Conford, Freund and Labrecque. The opinion of the court was delivered by Labrecque, J.s.c. (temporarily assigned).
The plaintiff Merritt Wimberly, Sr. appeals from a judgment of dismissal following a jury verdict of no cause for action in the Superior Court, Law Division. He further appeals from an interlocutory order denying his motion for summary judgment as to liability and from the denial of his later motion for a new trial.
Plaintiff sues as general administrator and as administrator ad prosequendum of the estate of his son, James Wimberly, who met his death on March 8, 1959 as a result of a bullet fired from the pistol of defendant Docherty. As representative of the next of kin, he sues to recover damages for the wrongful death of the decedent. As administrator of decedent's estate, he seeks damages for his pain and suffering during the short period between the shooting and his death.
At the time of the shooting Docherty was a police officer of the City of Paterson, and he and a fellow police officer, Peter Klikier, were attempting to apprehend the decedent. The latter, then aged 17 years and 5 months, had been attending an evening basketball game at the Paterson armory. There Klikier recognized him as one wanted by the police department. They stopped him and demanded that he identify himself. He told them his name was Bates and that he was 19 years of age. He was thereupon told that he was being taken into custody as a parole violator. He was, in fact, on parole from the Jamesburg State Home for Boys, to which he had been committed in 1957 and from which he had been released in April 1958. The officers knew of no outstanding complaints or warrants for his arrest and no indictments were pending against him. The only authorization on which they were acting was an informal instruction from a superior police officer, Detective Sgt. Ventimiglia, to pick up the decedent as a parole violator and for questioning on suspicion, "if you happen to see him."
The two officers took Wimberly to the door of the armory
where they were joined by a Sgt. Tanis, also of the Paterson police. Suddenly he pushed Klikier aside, bolted from the armory and began to run north on Pennington Street, with Klikier, Docherty and Tanis in pursuit. In the initial phase of the chase, Klikier fired a warning shot in the air. He was then passed by Docherty who fired two additional shots in the air. When he reached a point near the entrance to an alley, the decedent fell but picked himself up and ran into the alley.
The alley was approximately 4 feet wide and 36 feet long. Docherty testified that when he reached it, he shouted "halt" and upon receiving no answer he fired one shot down the left side of the alley at a patch of light on the ground, some 20 or 30 feet distant. He asserted that he intended it to be a warning shot but was afraid to fire into the air because it was dark and a bullet might have entered a house. The bullet struck the decedent, fatally wounding him.
Docherty, who had been on the Paterson police force for some three years, was an expert marksman and a member of the police pistol team. He had previously served for three years in the Marine Corps. He testified that when he went into the alley after firing the shot, the decedent grabbed his legs and pulled him down so that he and Klikier had to subdue him. Decedent was subsequently taken to the hospital in a patrol wagon, both officers stating that he continued to struggle. However, this was disputed by some of the decedent's friends who asserted that he was limp. In any event he died a very short time after reaching the hospital. The record is not clear as to whether he was hit directly or whether the bullet ricocheted.
The grounds of appeal urged may be generally classified as follows: (1) error in the failure of the trial court to enter summary judgment or to direct a verdict in favor of the plaintiff as to liability; (2) improper and prejudicial remarks in summation by counsel for the defendant; (3) errors in the admission of evidence; (4) errors in the charge; (5) refusal to grant a new trial for the foregoing
reasons, and (6) that the verdict was contrary to the evidence and the result of passion, prejudice, partiality or mistake.
Plaintiff's basic contention in respect of the first contention is that as a matter of law the officers had no right to use firearms in attempting to arrest the decedent, a 17-year-old juvenile charged with nothing more than parole violation and under suspicion of having committed other offenses. Noback v. Town of Montclair , 33 N.J. Super. 420 (Law Div. 1954). He asserts that the City of Paterson was liable for their actions under the doctrine of respondeat superior and that upon the undisputed facts summary judgment should have been entered as to liability. McAndrew v. Mularchuk , 33 N.J. 172 (1960). A motion for summary judgment to that effect was made and denied. At the completion of the eight-day trial, a motion for a directed verdict as to liability was made and denied.
