Supreme Judicial Court of Massachusetts, Middlesex.
James JULIAN
v.
Francis RANDAZZO et al.
Argued Feb. 4, 1980.Decided April 15, 1980.
Attorneys and Law Firms
**932*391 Philip M. Weinberg, Cambridge, for plaintiff.
Robert J. Blumsack, Asst. City Sol., for defendants.
Before HENNESSEY, C. J., and QUIRICO, BRAUCHER, KAPLAN and LIACOS, JJ.
Opinion
BRAUCHER, Justice.
The plaintiff brought this tort action against the defendant police officers for assault, assault and battery, false imprisonment and “negligent denial of medical care.” A jury returned verdicts for the defendants, and the plaintiff appeals, challenging the admission in evidence of a police investigation report and the instructions to the jury on the use of deadly force by a police officer. We transferred *392 the case from the Appeals Court to this court, and we uphold the plaintiff's evidentiary argument and reverse the judgments.
We summarize the evidence. The two defendants were Medford police officers. About 7 P.M. on July 5, 1976, while in a patrol car, they received a radio report of a hold-up in Malden. A short time later they began pursuit of three suspects in a Corvette automobile. A high speed chase ensued, in which shots were fired from the fleeing car. At an intersection in Cambridge, the Corvette “spun out” and stopped; the three suspects got out and ran, and the patrol car ran into the Corvette. The officers continued the chase on foot, and the defendant Randazzo fired his gun twice. The plaintiff, a bystander in front of his house, was hit in the elbow by a bullet. A little later each of the officers came up to the plaintiff, pointed a gun at him, and told him not to move; a neighbor persuaded the officers that the plaintiff was a bystander, and they continued their pursuit.
Several witnesses testified to the circumstances of the shooting. The defendant Randazzo testified that after he got out of the patrol car he yelled to the suspects to halt or he would shoot, that one of them stopped and aimed a pistol at him, that he fired two shots at the suspect, and that he first saw the plaintiff after resuming pursuit. Bystander witnesses testified that Randazzo gave no warning, that none of the suspects stopped and turned toward Randazzo, and that none of the suspects was carrying a gun. One bystander testified that the suspects were out of sight before the defendants arrived at the scene; another testified that Randazzo fired while still in the patrol car. Estimates of time and distance varied. There was also ballistics testimony indicating that the bullet which struck the plaintiff's arm was not of the type used by the police.
1. Police investigation report. A police lieutenant testified that he was assigned to make the usual investigation made when a police officer discharges his weapon, and his written report was admitted in evidence as a business record over the plaintiff's objection that it was the officer's opinion *393 based on hearsay and that its probative value did not balance the prejudice to the plaintiff. We think the objection was well taken.
The report contains a narrative account of the incident. In general that account agrees with Randazzo's account where his account differs from those of other witnesses. It concludes, “After an extensive study of this case it is my opinion that Officer Randzaao (sic ) was justified in using his firearm. I recommend that no departmental action be taken.” It is apparent that most of the narrative was supplied by police officers; the lieutenant testified that in preparing the report he spoke with the defendants, read their reports, interviewed the plaintiff and at least one of the other bystander witnesses, and had the assistance of other officers.
*394 The defendants argue that any error in this respect did not affect the substantial rights of the plaintiff. The argument has force, since the jury were fully instructed that it was their task to decide whether the defendants' conduct was justified and that they were to judge police testimony by the same standards as the testimony of other witnesses. In view of the discrepancies in the eyewitness testimony, the aura of officialdom inherent in the report, and the fact that it was taken to the jury room during the jury's deliberations, however, we cannot say that the error was harmless. Kelly v. O'Neil, 1 Mass.App. 313, 317, 296 N.E.2d 223 (1973).
