683, 684 (Mich. 1990).]

Another commentary states:

[D]eciding the constitutional standard for Garner’s civil rights suit did not disturb what the standard had to be for state criminal law prosecutions. States still have the authority to dictate under what circumstances police could justifiably use deadly force, and so avoid punishment under state law. [Chad Flanders & Joseph Welling, Police Use of Deadly Force: State Statutes 30 Years After Garner, 35 St. Louis U. Pub. L. Rev. 109, 110 (2015); original emphasis; footnotes omitted.]

Thus, Pennsylvania is left with the statute as it was enacted in 1972. It remains in effect until and unless the legislature decides to change it. Even if it had been changed the week after the shooting, the case must be decided according to the law in effect at the time of that tragic event.

Thus, an acquittal or a manslaughter verdict may simply reflect the jury’s application of the law to the facts of this case. Neither outcome, however painful, should be assumed to be a nullification of the law.

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About Norma Chase

Lawyer in private practice. Practice emphasizes family law and appellate work.
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