People v. Couch 436 Mich. 414

Boyle, J.

We agree with Justice Archer’s conclusion that the decision of the United States Supreme Court in Tennessee v Garner, 471 US 1; 105 S Ct 1694; 85 L Ed 2d 1 (1985), did not "automatically” modify this state’s criminal law with respect to the use of deadly force to apprehend a fleeing felon. Post, p 441.

As Justice Archer explains, Garner’s pronouncements regarding the constitutionality of the use of such force are inapplicable to private citizens such as the defendant. Regardless of the defendant’s status as a private citizen, however, the 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.

Moreover, we fail to see how Garner can be applied "directly” in any event, since the Court in that case concluded only that the use of deadly force to apprehend a fleeing felon who posed no harm to the officer or others was "unreasonable” for purposes of the Fourth Amendment. In other *417words, Garner was a civil case which made no mention of the officer’s criminal responsibility for his "unreasonable” actions. Thus, not only is the United States Supreme Court without authority to require this state to make shooting a nondangerous fleeing felon a crime, it has never even expressed an intent to do so.1

Unlike Justice Archer, however, we decline the opportunity to change the common-law fleeing-felon rule with respect to criminal liability to conform with Garner. Not only does this Court (and therefore the Court of Appeals) arguably lack the authority to do so, even prospectively, given the Legislature’s adoption of and acquiescence in that rule, we must resist the temptation to do so. The question whether the common law, which allows the use of deadly force by a citizen only to apprehend a felon who is in fact guilty, has outlived its "utility” (post, p 440) is a matter of compelling public interest, demanding a balancing of legitimate interests which this Court (and therefore the Court of Appeals) is institutionally unsuited to perform. In short, it is a question for the Legislature.

i

Justice Campbell observed long ago in In re Lamphere, 61 Mich 105, 108; 27 NW 882 (1886), that

*418while we have kept in our statute-books a general statute resorting to the common law for all non-enumerated crimes, there has always been a purpose in our legislation to have the whole ground of criminal law defined, as far as possible, by statute. There is no crime whatever punishable by our laws except by virtue of a statutory provision.[2]

Criminal homicide, or more precisely murder and manslaughter, has been a statutory offense in Michigan since 1846, when the state’s first Penal Code was enacted. 1846 Mich Rev Stat, title xxx, "Of Crimes and the Punishment Thereof,” ch 153, § 1, defined first-degree murder:

All murder which shall be perpetrated by means of poison or lying in wait, or any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and shall be punished by solitary confinement at hard labor in the state prison for life.[3]

Section 2 defined second-degree murder:

All other kinds of murder shall be deemed murder of the second degree, and shall be punished by imprisonment in the state prison for life, or any *419term of years, in the discretion of the court trying the same.[4]

Section 10 referred to the crime of manslaughter:

Every person who shall commit the crime of manslaughter, shall be punished by imprisonment in the state prison, not more than fifteen years, or by fine not exceeding one thousand dollars, or both, at the discretion of the court.[5]

Obviously, the crimes of murder and manslaughter are not defined in these statutes in the sense that the elements of those offenses, along with any recognized defenses, are included in the language of the statutes. That does not mean, however, that they are left wholly undefined. As Justice Jackson stated in Morissette v United States, 342 US 246, 263; 72 S Ct 240; 96 L Ed 288 (1952):

[W]here [a legislature] borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.

Similarly, in People v Schmitt, 275 Mich 575, 577; *420267 NW 741 (1936), this Court stated that "[i]n construing a statute wherein a public offense has been declared in the general terms of the common law, without more particular definition, the courts generally refer to the common law for the particular acts constituting the offense.” Where the Legislature "has shown no disposition to depart from the common-law definition, therefore it remains.” Id. (Emphasis added.)6

To the extent that the Legislature intended to convey "satisfaction with” the existing common-law definitions of murder and manslaughter and to adopt and embrace those definitions, Morissette, supra, p 263, it is debatable whether this Court still has the authority to change those definitions. The Legislature is presumed to have accepted the then-existing common-law rule that "[a]ny private person (and a fortiori a peace-officer) [may arrest a fleeing felon] . . . and if they kill him, provided he cannot otherwise be taken, it is justifiable . ...” 4 Blackstone, Commentaries, p 293 (emphasis in original).7 Thus, murder and manslaughter, *421arguably, are no longer common-law crimes in this state, but rather became statutory crimes as early as 1846, and we are no longer free to redefine what is not justifiable homicide by holding that a citizen is "not privileged, to use deadly force to prevent a fleeing felon’s escape unless the arresting citizen reasonably believes that the felon poses a threat of serious physical harm to that citizen or to others.” Post, p 440.8

