Since at least the 1800s there has been a legal maxim that states that hard cases make bad law. This adage recognizes that it is possible that in responding to a particularly horrific and recent circumstance, there is a risk of drafting legislation that is a poor basis for the wide array of circumstances that may be encountered. The recent death of George Floyd during the arrest by Minneapolis police for allegedly making a purchase with a counterfeit bill has elevated numerous issues including whether the state currently grants appropriate powers to police. While both future cultural and novel legislative solutions may be appropriate, it is worth looking at legislative approaches that have been recently offered and rejected.

One recent legislative attempt was New Hampshire HB218 (2019). This bill sought to modify authorization for the use of deadly force by law enforcement. The change would have only authorized deadly force to defend the officer or a third person from the imminent use of deadly force; or to prevent the escape from custody of a person who the officer reasonable believes has committed or is committing a felony involving the use of force or violence, and is using a deadly weapon in an attempt to escape or is otherwise likely to seriously endanger human life or inflict serious bodily injury unless apprehended without delay.

While several changes to the existing law were a part of this bill, the section that repealed RSA 627:5, VIII was one of the most significant changes as it eliminated a section that indicated “VIII. Deadly force shall be deemed reasonably necessary under this section whenever the arresting law enforcement officer reasonably believes that the arrest is lawful and there is apparently no other possible means of effecting the arrest.”

Courts have shown great deference to police with respect to “reasonable beliefs” and thus the inclusion of this section of law effectively provides carte blanche for an errant officer to use deadly force to complete an arrest for something as simple as – passing a counterfeit bill.

With the large number of legislators speaking out against police violence in the wake of recent events – particularly given that those events were far from the only use of excessive force, one would logically conclude that HB218 would have received broad support in the NH house of representative. But in fact, it failed rather spectacularly with 277 voting Yea on a motion to kill the bill with only 62 members Nay to keep the bill alive. Failure of the bill was not a surprise as the Criminal Justice and Public Safety committee had voted 18-1 to recommend that the bill be killed with only representative John Burt (R) – Hillsborough – District 39 (Deering, Goffstown, and Weare) voting to remove the authorization for the use of deadly force by police against in non-violent suspects. (As a side note, representative Burt went on to be the NHLA Legislator of the year in 2019). The committee majority recommendation included “In the current climate where officers are more likely to be resisted by offenders using deadly force it makes no sense to restrict our protectors by denying the officer the means to complete the arrest.” This recommendation ignored the fact that the existing law would still have allowed the use of deadly force in the defense of the officer or a third party.

We suggest the re-introduction of this bill, or a similarly worded bill in the 2021 legislative session. In addition, it is worth recognizing that with or without this improvement, enforcement of every law comes with a risk of death or injury as an outcome of the encounter. While many seek to discount this possibility, the very fact that the majority of house members sought to retain the option of deadly force for arrests for even trivial crimes demonstrates that they are aware of this potential outcome. Whether the issue is seat belt laws, tinted windows or the failed war on drugs, every demand by the state to enforce a victimless ‘crime’ is a potential opportunity for a negative outcome.