In opposition to the motion, it was urged that the shot had been fired as a warning only, in an effort to halt decedent's flight and not with intent to strike or harm him. The court held that it was for the jury to determine whether the shooting was intentional, or whether it resulted from the negligent firing of a warning shot by Docherty.
The question presented is restricted to whether a police officer may, if in the exercise of due care, fire a warning shot where an unarmed juvenile is sought to be taken into custody for an alleged parole violation, or for questioning as a suspect in connection with the investigation of past offenses not committed in the presence of the arresting officer. The plaintiff, relying upon the reasoning of the court in Noback v. Town of Montclair, supra , at p. 427, and Davis v. Hellwig , 21 N.J. 412 (1956) (affirming 37 N.J. Super. 569 (App. Div. 1955)), asserts that no such right exists. He further contends that, regardless of the motive which may have actuated Docherty, the firing by
him, at close range into the narrow passageway where he knew or should have known his quarry must be, evinced such a reckless disregard of consequences as to require a peremptory finding of liability.
The rule is well established that a police officer in effecting an arrest has the right to use such force as he feels reasonably necessary, being responsible, however, for the use of any excessive force, or for the wanton abuse of discretion in determining the amount of force reasonably required to effect the arrest. Antwine v. Jones , 14 N.J. Super. 86, 88 (App. Div. 1951); Restatement, Torts , §§ 131 (1948 Supp.), 132, 133 (1934). If resistance to lawful arrest is encountered, the officer may repel force with force even to the extent of killing the offender if that extremity becomes necessary to effect the arrest or to protect himself from serious bodily injury. Noback v. Town of Montclair, supra , at p. 427; 2 Bishop, Criminal Law (9 th ed.), §§ 647(1) and 650. Likewise, following the common law rule, a police officer has been held justified in shooting or killing an escaping felon either before or after an arrest if the offender could not otherwise be captured. Noback v. Town of Montclair, supra, p. 427; Commonwealth v. Duerr , 158 Pa. Super. 484, 45 A. 2 d 235 (Super. Ct. 1946); Charge of Justice Depue to the Essex County Grand Jury , 9 N.J.L.J. , 167-169 (1886); Davis v. Hellwig, supra, p. 416.
But a fleeing offender who is charged with a misdemeanor, as distinguished from a common law felony, or with a breach of the peace or a violation of the Disorderly Persons Act, falls into an entirely different category, and a police officer who shoots at such an offender subjects himself to civil liability as well as criminal prosecution. Davis v. Hellwig, supra; cf. State v. Williams , 29 N.J. 27, 37 (1959). In Davis , the court pointed out the reasons underlying this distinction by quoting from the opinion of the North Carolina Supreme Court in Holloway v. Moser , 193 N.C. 185, 136 S.E. 375, 50 A.L.R. 262 (1927) as follows:
"By the common law, an officer, in a case of felony, was permitted to use all force necessary to capture the felon, even to slaying him when in flight. In the case of a misdemeanor, however, the rule was different. The officer could defend himself, if resisted, even to the taking of life, but if the offender were simply fleeing and not resisting, he had no right to kill. It was thought that to permit the life of one charged with a mere misdemeanor to be taken, when not resisting but only fleeing, would, aside from its inhumanity, be productive of more evil than good.
The reason for the distinction was obvious. Ordinarily, the security of person and property is not endangered by a misdemeanant being at large, while the safety and security of society require the speedy arrest and punishment of a felon.
It is universally held that an officer has no right to kill one who merely flees to avoid arrest for a misdemeanor or to effect an escape from such arrest, even though it may appear that by no other means can the accused be taken or recaptured. * * * It is better that he be permitted to escape altogether than that his life be forfeited, while unresisting, for such a trivial offense.
'* * * The accused is shielded in that event, even from an attempt to kill with a gun or pistol, by the merciful rule which forbids the risk of human life or the shedding of blood in order to bring to justice one who is charged with so trivial an offense, when it is probable that he can be arrested another day and held to answer.'"