We need not resolve our authority to modify the common-law rule, however, because we find in any event that the presumption of legislative adoption is in this case affirmed by fifty years of legislative acquiescence in this Court’s decision in People v Gonsler, 251 Mich 443, 446-447; 232 NW 365 (1930), in which we approved the trial court’s instruction that

"[b]oth officers and private persons seeking to prevent a felon’s escape must exercise reasonable care to prevent the escape of the felon without doing personal violence, and it is only where killing him is necessary to prevent this escape, that the killing is justiñed . ... If a killing is not justiñable, it is either murder or manslaughter.” [Emphasis added.]_

*422II

Regardless of whether this Court has the authority to change the law of homicide, and make criminal something that has never before been a crime in this state, we nonetheless decline to do so in this case. "To declare what shall constitute, a crime, and how it shall be punished, is an exercise of the sovereign power of a state, and is inherent in the legislative department of the government.” People v Hanrahan, 75 Mich 611, 619; 42 NW 1124 (1889). This is particularly true here.

The definitions of a "nondangerous” felony, or who is a nondangerous felon, and how such a felon may be apprehended are quintessentially matters of policy. They involve the delicate weighing and balancing of the particular nature and quality of the felonious intrusion on a citizen’s interests, on the one hand, and the protection of the felon’s interest in longevity on the other. There is an obvious difference, for example, in the citizen’s interest in the sanctity of his home and his interest in his automobile or power boat, just as there is a clear distinction between setting fire to a dwelling and stealing a $200 bicycle, although all are felony/property offenses. Presumably for this reason, the penal codes of some states grant the authority to apprehend a fleeing felon through the use of deadly force if the arrest is for a "forcible” felony, and at least one state has defined forcible felony to include, among others, arson and burglary.9

Since the Legislature has evidenced no general intent to reduce the penalties for "mere” property offenses, or, for that matter, major drug offenses, it may well be that the Legislature would not refine such distinctions with respect to the fleeing-felon *423rule, and would draw the line by saying that a person who is in fact guilty10 and chooses to flee from the scene of a felony assumes a risk to life and limb. For example, the Legislature may decide that the civil penalties for an improper exercise of the right to use deadly force, as well as the fact that the private citizen acts at his peril and is criminally responsible if he is wrong, are enough of a deterrent to the misuse of such authority.

The point is not that another rule may be wiser, or that there are not situations in which the loss of a felon’s life is tragic, but rather that it is the Legislature that must determine whether the common-law rule has outlived its "utility.” Stated otherwise, it is hard to conceive of an issue more demanding of public debate and the give-and-take of the legislative process than whether the citizens of Michigan are willing to assume the risk that certain criminals should remain at large rather than be subjected to the risk of harm at the hands of their victims. The clear question of policy, whether police officers or citizens should be subject to criminal liability for the killing of a nondangerous fleeing felon, is one for the Legislature, not this Court.11_

*424CONCLUSION

We affirm in part the decision of the Court of Appeals insofar as it holds that Garner did not change this state’s criminal law with respect to the use of deadly force to apprehend a fleeing felon. We therefore concur in Justice Archer’s opinion to the extent that it so holds. However, we reverse the decision of the Court of Appeals to "adopt[] a new standard,” People v Couch, 176 Mich App 254, 260; 439 NW2d 354 (1989), with respect to that rule.

Riley, C.J., and Brickley, J., concurred with Boyle, J.

Griffin, J., concurred only in the result.

Levin, J.

(concurring in reversal). We agree that Tennessee v Garner, 471 US 1; 105 S Ct 1694; 85 L Ed 2d 1 (1985), did not modify the criminal law of this state.

We are persuaded that this Court should decline, as a matter of judicial restraint, to exercise whatever authority it may have to modify the criminal law as urged by the prosecutor.1 Whether the fleeing-felon rule should be confined to situations where the citizen seeking to make an arrest reasonably believes the felon poses a threat of serious physical harm is a question better left to the Legislature. We thus see no need to reach the question whether this Court has the authority to modify the fleeing-felon rule._

*425The suggestion in the lead opinion that this Court might not have the authority to modify the criminal law implicates this Court’s decision in People v Stevenson, 416 Mich 383; 331 NW2d 143 (1982). There, the Court abolished the common-law "year and a day” rule,2 and in so doing rejected Stevenson’s argument that "this Court lacks the power to change the common law so as to enlarge the scope of criminal liability . . . .”3

As a result of the Court’s decision in Stevenson, prisoners are now serving lengthy sentences on the basis of convictions that could not have been obtained before this Court modified the "common law” of homicide. In suggesting that this Court might not have the authority to modify the criminal law, the lead opinion calls into question the decision in Stevenson as well as all convictions obtained in contravention of the common-law "year and a day” rule.

