Gale Encyclopedia Of American Law 3Rd Edition Volume 3 P39 pot

admitted to the bar, and opened a law firm in Pekin. In 1836 he purchased a law practice in Bloomington, Illinois, where he remained a resident the rest of his life. He was soon drawn into politics. After losing a bid for a seat in the Illinois Senate in 1840, he was elected to the Illinois House of Representatives in 1844. He participated in the Illinois Constitutional Convention, which con- vened in 1847. A force for judicial reform, Davis was elected to Illinois’s Eighth Judicial Circuit, where he served as presiding judge until 1862. During his years as a practicing attorney and judge, Davis became a close friend and adviser to ABRAHAM LINCOLN. Ignoring the traditional concept of judicial neutrality concerning poli- tics, Davis acted as Lincoln’s campaign manager during the 1860 election. His actions have been credited with securing the Republican party nomination for Lincoln. In 1862 Lincoln rewarded his friend with an appointment to the U.S. Supreme Court. Davis’s tenure encompassed both the Civil War and Reconstruction. He is best remembered for his 1866 majority opinion in Ex parte Milligan, 71 U.S. 2, 18 L. Ed. 281. In 1864 Lamdin Milligan was arrested and tried for treason by a military commission established by order of President Lincoln. He was convicted and sentenced to death, but the sentence was not carried out. In his majority opinion, Davis noted that the civilian courts were open and operating in Indiana when Milligan was arrested and tried by the military. In ordering Milligan’s release, Davis condemned Lincoln’s directive establish- ing military jurisdiction over civilians outside of the immediate war area. He strongly affirmed the FUNDAMENTAL RIGHT of a civilian to be tried in a regular court of law, with all the required procedural safeguards. In 1872 Davis was nominated for president by the National Labor REFORM PARTY, but he turned down the opportunity. However, politi- cal ambition led him to resign from the Supreme Court in 1877 and run for the Senate, representing Illinois. He was elected as an independent and served one six-year term. From 1881 to 1883, he served as president pro tempore of the Senate. Davis died June 26, 1886, in Bloomington, Illinois. David Davis 1815–1886 ❖ ❖ ◆ 1815 Born, Sassafras Neck, Md. ◆ 1861–65 U.S. Civil War 1835 Moved to Illinois, admitted to Illinois bar 1886 Died, Bloomington, Ill. 1862–77 Served as associate justice of the U.S. Supreme Court 1848–62 Served as presiding judge on the Eighth Judicial Circuit ▼▼ ▼▼ 18001800 18501850 18751875 19001900 18251825 1844 Elected to Ill. House of Representatives 1877–83 Served in the U.S. Senate 1866 Wrote the majority opinion in Ex Parte Milligan ◆ 1872 Turned down National Labor Reform Party's nomination for U.S. president 1860 Directed Lincoln's presidential campaign ◆ ◆ David Davis. THE LIBRARY OF CONGRESS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 368 DAVIS, DAVID DAVIS, GEORGE See CONFEDERATE ATTORNEYS GENERAL. v DAVIS, JOHN CHANDLER BANCROFT John Chandler Bancroft Davis enjoyed a long and prolific career as a diplomat, jurist, and legal historian. The son of JOHN DAVIS,aMassachusetts governor and U.S. senator, Davis was born December 29, 1822, in Worcester, Massachusetts. He entered Harvard College in 1840, but was suspended (unjustly, by some accounts) during his senior year. He then studied law and was admitted to the Massachusetts bar in 1844. Three years later, he received his law degree from Harvard. Davis practiced law in New York City until August 1849, when he was appointed secretary of the U.S. legation in Great Britain. He was also acting chargé d’affaires of the embassy for a brief time. Davis left his diplomatic post in November 1852 to resume his law practice and to become U.S. correspondent for the London Times. Illness forced him to give up his law practice, and in 1862 he and his wife settled on a farm in rural New York State. Six years later, after regainin g his health, Davis was elected to the New York State Assembly. In 1869 he left the legislature to accept an appointment as assistant secretary of state under President ULYSSES S. GRANT. As the assistant secretary, Davis arbitrated a dispute between Portugal and Great Britain over their African possessions. In 1871 a joint high commission was created to settle a dispute between the United States and Great Britain over damag es sustained by Confederate vessels during the Civil War. Davis resigned his position w ith the STATE DEPARTMENT to become U.S. secretary to the commission. He prepared the case for the United States and wrote a 500-page book, The Case of the United States, in which the government demanded compensa- tion for