State v. Barr
1977 Ariz. App. LEXIS 608, 565 P.2d 526, 115 Ariz. 346 (1977)
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Rule of Law:
For a private citizen to claim the defense of justifiable homicide in apprehending a fleeing felon, a felony must have in fact been committed. Furthermore, deadly force is only justified if the felony is one that reasonably creates a fear of great bodily injury.
Facts:
- Thomas Koenen, an antique store owner, asked his neighbor, the appellant, to 'keep an eye' on his yard where he stored old furniture parts.
- On the night of December 21, 1970, appellant was awakened by noises and saw several young men in the yard, one of whom was urinating on his wall.
- Believing the men were stealing chairs valued at less than $5.00, appellant retrieved his pistol and went outside to confront them.
- Appellant confronted Timothy Tylutki and his companion, John Caid, who were carrying chairs.
- Appellant ordered the men to drop the chairs and stop; they dropped the chairs but continued to walk away, ignoring his commands.
- Appellant fired two warning shots into the air.
- After hearing what he thought was a rock whizzing by him, appellant lowered his gun and fired again, intending to shoot over the men's heads.
- One of the shots struck 19-year-old Timothy Tylutki in the head, killing him.
Procedural Posture:
- The State charged appellant with manslaughter in an Arizona state trial court.
- During the trial, the judge refused to give jury instructions on the defense of justifiable homicide, finding it inapplicable as a matter of law.
- The trial court also refused to allow appellant's counsel to argue the defense in his opening statement or to cross-examine witnesses about burglary arrests.
- A jury convicted appellant of voluntary manslaughter while armed with a gun.
- Appellant (appellant) appealed his conviction to the Arizona Court of Appeals, arguing the trial court erred in rejecting his justifiable homicide defense.
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Issue:
Does the defense of justifiable homicide for apprehending a fleeing felon apply where a felony was not actually committed, and where the underlying offense was a non-violent property crime?
Opinions:
Majority - Howard, Chief Judge
No, the defense of justifiable homicide for apprehending a fleeing felon does not apply in these circumstances. The defense requires, at a minimum, that a felony was in fact committed. A private person's reasonable belief that a felony occurred is insufficient, as a private citizen's authority to arrest is more limited than a police officer's and requires an actual felony. The court found as a matter of law that no burglary occurred because the yard was not 'fenced or otherwise enclosed' as required by statute. As a second and independent reason, the court held that modern jurisprudence limits the use of deadly force to situations involving felonies that reasonably create a fear of great bodily injury, not non-violent property crimes. The common law rule allowing deadly force for any felony is outdated now that many felonies are non-capital offenses.
Analysis:
This decision significantly narrows the common law fleeing felon rule for private citizens in Arizona. It establishes a stricter, two-part standard requiring not only that a felony was actually committed, but also that the felony was inherently dangerous. By aligning the justifiable homicide rule for citizen's arrests with the rules for self-defense and defense of habitation, the court prioritizes human life over the recapture of property or the apprehension of non-violent offenders. This precedent makes it much more difficult for private individuals to justify using deadly force against suspected criminals, limiting its application to situations posing a threat of serious physical harm.