It is inappropriate to discuss the authority of this Court to modify the criminal law—a question of undeniable jurisprudential importance—in a case where the question was not discussed by the Court of Appeals,4 was not briefed,5 and was not raised at oral argument._

*426We concur in the reversal of the decision of the Court of Appeals.

Griffin, J., concurred with Levin, J.

Archer, J.

We granted leave to consider whether the common-law rule of People v Whitty, 96 Mich App 403; 292 NW2d 214 (1980), permitting a private person to use deadly force to apprehend a fleeing felon should be modified in light of Tennessee v Garner, 471 US 1; 105 S Ct 1694; 85 L Ed 2d 1 (1985), which, under the Fourth Amendment, forbids police officers to use deadly force in arresting nondangerous fleeing felons, and, if so, whether such a modification would violate the prohibition against ex post facto laws* 1 applicable to the judiciary through the Due Process Clauses of the United States and Michigan Constitutions.2

We would hold that a private citizen making an arrest pursuant to MCL 764.16; MSA 28.875 is not privileged to use deadly force to prevent a fleeing felon’s escape unless the arresting citizen reasonably believes that the felon poses a significant threat of serious physical harm to the citizen or to others. In the event excessive force is used, that citizen may be subject to criminal prosecution. We would further hold that such a rule should have prospective application only.

*427Accordingly, we would affirm that part of the Court of Appeals decision modifying the common-law deadly force rule in accordance with Garner. However, we would reverse that part of the decision which applied the rule retroactively, and we would remand this case to the trial court, which, if there is a trial, should instruct the jury, if appropriate, in accordance with the common-law rule of People v Whitty.

i

PACTS AND PROCEEDINGS

On October 15, 1986, at approximately 1:10 p.m., defendant Archie L. Couch, Jr., was in his office in Detroit when he heard his car alarm. He promptly left his office and walked to the adjacent parking lot where his car was parked. As he approached his car, he observed a man standing near the driveway of the parking lot who yelled something, and then ran eastward. Upon reaching his car, the defendant noticed that the front driver’s window was smashed and observed Alfonso Tucker, Jr., sitting in the middle of the car’s front seat, bending forward, apparently having dismantled the car’s stereo.

The defendant then reached for his revolver which was in his waistband and for which he had a license. Walking to the rear of the car, the defendant held the gun in the air and reportedly said, " 'Get out of the car and go with me so I can call the police.’ ” Tucker then slid over to the passenger door. The defendant walked around the rear of the car toward the same door. Tucker got out of the car stating, " 'Okay, man, don’t shoot.’ ” The defendant then recalled saying, " 'Come on with me, I am going to call the police.’ ” Tucker then lunged toward the defendant, and the defen*428dant fired one shot which apparently missed. Tucker proceeded to run away from the defendant. When he was approximately twenty to thirty feet away, the defendant fired two more shots which fatally wounded him.

The defendant immediately directed his receptionist to call the police. After the police arrived and defendant gave them a full statement, he was arrested and charged with manslaughter under MCL 750.329; MSA 28.561 and with possession of a firearm during the commission of a felony under MCL 750.227b; MSA 28.424(2).

On November 17, 1986, the defendant was bound over for trial as charged. In the trial court, he moved to quash, arguing that the killing of Alfonso Tucker, Jr., was justifiable homicide under the common-law rule allowing a citizen to use deadly force3 to apprehend a fleeing felon. See Whitty, supra. This motion was denied, as was his later motion for reconsideration.

The prosecutor then moved in limine that the jury be instructed in accordance with Garner’s restriction of deadly force, as opposed to Whitty’s allowance of it. The trial court denied this motion, reasoning that it was too early in the proceedings to rule on a jury instruction.

On appeal, the Court of Appeals remanded the case, instructing the trial court to rule on the prosecution’s request for a jury instruction on the basis of Garner. On remand, the trial court held that Garner did not apply to the instant facts and again denied the prosecutor’s instructional request. The prosecutor appealed, and the trial court *429further ordered that the trial be stayed pending appellate review of its ruling that the rule of Whitty and not that of Garner should be cited in the instructions to the jurors.