losses sustained by Confederate cruisers and for injuries to commerce. The Tribunal of Arbitration at Geneva later awarded the United States over $15 million in gold for damages. Davis was reappointed assistant secretary of state in January 1873 but resigned in July 1874 to succeed his uncle, George Bancroft, as minister to Germany. John Chandler Bancroft Davis 1822–1907 ❖ ❖ ◆ 1822 Born, Worcester, Mass. ◆ 1861–65 U.S. Civil War 1844 Admitted to Mass. bar 1907 Died, Washington, D.C. 1871 Prepared U.S. case for Joint High Commission to settle U.S Great Britain dispute over damage sustained by Confederate vessels during Civil War 1868 Elected to New York state assembly 1854–61 Wrote for the London Times ◆ ◆ ◆ 1874–77 Served as U.S. minister to Germany ▼▼ ▼▼ 18001800 18501850 18751875 19001900 19251925 18251825 1914–18 World War I 1849–52 Served as secretary of the U.S. legation in Great Britain 1869 Appointed assistant secretary of state under President Grant 1878 Appointed to judgeship on the U.S. Court of Claims 1883–1902 Served as reporter for the U.S. Supreme Court John C. Davis. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DAVIS, JOHN CHANDLER BANCROFT 369 After three years in Berlin, Davis gave up his diplomatic career to become a judge on the U.S. COURT OF CLAIMS. He sat on the court for five years and then served for nearly 20 years as reporter of decisions for the U.S. Supreme Court. As reporter for the Court, he edited more than 75 volumes of the United States Reports, the official publication of the Court’s opinions. Davis also classified important histor- ical data on the federal judiciary. At the time of his death in 1907, at age 85, he had authored significant works on diplomacy, RELIGION, and history, including The Massachusetts Justice (1847), Mr. Fish and the Alabama Claims (1893), and Origin of the Book of Common Prayer of the Protestant Episcopal Church in the United States of America (1897). v DAVIS, JOHN WILLIAM John William Davis was born April 13, 1873, in Clarksburg, West Virginia. Davis earned a bachelor of arts degree from Washington and Lee University in 1892, a bachelor of laws degree in 1895, and a doctor of laws degree in 1915. He also received doctor of laws degrees from numerous other institutions, including the University of Birmingham, England, 1919; Yale, 1921; Dartmouth, 1923; Princeton, 1924; and Oberlin College, 1947. Three doctor of CIVIL LAW degrees were bestowed upon Davis, by Oxford University in England, 1950; Columbia, 1953; and Hofstra College, 1953. After his ADMISSION TO THE BAR in 1895, Davis returned to his alma mater, Washington and Lee University, as an assistant professor of law, teaching from 1896 to 1897. In the latter year, he established his law practice in Clarksburg, West Virginia, serving as counselor until 1913. Davis entered politics in 1899 by participat- ing in the West Virginia House of Delegates. He was a member of the Democratic National Conventions from 1904 to 1932. In 1911 he served the federal government as a congressman, representing West Virginia for two years. Davis left this post to perform the duties of SOLICITOR GENERAL from 1913 to 1918. The next phase of Davis’s career encom- passed foreign service. He was appointed ambassador to Great Britain in 1918 and acted in this capacity until 1921. Also in 1918, Davis was chosen as an American delegate to Berne, Switzerland, to the conference with Germany regarding prisoners of war captured during WORLD WAR I. In 1924 Davis was the Democratic candidate for PRESIDENT OF THE UNITED STATES; he was defeated by CALVIN COOLIDGE. Davis died March 24, 1955, in Charleston, South Carolina. DAY CERTAIN A specified date. A term used in the rules of civil and criminal procedure to designate a particular time by which all motions for a new trial must be submitted to the court. DAY IN COURT The opportunity afforded an individual to have a claim litigated in a judicial setting. A person is said to have his or her day in court when he or she is given notice to appear and has the opportunity to defend his or her rights, seek relief, or set forth his or her claims. When someone has had his or her day in court with refer ence to a particular matter, that John William Davis 1873–1955 ❖ ❖ 1873 Born, Clarksburg, W. Va. ◆ 1861–65 U.S. Civil War 1899 Elected to W. Va. House of Delegates 1955 Died, Charleston, S.C. 1921 Returned to private law practice 1918 Served on Berne peace commission; appointed U.S. ambassador to Great Britain 1913 Appointed solicitor general of the United States ◆ ◆ ◆ 1924 Ran for president against Coolidge ▼▼ ▼▼ 18501850 19001900 19251925 19501950 19751975 18751875 1914–18 World War I 1911–13 Represented W. Va. in the House 1934 Helped organize American