2. The privilege to arrest. After charging the jury on self-defense, the judge gave a separate charge on the question whether the defendant Randazzo was justified in using deadly force to effect an arrest. He correctly defined deadly *395 force in the language we used in Commonwealth v. Klein, 372 Mass. 823, 827, 363 N.E.2d 1313 (1977), and used substantially the language of s 120.7 of the Model Code of Pre-Arraignment Procedure (1975) summarized by us in the Klein case. See id. at 831 n.7, 363 N.E.2d 1313. He also stated that “police officers have a right to arrest, without a warrant, any person whom (sic ) they reasonably believe has committed a felony,” explained the circumstances to be considered in passing upon whether the police officers had reasonable belief that a felony has been committed, and added that “if you find that the defendant was justified in using deadly force, then you should find for **934 the defendant, even though the plaintiff was an innocent victim, as his injury was as a result of an unfortunate accident.”
At the close of the entire charge the plaintiff's counsel requested “an instruction on probable cause, not only as to the existence of the felony, but that the police officer had probable cause to arrest the person to whom the force was directed.” He also requested the judge to give a more elaborate definition of excessive force and the factors to be considered in determining whether excessive force was used. The judge indicated that he had adequately covered both points, and gave no further charge.
There was no error. If the police had sufficient information to constitute probable cause to believe, and did believe, that a person had committed a felony, even though not in their presence, they had the right to arrest him without a warrant. Commonwealth v. Snow, 363 Mass. 778, 788, 298 N.E.2d 804 (1973), and cases cited. The burden was on the defendants to prove justification. They did not need to show that a felony had actually been committed; it was enough if they believed upon reasonable cause that the person being arrested had committed a felony. See Muniz v. Mehlman, 327 Mass. 353, 356, 99 N.E.2d 37 (1951), and cases cited. The judge's instructions clearly stated these principles. There is no requirement of probable cause to believe that the plaintiff, as the person injured, was a felon, unless he was the person being arrested.
*396 We have said that the person attempting a valid arrest has the right to use the force which is reasonably necessary to overcome physical resistance by the person sought to be arrested; cases of physical resistance almost inevitably involve principles relating to self-defense. See Commonwealth v. Klein, 372 Mass. 823, 832 n.8, 363 N.E.2d 1313 (1977), and cases cited; Model Penal Code s 3.07, Comment 3 (Tent. Draft No. 8, 1958). There was evidence in the present case, however, that would have warranted a finding that deadly force was used solely to prevent escape. In the Klein case we announced, with prospective effect only, that in cases of arrest by a private person we shall limit the justification for the use of deadly force to prevent escape in accordance with Model Penal Code s 3.07. Id. at 830-832, 363 N.E.2d 1313. We left open the question whether the same limitations apply to arrests by peace officers. Id. at 830 n.6, 363 N.E.2d 1313. Cf. Uraneck v. Lima, 359 Mass. 749, 269 N.E.2d 670 (1971) (rejecting distinction between serious and nonserious felony). See Annot., 83 A.L.R.3d 174 (1978).
In the present case, the conduct in question took place before our decision in the Klein case. Nevertheless, we approve the action of the judge in charging the jury in accordance with s 120.7 of the Model Code of Pre-Arraignment Procedure (1975).1 The present case is not a criminal case, and the regulations of the Medford Police Department, placed in evidence by the defendants, gave adequate notice of the limitations placed on the use of deadly force to effect an arrest.
In this setting, the judge's charge properly informed the jury that an officer authorized to make an arrest may use “such force as is reasonably necessary to effect the arrest,” and that the use of deadly force is subject to the additional *397 limitations stated. It was within the judge's discretion to decide that the additional elaboration requested by the plaintiff as to what constitutes excessive force might have been confusing rather than helpful.
“A law enforcement officer authorized to make an arrest . . . may use such force as is reasonably necessary to effect the arrest, . . . The officer may use deadly force for these purposes only if (a) the arrest is for a felony; and (b) the officer reasonably believes that the force employed creates no substantial risk to innocent persons; and (c) the officer reasonably believes that: (i) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or (ii) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.”