Some states continue to allow private citizens to use deadly force to protect property or prevent the escape of nonviolent fleeing felons.12
Examples >> in Michigan, in People vs Couch, and in South Carolina in State vs Cooney, state court decisions have expressly authorized private persons to use deadly force to stop nonviolent fleeing felons. See, e.g., People v. Couch, 461 N.W.2d 683, 684 (Mich. 1990) (holding that Garner did not modify the common law fleeing felon privilege of a private person to use deadly force); State v. Cooney, 463 S.E.2d 597, 599 (S.C. 1995) (“[W]e find the holding inGarner does not apply to seizures by private persons and does not change the State’s criminal law with respect to citizens using force in apprehending a fleeing felon.”). Texas, by statute, authorizes the private use of deadly force, when necessary, to prevent the escape of many felons
The common law fleeing felon rule, as it applies to private persons, is arguably constitutionally permissible, because of the state action doctrine.13
The state action doctrine and its exceptions are among the most fundamental, important, and misunderstood principles of constitutional law.14
Under the state action doctrine, most of the Constitution’s protections of individual liberties restrict the conduct of government actors, but they do not restrict the conduct of private actors.15