Liberty League, an anti-New Deal organization 1939–45 World War II 1961–73 Vietnam War 1950–53 Korean War ◆ 1954 Argued South Carolina's case before U.S. Supreme Court in Brown v. Board of Education ◆ ◆ THERE IS NOTHING I RESENT MORE THAN THE IDEA THAT A LAWYER SELLS HIMSELF BODY AND SOUL TO HIS CLIENTS . —JOHN WILLIAM DAVIS GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 370 DAVIS, JOHN WILLIAM individual will generally be prevented from relitigating the claim in a subsequent action unless grounds exist that warrant an appeal of the matter. v DAY, WILLIAM RUFUS William Rufus Day served as an associate justice of the U.S. Supreme Court from 1903 to 1922. Day served on a Court dominated by Justice Oliver Wendell Holmes Jr., yet Day played a key role during a period when the federal govern- ment began to extend its police and regulatory powers. Day was born April 17, 1849, in Ravenna, Ohio. He graduated from the University of Michigan in 1870 and attended its law school for one year. He was admitted to the Ohio bar in 1872 and entered practice in Canton, Ohio. Ohio was a hotbed of REPUBLICAN PARTY politics in the late nineteenth century. Day became active in the party and, more important, became a trusted friend and adviser to WILLIAM MCKINLEY , who was elected president in 1896. McKinley appointed Day secretary of state in April 1898. Five months later Day was chosen to head the U.S. Peace Commission to negoti- ate an end to the SPANISH-AMERICAN WAR with Spain. He left his cabinet post to fulfill this duty. McKinley rewarded Day for his friendship, political counsel, and service as secretary of state with an appointment in 1899 to the U.S. Sixth CIRCUIT COURT of Appeals. With McKinley’s ASSASSINATION in 1901, Vice President THEODORE ROOSEVELT assumed the presidency. In 1903 Roosevelt appointed Day to the Supreme Court, in part because Roosevelt needed to strengthen his ties with O hio Republicans. Day held a centrist position on the Supreme Court. More liberal justices such as Holmes and LOUIS D. BRANDEIS sought to allow more active government involvement in the national econ- omy. Conservative justice s continued to restrict government regulation of business and the growth of federal power. Day took a middle course, though some commentators believe he tilted more to supporting states’ rights. His most famous opinion, HAMMER V. DAGENHART, 247 U.S. 251, 38 S. Ct. 529, 62 L. Ed. 1101 (1918), illustrates his more conserva- tive tendencies. In the early 1900s, Congress sought to regulate the use of child labor, passing a child labor act in 1916 (39 Stat. 675, c. 432, formally known as the Keating-Owen Act). The William R. Day. LIBRARY OF CONGRESS William Rufus Day 1849–1923 ❖ ❖ 1849 Born, Ravenna, Ohio ◆◆ 1886–90 Served as Court of Common Pleas judge 1898 Appointed U.S. secretary of state; left post to head U.S. Peace Commission to negotiate end to the Spanish-American War 1923 Died, Mackinac Island, Mich. 1861–65 U.S. Civil War ◆ ◆ 1914 Wrote majority opinion in Weeks v. United States 1872 Admitted to the Ohio bar 1914–18 World War I ◆◆ ◆ 1922 Retired from the Court ▼▼ ▼▼ 18751875 19001900 19251925 18251825 18501850 1899 Nominated to U.S. Sixth Circuit Court of Appeals by President McKinley 1903 Nominated to U.S. Supreme Court by President Roosevelt 1918 Wrote majority opinion in Hammer v. Dagenhart PROPERTY IS MORE THAN THE MERE THING WHICH A PERSON OWNS .ITIS ELEMENTARY THAT IT INCLUDES THE RIGHT TO ACQUIRE , USE, AND DISPOSE OF IT. T HE CONSTITUTION PROTECTS THESE ESSENTIAL ATTRIBUTES OF PROPERTY . —WILLIAM DAY GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DAY, WILLIAM RUFUS 371 act prohibited the movement in interstate commerce of goods that were made by children. In Hammer, a manufacturer was charged with violating the act. Under the Constitution’s COMMERCE CLAUSE, Congress has the right to regulate interstate commerce. Day gave the clause a restrictive reading, ruling that com- merce did not include manufactured goods that were themselves harmless. In addition, he said, Congress had intruded into an area of regula- tion that was reserved to the states. To allow Congress to regulate industry would destroy FEDERALISM and the system of government set out in the Constitution. Despite this hostility to the Child Labor Act, Day upheld the federal government’s power to regulate interstate commerce in other cases that involved the shipment of impure food, drugs, and liquor. He was also supportive of federal antitrust prosecutions that involved RESTRAINT OF TRADE . However, Day’s opposition to federal regu- lation of the workplace did not carry over to state regulation of industry. This is revealed in his dissent in LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905). In