On April 3, 1989, the Court of Appeals reversed, holding that the rule of Whitty should be modified in accordance with Garner to provide that a private citizen who makes an arrest may use deadly force only to prevent a felon from fleeing where the citizen has a reasonable belief that the felon poses a threat of serious physical harm to that citizen or to other citizens. The Court further held that Garner applied retroactively so as to criminalize the instant shooting.4 We subsequently granted leave to appeal.5

ii

Today we are called upon to analyze and determine the powers of citizens to effect arrests in this state. MCL 764.16; MSA 28.875, the citizens arrests statute, provides:

A private person may make an arrest in the following situations:

(a) For a felony committed in the private person’s presence.

(b) If the person to be arrested has committed a felony although not in the private person’s presence.

(c) If the private person is summoned by a peace officer to assist the officer in making an arrest.

Defendant Couch was authorized by MCL 764.16(a); MSA 28.875(a) to arrest Alfonso Tucker, Jr. However, authorization for use of deadly force in an arrest attempt was not provided by the *430statute, and thus we must turn to the common law.

The common-law rule initially concerned the actions of police officers. In Hale’s Pleas of the Crown, it is stated:

"[I]f persons that are pursued by these officers for felony or the just suspicion thereof . . . shall not yield themselves to these officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is no felony.” [Garner, supra at 12, quoting 2 Hale, Historia Placitorum Coronae 85 (1736).]

In 1930, this Court in People v Gonsler, 251 Mich 443, 446-447; 232 NW 365 (1930), applied this common-law principle to private arrests:

"Both officers and private persons seeking to prevent a felon’s escape must exercise reasonable care to prevent the escape of the felon without doing personal violence, and it is only where killing him is necessary to prevent this escape, that the killing is justified . . . .” [Emphasis added.]

The clearest statement concerning Michigan’s continued adherence to the common-law deadly force rule was made by the Court of Appeals in People v Whitty, supra. In that case, Roosevelt Whitty, the manager of a party store in Highland Park, attempted an arrest of an armed robber. In apprehending the assailant, Whitty fatally wounded him. Mr. Whitty was convicted of first-degree murder.

On appeal, the Court of Appeals reversed, applying the common-law rule permitting the use of *431deadly force. The Court reasoned that the common-law rule should be maintained because:

The fact remains that the police cannot be everywhere they are needed at once. The occasion may arise where the private citizen is confronted with the choice of attempting a citizen’s arrest or letting the felon escape. In order to make the citizen’s arrest, it is regrettable, but sometimes necessary, to make use of deadly force. The common law in Michigan recognizes this but still stops far short of granting the private citizen a license to hunt down and kill those suspected of committing a felony. The use of deadly force is not justified if the person to be arrested is not in fact a felon. Additionally, and most importantly, the use of deadly force must be necessary either to meet deadly force or to prevent the felon’s escape. [Whitty at 416. See also People v Smith, 148 Mich App 16; 384 NW2d 68 (1985); Werner v Hartfelder, 113 Mich App 747; 318 NW2d 825 (1982); Jenkins v Starkey, 95 Mich App 685; 291 NW2d 170 (1980).]

Five years after the decision in Whitty, the United States Supreme Court in Tennessee v Garner held that under the Fourth Amendment of the United States Constitution,6 police officers cannot resort to deadly force in making an arrest unless such force is necessary to prevent the escape of a fleeing felon and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or *432to others. The basis of the Court’s ruling was that the killing of a fleeing suspect was an unreasonable seizure under the Fourth Amendment. The Court reasoned:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. [Id. at 11.]

Gamer’s constitutional restriction of police power to arrest causes us to question the continued validity of the common-law rule presently governing private citizen arrests in Michigan. Three interrelated questions are presented: First, does Gamer provide controlling authority to automatically modify Whitty’s common-law deadly force rule, and, if not, is it persuasive authority for modifying the rule today? Lastly, should Gamer or any modified rule be applied in this case?

hi

Initially, we conclude that Garner’s limitation of the privilege previously available to arresters in apprehending felons, grounded upon a Fourth Amendment seizure analysis, while highly pertinent to the resolution of this case, does not control its outcome unless citizen arrests are found to *433represent state action rather than action solely attributed to private persons.

We do not believe citizen arrests are state action. Thus, in accordance with the holding of the Court of Appeals, we conclude that Garner provides only persuasive and not controlling authority for application in the instant case.

