SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Constitution. A Fourth Amendment “seizure” occurs
whenever “there is a governmental termination of freedom
of movement through means intentionally applied.”
(Brower v. Inyo (1989) 489 U.S. 593, 597 [103 L.Ed.2 nd
628, 635].)
“The use of deadly force to prevent the escape of all
felony suspects, whatever the circumstances, is
constitutionally unreasonable.” (Emphasis added;
Tennessee v. Garner, supra, at p. 11 [85 L.Ed.2 nd at
p. 9].)
Similarly, the indiscriminate use of a “booby trap”
(a felony, per P.C. § 12355) (or a “trap gun,” a
misdemeanor per Fish & Game Code, § 2007), set
up in the house or elsewhere to ward off expected
intruders, has been held to constitute an illegal use
of force which, by its very nature, cannot be limited
to those trespassers who constitute a threat of death
or great bodily injury. (People v. Ceballos, supra.)
See CALCRIM # 500 et seq.
“Forcible and Atrocious Crime,” Defined: A “forcible and
atrocious crime,” warranting the use of deadly force; “is
any felony that by its nature and the manner of its
commission threatens, or is reasonably believed by the
“defendant” (i.e., the victim of an assault who uses deadly
force in response, and who is now being charged with a
homicide) to threaten life or great bodily injury so as to
instill in him or her a reasonable fear of death or great
bodily injury.” (Tennessee v. Garner, supra.)
Forcible and atrocious crimes have been held to
include murder, rape, robbery (at least, when the
suspect is armed) and mayhem. (People v. Ceballos
(1974) 12 Cal.3 rd 470.)
Depending upon the circumstances, they might also
include the so-called “inherently dangerous
felonies” (with the exception of burglary; discussed
below) listed in the “felony murder” statute; i.e.,
arson, carjacking, kidnapping, train wrecking,
torture, felony child molest and other forcible sex
offenses, and murder perpetrated by means of
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