Lochner the Court, on a 5–4 vote, struck down a New York state law that specified a maximum sixty- hour week for bakery employees. The Court ruled that the law was a “meddlesome interfer- ence” with business, concluding that the regula- tion of work hours was an unjustified infringe- ment on “the right to labor, and with the right of free contract on the part of the individual, either as employer or employee.” Although Holmes’s dissent has received more attention, Day’smade clear that the state had the right to promote public welfare, even if it came in conflict with the concept of liberty of contract. Finally, Day authored the opinion in Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652 (1914), which established the federal EXCLUSIONARY RULE for criminal evidence seized in violation of the FOURTH AMENDMENT. Day’s opinion suggested that exclusion of tainted evidence was implicit in the requirement of the Fourth Amendment. If illegally seized evidence could be admitted in a criminal trial, he said, “the protection of the 4th Amendment … is of no value … and might as well be stricken from the Constitution.” Day retired from the Court in 1922. He died on Mackinac Island, Michigan, on July 9, 1923. CROSS REFERENCES Child Labor Laws; Labor Law. DAYS OF GRACE An extension of the time originally scheduled for the performance of an act, such as payment for a debt, granted merely as a gratuitous favor by the person to whom the performance is owed. In old English practice, days of grace allowed a person an extra three days beyond the date specified in a writ summoning him or her before a court in which to make an appearance without being subject to punish- ment for failure to appear. This allowance of time was granted in consideration of the far distances that had to be traveled to court. The laws and customs that regulate the commercial affairs of merchants have recog- nized days of grace as a means of facilitating various transactions. Three days of gra ce were originally allowed to give a make r or acceptor of a note, bill, or draft, in which the person is ordered to make payment according to its terms, a longer time to pay than specified by the date in the document. This practice was begu n merely as a favor to those who regularly engaged in business with each other, but it so on became a custom between merchants. Eventually, the courts recognized this right, often as a result of statute; in some cases, it has become a right that must be demanded. The phrase days of grace is sometimes used interchangeably with GRACE PERIOD, a term used in insurance law to denote an extension of time within which to pay a premium due on a policy, but the terms do not have identical meanings. DE BONIS NON ADMINISTRATIS [Latin, Of the goods not administered.] When an administrator is appointed to succeed another who has left the estate partially unsettled, the administrator is said to be granted “administra- tion de bonis non,” that is, of the goods not already administered. DE FACTO [Latin, In fact.] In fact, in deed, actually. This phrase is used to characterize an officer, a government, a past action, or a state of affairs that must be accepted for all practical purposes, but is illegal or illegitimate. Thus, an GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 372 DAYS OF GRACE office, position, or status existing under a claim or color of right, such as a de facto corporation. In this sense it is the contrary of de jure, which means rightful, legitimate, just, or constitution- al. Thus, an officer, king, or government de facto is one that is in actual possession of the office or supreme power, but by USURPATION,or without lawful title; while an officer, king, or governor de jure is one who has just claim and rightful title to the office or power, but has never had plenary possession of it, or is not in actual possession. A wife de facto is one whose marriage is voidable by decree, as distinguished from a wife de jure, or lawful wife. But the term is also frequently used independently of any distinction from de jure; thus a blockade de facto is a blockade that is actually main tained, as distinguished from a mere paper blockade. A de facto corporation is one that has been given legal status despite the fact that it has not complied with all the statutory formalities required for corporate existence. Only the state may challenge the validity of the existence of a de facto corporation. De facto SEGREGATION is the separation of members of different races by various social and economic factors, not by virtue of any govern- ment action or statute. DE JURE [Latin, In law.] Legitimate; lawful, as a matter of law. Having complied with all the requirements imposed by law. De jure