A

The prosecutor first urges this Court to rule that arrests, whether performed by a citizen or a police officer, of themselves are state action, and that any discussion or limitation of the means available to arresters is automatically subordinate to the Fourth and Fourteenth Amendments of the United States Constitution. In support, the prosecution argues that the wording of the arrest statutes, MCL 764.15; MSA 28.874 for police7 and MCL 764.16; MSA 28.875 for private citizens, is “not *434essentially different.” We are not persuaded. Similarly worded statutory authorization which, in this case, is questionable to begin with is, in our view, one of the few parallels between police and citizen arrests that exists.

The manifest differences between police arrests, the focus of Garner, and citizen arrests, the focus of Whitty, prohibit us from easily grouping the terms under one generalized heading. Although, the prosecutor correctly notes that arrests are made for the common purpose of commencing state prosecutions, the manner and means of ef*435fecting arrests varies significantly with respect to police officers and civilians.

For example, police officers not only are licensed to carry weapons, they are intensely trained in their use. The responsibility for the training is borne by city and state police departments, so that trained officers become agents of the state. See Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 661; 363 NW2d 641 (1984). Officers are instructed to perform tasks such as arrests as a matter of public duty,-8 not, as is the case with civilians, as a matter of private privilege. Thus, despite common ends, private arresters are limited to "standing] in the shoes” and "playing the part” of police officers.9 Plainly, there are a significant number of unbridged gaps and obvious differences between the means used by skilled, trained, and sophisticated police officers and those used by untrained, and inexperienced civilians. For this reason, we conclude that police arrests and private arrests cannot be simplistically defined or categorized as being one and the same. A private person’s manner in arresting a felon cannot automatically be attributed to the state.

The prosecutor also contends that because a citizen arrest is authorized by statute, it is conduct discharged "under [the] color” of law, and therefore, automatically attributable to the state. In support, the prosecution cites United States v Price, 383 US 787, 794, n 7; 86 S Ct 1152; 16 L Ed 2d 267 (1966):

In cases under § 1983,[10] "under color” of law *436has consistently been treated as the same thing as the "state action” required under the Fourteenth Amendment.

To the contrary, the Supreme Court in Flagg Bros, Inc v Brooks, 436 US 149, 164; 98 S Ct 1729; 56 L Ed 2d 185 (1978) reasoned:

[Despite] [o]ur cases [that] state "that a State is responsible for the ... act of a private party when the State, by its law, has compelled the act[,]” [t]his Court . . . has never held that a State’s mere acquiescence in a private action converts that action into that of the State. [Citations omitted.]

In essence, the Court established that an action by a private party pursuant to a statute, without "something more,”11 is not sufficient to justify a characterization of that party as a "state actor.”

*437We do not believe that the conduct of defendant is chargeable to the State of Michigan. Beyond providing the basic statutory framework, the state has absolutely no involvement in the idiosyncratic application of the citizen arrest statute. The state simply cannot bear responsibility for the individual acts of an uncertain number of private persons, each of whom has the privilege at any given moment to attempt the apprehension of a suspected felon. Patent distinctions exist between the means used by trained police officers and those used by members of the general public to effect arrests. Even though police and citizen arrests are carried out with the common goal of maintaining public peace, this does not automatically equate private efforts with those of the state. See People v Holloway, 82 Mich App 629; 267 NW2d 454 (1978) (the acts of a security guard hired for the purpose of keeping the peace was found not to be subordinate to the constitution). We do not believe the citizen’s arrest statute provides the "something more” needed to "lend the weight of the State to [individual] decisions.” See Lugar v Edmondson Oil Co, 457 US 922, 937, 939; 102 S Ct 2744; 73 L Ed 2d 482 (1982). __

*438Accordingly, we conclude that the instant case is not controlled by or subordinate to the Fourth and Fourteenth Amendments. We further conclude that Garner does not provide controlling authority for the resolution of this case.

B

We do agree with the Court of Appeals, however, that Garner does provide persuasive authority. Generally, the common-law rule permitting use of deadly force to effectuate an arrest applies to "[b]oth officers and private persons seeking to prevent a felon’s escape . . . .” 3A Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1691(d), p 231. (Emphasis added.) See Gonsler at 446-447.

Because the common-law rule was the source of authority in this state for both police and civilian use of deadly force to stop fleeing felons, as a practical matter we believe Garner’s expressed limitations on the use of deadly force by police officers should be applied to civilians as well.