In the instant case, the fact that decedent was a juvenile did not exempt him from lawful arrest. State v. Smith , 32 N.J. 501 (1960). He was subject to arrest for a misdemeanor or for disorderly conduct committed in the officers' presence or where they had reasonable cause to believe a high misdemeanor had been committed and suspicion attached to him. State v. Smith, supra , at p. 531.
But the fact that he was wanted for questioning on suspicion that he might have committed other offenses afforded no ground for shooting at him when he sought to flee. Commonwealth v. Duerr, supra; cf. Davis v. Hellwig, supra. Likewise, the fact that he was sought as a parole violator did not render the shooting justifiable. The procedure for retaking and detaining a parole violator is fully set forth in the statute. N.J.S.A. 30:4-123.22. Only the
Parole Board may revoke a parole, although in a case of immediate emergency a parolee may be arrested as delinquent on parole prior to its actual revocation. Ibid. Parole revocation is not a separate offense but involves the loss of the privilege to be at large. Relatively minor reasons may result in the revocation of parole.
Nor did the alleged assault by decedent on Klikier justify the use of firearms in order to bring him down. It cannot be said that it constituted an atrocious assault and battery. N.J.S. 2A:90-1; cf. State v. Riley , 28 N.J. 188, 197 (1958). The inescapable conclusion from the testimony was that Wimberly had merely pushed Klikier aside in making his escape. At best, it involved no more than a simple assault, a violation of the Disorderly Persons Act. N.J.S. 2A:170-26. Nor was the shooting of decedent justified by the fact that he had escaped from arrest or was seeking to do so. Such an offense is likewise denominated a misdemeanor. N.J.S. 2A:104-6. We thus come to consideration of whether the trial court properly drew a distinction between warning shots and shots consciously directed at a fleeing offender, and left to the jury the question of whether negligence in the firing of such warning shots had been established.
Our courts have universally regarded loaded firearms as dangerous instruments and have prescribed an elevated degree of reasonable care and caution to be exercised in their use. Davis v. Hellwig, supra , at p. 415; Moebus v. Becker , 46 N.J.L. 41, 44 (Sup. Ct. 1884). But we are unable to conclude, from any of the cases cited by plaintiff, or from our own independent research, that it has ever been held in this State that "warning shots," i.e. , those not consciously directed at a fleeing offender or his conveyance but designed to prevent further flight, may not be fired where reasonable care is exercised in so doing.
In Davis v. Hellwig, supra , relied upon by plaintiff, the policeman testified that he had aimed and fired at the legs of the fleeing offender. The bullet was deflected and struck
the plaintiff, a passerby. The suit was pleaded and tried on the sole theory of negligence. The police officer had been under the mistaken belief that the escapee was a felon where as the value of the goods stolen rendered the offense a misdemeanor only. Even though it was conceded that the shot was actually aimed so as to strike the legs of the fugitive, the Supreme Court declined to hold that the issue of liability was a question of law. On the contrary, it held:
"There is no evidence in the instant case to show what caused the bullet to be deflected to the north sidewalk where the infant plaintiff was walking. But even though the defendant, in Mr. Justice Cardozo's words, is held to a 'duty of prevision not far from that of an insurer,' it does not follow that the court is to decide the issue of liability as a question of law. * * *" (at pp. 419-420)
In McAndrew v. Mularchuk, supra , Mularchuk, a special policeman, testified that after he and another policeman had arrested a group of young men the plaintiff McAndrew and two others started walking towards him making threats. He ordered the plaintiff to halt. The order was disobeyed and plaintiff kept advancing, putting his right hand into his pocket as he did so. Mularchuk thereupon drew his gun and shot at the sidewalk "towards him to scare him off." The shot took effect and the suit followed. On appeal it was held (33 N.J. , at 189-190)
"If Mularchuk fired at the sidewalk to warn or to effectuate the arrest of his purposed prisoner, without intending to hit him, but aimed so close or so inaccurately that the bullet either struck him directly or by ricochetting from the sidewalk, manifestly a finding of a negligent act of commission would be justified. * * *" (Emphasis added)
Nowhere in the opinion of the court is there any suggestion that the issue of Mularchuk's asserted negligence should have been disposed of by the court as a matter of law. In Noback v. Town of Montclair, supra , the officer conceded that, ...