is commonly paired with DE FACTO, which means “in fact.” In the course of ordinary events, the term de jure is superfluous. For example, in everyday discourse, when one speaks of a corporation or a government, the under- stood meaning is a de jure corporation or a de jure government. A de jure corporation is one that has completely fulfilled the statutory formalities imposed by state corporation law in order to be granted corporate existence. In comparison, a de facto corporation is one that has acted in GOOD FAITH and would be an ordinary corpora- tion but for failure to comply with some technical requirements. A de jure government is the legal, legitimate government of a state and is so recognized by other states. In contrast, a de facto government is in actual possession of authority and control of the state. For example, a government that has been overthrown and has moved to another state will attain de jure status if other nations refuse to accept the legitimacy of the revolu- tionary government. De jure SEGREGATION refers to intentional actions by the state to enforce racial segregation. The JIM CROW LAWS of the southern states, which endured until the 1960s, are examples of de jure segregation. In contrast, de facto racial segregation, which occurred in other states, was accomplished by factors apart from conscious government activity. DE MINIMIS An abbreviated form of the Latin maxim de minimis non curat lex, “the law cares not for small things.” A legal doctrine by which a court refuses to consider trifling matters. In a la wsuit, a court applies the de minimis doctrine to avoid the resolution of trivial matters that are not worthy of judicial scrutiny. Its application sometimes results in the dismiss- al of an action, particularly when the only REDRESS sought is for a nominal sum, such as one dollar. Appellate courts also use the de minimis doctrine when appropriate. DE NOVO [Latin, Anew.] A second time; afresh. A trial or a hearing that is ordered by an appellate court that has reviewed the record of a hearing in a lower court and sent the matter back to the original court for a new trial, as if it had not been previously heard nor decided. DEA See DRUG ENFORCEMENT ADMINISTRATION. DEAD MAN’S STATUTES State rules of evidence that make the oral statements of a decedent inadmissible in a civil lawsuit against the executor or administrato r of the decedent’s estate when presented by persons to bolster their claims against the estate. Dead man’s statutes are designed to protect the estate of a deceased person from fraudulent claims made by a person who had engaged in transactions with the DECEDENT. These laws do not permit the claimant totestify as to what GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEAD MAN’ S STATUTES 373 terms a decedent verbally accepted, since the decedent is unable to testify and give his or her version of the transaction. Such statutes are derived from common- law principles that disqualified witnesses from testifying in an action if they would be affected by the outcome of the case. Many states admit such testimony as evidence under specific statutory conditions, such as if the decedent’s statements can be corroborated by the testimo- ny of other disinterested witnesses. The FEDERAL RULES OF EVIDENCE govern the use of oral statements made by decedents in federal cases. DEADLY FORCE An amount of force that is likely to cause either serious bodily injury or death to another person. Police officers may use deadly force in specific circumstances when they are trying to enforce the law. Private citizens may use deadly force in certain circumstan ces in SELF-DEFENSE. The rules governing the use of deadly fo rce for police officers are different from those for citizens. During the twelfth century, the COMMON LAW allowed the police to use deadly fo rce if they needed it to capture a FELONY suspect, regardless of the circumstances. At that time, felonies were not as common as they are now and were usually punishable by death. Also, law officers had a more difficult time capturing suspects because they did not have the technology and weaponry that are present in today’s world. In modern times, the courts have restricted the use of deadly force to certain, dangerous situations. In police jargon, deadly force is also referred to as shoot to kill. The Supreme Court has ruled that, depending on the circumstances, if an offender resists arrest, police officers may use as much force as is reasonably required to overcome the resistance. Whether the force is reasonable is determined by the jud gment of a reasonable officer at the scene, rather than by hindsight. Because police officers can find themselves in dangerous or rapidly changing situations