The lead opinion correctly contends that the Court has no jurisdiction to amend statutes but that it has the authority to amend or change the common law. We are not purporting to modify the elements of the statutory offense. The rule permitting private citizens to use deadly force to prevent a fleeing felon’s escape is a defense to homicide, rather than an element of either manslaughter or murder. We would merely amend the common law, as the Court is authorized to do by the Michigan Constitution.12

It is true that the Legislature has authorized private citizens to make arrests, see MCL 764.16; MSA 28.875. However, the statutory language does not support the contention that the Legislature *439authorized the use of deadly force by private citizens arresting a fleeing felon. Legislative history is silent on this issue. Such authorization was made by case law, not statute. See Gonsler, Whitty, supra.

Providing some practical reasons why the common-law rule should not be applied in the present, the Court in Garner expressed:

It has been pointed out many times that the common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death. "Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected.” [Gamer at 13-14. Citations omitted. See also Whitty at 415, citing LaFave & Scott, Criminal Law, § 56, p 405; Pearson, The right to kill in making arrests, 28 Mich L R 957, 974-975 (1930); Commonwealth v Chermansky, 430 Pa 170; 242 A2d 237 (1968).]

Like the Garner Court, we are not persuaded that the shooting of a nondangerous fleeing suspected felon is so vital as to outweigh the sanctity of the suspect’s interest in his own life.13 The *440consequences of the continued use of an unmodified common-law deadly force rule, death or serious injury, far outweigh the rule’s alleged utility especially in this case where the suspected felon did not appear to pose a serious threat of harm and did voluntarily retreat pleading, "Okay, man, don’t shoot.”

The argument that "police cannot be everywhere they are needed at once,” Whitty at 416, no longer has the force it once did because Garner has since limited what police officers can do even when they arrive promptly at the scene of a felony. In People v Coons, 158 Mich App 735, 739; 405 NW2d 153 (1987), the Court of Appeals reasoned that despite Garner, the Court could "not give [a] defendant permission to use deadly force in a situation where it would be denied to a law enforcement officer having broader powers to effect an arrest.” (Emphasis added.) We agree.

Accordingly, we would hold that a private citizen effecting an arrest pursuant to MCL 764.16; MSA 28.875 is not privileged to use deadly force to prevent a fleeing felon’s escape unless the arresting citizen reasonably believes that the felon poses a threat of serious physical harm to that citizen or to others. In the event excessive force is used, the citizen arrester may be subject to criminal prosecution commensurate with the injury caused.

iv

Upon the basis of the erroneous belief that *441defendant Couch was a "state actor” whose acts were subordinate to the Fourth and Fourteenth Amendments, the prosecutor argues that our Garner-based decision should be applied retroactively. Alternatively, the prosecutor argues that Garner’s 1985 release automatically modified the common-law rule articulated in Whitty. We disagree with both assertions and would hold that such an amendment should have prospective application only.

Garner provided substantial, persuasive guidance in the fashioning of our new standard. Yet, its holding did not automatically modify Whitty. The citizen arrester in Whitty and in this case were not "state actors,” and, therefore, not subject to the constitutional restraints imposed by Garner. Police officers, on the other hand, are state agents, and hence, directly subordinate to Garner’s constitutional limitations.

Until now, the common-law rule of Whitty has remained intact. On October 15, 1986, defendant Couch’s use of deadly force in attempting to arrest Alfonso Tucker, Jr., was consistent with Whitty. We believe that any other conclusion would deprive the defendant of his due process right to a fair and specific notice of the conduct for which he may be criminally penalized.14 Nor can we condone or ourselves engage in what we consider to be forbidden judicial action ex post facto. See People v Stevenson, 416 Mich 383, 395; 331 NW2d 143 *442(1982), citing Marks v United States, 430 US 188; 97 S Ct 990; 51 L Ed 2d 260 (1977), and Bouie v City of Columbia, 378 US 347; 84 S Ct 1697; 12 L Ed 2d 894 (1964); People v Demster, 396 Mich 700, 714-718; 242 NW2d 381 (1976). We conclude that such a modified rule should not be applicable to defendant Couch’s actions of October 15, 1986, and that the rule should have prospective application only.

CONCLUSION

We conclude that defendant Couch’s actions are to be analyzed under the common-law standard articulated in Whitty. Accordingly, we would affirm in part and reverse in part, the decision of the Court of Appeals.

Cavanagh, J., concurred with Archer, J.