Page:020413 DOJ White Paper.pdf/13

 application of a speed law to a policeman pursuing a criminal or the driver of a fire engine responding to an alarm”).

The touchstone for the analysis whether section 1119 incorporated not only justifications generally, but also the public authority justification in particular, is the legislative intent underlying this statute. Here, the statute should be read to exclude from its prohibitory scope killings that are encompassed by traditional justifications, which include the public authority justification. The statutory incorporation of two other criminal statutes expressly referencing “unlawful” killings is one indication. See supra at 10–11. Moreover, there are no indications that Congress had a contrary intention. Nothing in the text or legislative history of sections 1111–1113 of title 18 suggests that Congress intended to exclude the established public authority justification from those justifications that Congress otherwise must be understood to have imported through the use of the modifier “unlawful” in those statutes. Nor is there anything in the text or legislative history of section 1119 itself to suggest that Congress intended to abrogate or otherwise affect the availability of this traditional justification for killings. On the contrary, the relevant legislative materials indicate that, in enacting section 1119, Congress was merely closing a gap in a field dealing with entirely different kinds of conduct from that at issue here.

The Department thus concludes that section 1119 incorporates the public authority justification. This paper turns next to the question whether a lethal operation