where split second decisions are necessary, the judgment of someon e at the scene is vital when looking back at the actions of a police officer. The Supreme Court has defined the “objec- tive reasonableness” standard as a balance between the rights of the person being arrested and the government interests that allow the use of force. The FOURTH AMENDMENT protects U.S. citizens from unreasonable searches and sei- zures, the category into which an arrest falls. The Supreme Court has said that a SEARCH AND SEIZURE is reasonable if it is based on PROBABLE CAUSE and if it does not unreasonably intrude on the rights and privacy of the individual. This standard does not question a police officer’s intent or motivation for using deadly force during an arrest; it only looks at the situation as it has happened. For deadly force to be constitutional when an arrest is taking place, it must be the reasonable choice under all the circumstances at the time. Therefore, deadly force should be looked at as an option that is used when it is believed that no other action will succeed. The MODEL PENAL CODE, although not adopted in all states, restricts police action regarding deadly force. According to the code, officers should not use deadly force unless the action will not endanger innocent bystanders, the suspect used deadly force in committing the crime, or the officers believe a delay in arrest may result in injury or death to other people. In specific circumstances, police officers may use deadly force when attempting to enforce the law. These SWAT team members resorted to the use of deadly force after attempting to arrest a suspect in a November 1995 hijacking in Miami, Florida. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 374 DEADLY FORCE Circumstances that are taken into consider- ation are the severity of the offense, how much of a threat the suspect poses, and the suspect’s attempts to resist or flee the police officer. When arresting someone for a MISDEMEANOR, the police have the right to shoot the al leged offender only in self-defense. If an officer shoots a suspect accused of a misdemeanor for a reason other than self-defense, the officer can be held liable for criminal charges and damages for injuries to the suspect. This standard was demonstrated in the Iowa case of Klinkel v. Saddler, 211 Iowa 368, 233 N.W. 538 (1930), where a sheriff faced a WRONGFUL DEATH lawsuit because he had killed a misdemeanor suspect during an arrest. The she riff said he had used deadly force to defend himself, and the court ruled in his favor. When police officers are arresting someone for a felony, the courts have given them a little more leeway. The police may use all the force that is necessary to overcome resistance, even if that means killing the person they are trying to arrest. However, if it is proved that an officer used more force than was necessary, the officer can be held criminally and civilly liable. In Tennessee v. Garner, 471 U.S. 1, 105 S. Ct. 1694, 85 L. Ed. 2d 1 (1985), the Supreme Court ruled that it is a violation of the Fourth Amendment for police officers to use deadly force to stop fleeing felony suspects who are nonviolent and unarmed. The decision, with an opinion written by Justice BYRON R. WHITE, said, in part, “We conclude that such force may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physic al injury to the officer or others.” When deadly force is used by a private citizen, the reasonableness rule does not apply. The citizen must be able to prove that a felony occurred or was being attempted, and that the felony threatened death or bodily harm. Mere suspicion of a felony is considered an insuffi- cient ground for a private citizen to use deadly force. This was demonstrated in the Michigan case of People v. Couch, 436 Mich. 414, 461 N.W.2d 683 (1990), where the DEFENDANT shot and killed a suspected felon who was fleeing the scene of the crime. The Michigan supreme court ruled that Archie L. Couch did not have the right to use dea dly force against the suspected felon because the suspect did not pose a threat of injury or death to Couch. FURTHER READINGS Griffin, Thomas J. 1971. “Private Person’s Authority, in Making Arrest for Felony, to Shoot or Kill Alleged Felon.” American Law Reports 3d 32:1078. Hatch, David E., and Randy Dikson. 2007. Officer-Involved Shootings and Use of Force: Practical Investigation Techniques. New York: Taylor & Francis, Inc. McGuinness, J. Michael. 2000. “Shootings by Police Officers Are Analyzed under Standards Based on Objective Reasonableness.” New York State Bar Association Journal 72 (September). Owens, Michael Douglas. 