A. A peace officer, correctional officer, or any person acting by his command in his aid and assistance, is justified in using deadly force when: 1. The officer is acting in obedience to and in accordance with any judgment of a competent court in executing a penalty of death; or 2. In effecting an arrest or preventing an escape from custody following arrest and the officer reasonably believes both that: a. such force is necessary to prevent the arrest from being defeated by resistance or escape, and b. there is probable cause to believe that the person to be arrested has committed a crime involving the infliction or threatened infliction of serious bodily harm, or the person to be arrested is attempting to escape by use of a deadly weapon, or otherwise indicates that he will endanger human life or inflict great bodily harm unless arrested without delay; or 3. The officer is in the performance of his legal duty or the execution of legal process and reasonably believes the use of the force is necessary to protect himself or others from the infliction of serious bodily harm; or 4. The force is necessary to prevent an escape from a penal institution or other place of confinement used primarily for the custody of persons convicted of felonies or from custody while in transit thereto or therefrom unless the officer has reason to know: a. the person escaping is not a person who has committed a felony involving violence, and b. the person escaping is not likely to endanger human life or to inflict serious bodily harm if not apprehended. B. An officer or other person acting by the officer’s command in the officer’s aid and assistance whose use of deadly force is found during any pretrial hearing or proceeding to be unjustified pursuant to this section may appeal such ruling to the Court of Criminal Appeals within ten (10) days of the ruling. Priority shall be given to appeals made pursuant to this subsection and an order staying proceedings shall be entered pending the outcome of the appeal. If an appeal is not brought within ten (10) days of the ruling, the officer waives the right to immediate appeal of the ruling but does not waive any right to assert the claim at trial or upon direct appeal.
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