2001. “The Inherent Constitu- tionality of the Police Use of Deadly Force to Stop Dangerous Pursuits.” Mercer Law Review 52 (summer). Pearson, James O., Jr. 1978. “Modern Status: Right of Peace Officer to Use Deadly Force in Attempting to Arrest Fleeing Felon.” American Law Reports 3d 83:174. ———. 1978. “Peace Officer’s Civil Liability for Death or Personal Injuries Caused by Intentional Force in Arresting Misdemeanant.” American Law Reports 3d 83. Sullivan, G. Russell. 1985. “Constitutional Law—Deadly Force and the Fourth Amendment: Tennessee v. Garner.” Suffolk Univ. Law Review 20. DEATH AND DYING Death is the end of life. Dying is the process of approaching death, including the choices and actions involved in that process. Death is a central concern of the law. Legal issues related to death include laws that determine whether a death has actually oc- curred, as well as when and how it occurred, and whether another individual will be charged for having caused it. With the development of increasingly complex medical procedures and devices in the middle and late twentieth century, the U.S. legal system has had to establish rules and standards governing the use and withdrawal of life-sustaining medical care, including, for example, withdrawing an artificial respirator or a feeding tube from a comatose person or withholding chemotherapy from a terminally ill cancer patient. Such laws and judicial decisions involve the right of individuals to refuse medical treatment—sometimes called the right to die—as well as the boundaries of that right, particularly in regard to the state’s interest in protecting life and the medical profession’s right to protect its standards. The issues involved in death and dying have often pitted patients’ rights groups against physicians’ professional organizations as each vies for control over the decision of how and when people die. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEATH AND DYING 375 Defining Death in the Law The law recognizes different forms of death, not all of them referring to the end of physical life. The term civil death is used in some states to describe the circumstance of an individual who has been convicted of a serious crime or sentenced to life imprisonment. Such an individ- ual forfeits his or her CIVIL RIGHTS,includingthe ability to marry, the capacity to own property, and the right to contract. Legal death is a presumption by law that a person has died. It arises following a prolonged absence, generally for a prescribed number of years, during which no one has seen or heard from the person and there is no known reason for the person’s disappearance that would be incompatible with a find ing that the individual is dead (e.g., the individual had not planned to move to another place). Natural death is death by action of natural causes without the aid or inducement of any in tervening instrumentality. Violent death is death caused or accelerated by the application of extreme or excessive force. Brain death, a medical term first used in the late 1960s, is the cessation of all functions of the whole brain. WRONGFUL DEATH is the end of life through a willful or negligent act. In the eyes of the law, death is not a continuing event but something that takes place at a precise moment in time. The courts will not wield authority concerning a death. The deter- mination of whether an individual has died, and the way in which this is proved by the person’s vital signs, is not a legal decision but rather a medical judgment. The opinion of qualified medical personnel will be taken into consider- ation by judges when a controversy exists as to whether an individual is still alive or has died. Legal Death and Missing Persons There is a legal presumption that an individual is alive until proven to be dead. In attempting to determine whether a person has died after having been missing for a certain period of time, the law assumes that the person is alive until a reason exists to believe otherwise. The common-law rule is that where evidence indicates that the absent person was subject to Dr. Jack Kevorkian displays the machine he designed to allow a patient to self- administer lethal doses of poison. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION 376 DEATH AND DYING a particular peril, he or she will be legally presumed dead after seven years unless the disappearance can be otherwise explained. The seven-year interval may be shortened if the state decides to enact legislation to change it. Some states may permit the dissolution of a marriage or the administration of an estate based on a mysterious disappearance that endures for less than seven years. A majority of states will not make the assumption that a missing person is dead unless it is reasonable to assume that the person would return if still alive. A special problem emerges in a situation where a person disappears following a threat made on his or her life. Such an individual would have a valid reason for voluntarily leaving and concealing his or her identity. Conversely, however, the person would in fact be dead if the plot succeeded. A court would have to examine carefully the facts of a particular case of this nature. In some states, the court will not hold that an individual has died without proof that an earnest search was made for him or her. During such a search, public records must be consulted, wherever the person might have resided, for information regarding marriage, death, PAYMENT of taxes, or application for government benefits. The investigation mu st also include questioning of the missing person’s friends or relatives as to his or her whereabouts. Death Certificates The laws of each state require that the manner in which an individual has died be determined and recorded on a death certificate. Coroners or medical examiners must deal with issues estab- lishing whether someone can be legally blamed for causing the death. Such issues are subsequent- ly determined by CRIMINAL LAW in the event that someone is charged with HOMICIDE and by TORT LAW in the event of a civil suit for wrongful death. The Nature of Dying Because of the many advances in modern medicine, the nature of death and dying has changed greatly in the past several centuries. A majority of people in industrial societies such as the United States no longer perish, as they once did, from infectious or parasitic diseases. Instead, life expectancies range above 70 years and the major causes of mortality are illnesses such as cancer and heart disease. Medicine is able to prolong life by many means, including artificial circulatory and respiratory systems, intravenous feeding and hydration, chemother- apy, and antibiotics. The cultural circumstances of death have changed as well. A study published by the American Lung Association in the late 1990s, indicated that 90 percent of patients who are in intensive care units of hospitals die as a result of surrogates and physicians deciding together to withhold life-sustaining medical care. This rate doubled from earlier in the decade. Brain Death In traditional western medical practice, death was defi ned as the cessation of the body’s circulatory and respiratory (blood pumping and breathing) functions. With the invention of machines that provide artificial circulation and respiration that definition has ceased to be practical and has been modified to include another category of death called brain death. People can be kept alive using such machines even when their brains have effectively died and are no longer able to control their bodily functions. Moreover, in certain medical proce- dures, such as open-hear t surgery, individuals do not breathe or pump blood on their own. Because it would be incorrect to declare as dead all persons whose circulatory or respiratory systems are temporarily maintained by artificial means (a category that includes many patients undergoing surgery), the medical community has determined that an individual may be declared dead if brain death has occurred—that is, if the whole brain has ceased to function or has entered what is sometimes called a persistent vegetative state. An individual whose brain stem (lower brain) has died is not able to maintain the vegetative functions of life, including respira- tion, circulation, and swallowing. According to the Uniform Determination of Death Act (§ 1, U.L.A. [1980]), from which most states have developed their brain death statutes, “An individual who has sustained either (1) irre- versible cessation of circulatory and respiratory function, or (2) irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” Brain death becomes a crucial issue in part because of the importance of organ transplants. A brain-dead person may have organs—a heart, a liver, and lungs, for example—that could save other people’s lives. For an individual to be an acceptable organ donor, he or she must be dead GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEATH AND DYING 377 . decision of how and when people die. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION DEATH AND DYING 37 5 Defining Death in the Law The law recognizes different forms of death, not all of them. illegal or illegitimate. Thus, an GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 37 2 DAYS OF GRACE office, position, or status existing under a claim or color of right, such as a de facto corporation. In. Miami, Florida. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 37 4 DEADLY FORCE Circumstances that are taken into consider- ation are the severity of the offense, how much of a threat the suspect