(concurring in reversal). We agree that Tennessee v Garner, 471 US 1; 105 S Ct 1694; 85 L Ed 2d 1 (1985), did not modify the criminal law of this state.
We are persuaded that this Court should decline, as a matter of judicial restraint, to exercise whatever authority it may have to modify the criminal law as urged by the prosecutor.1 Whether the fleeing-felon rule should be confined to situations where the citizen seeking to make an arrest reasonably believes the felon poses a threat of serious physical harm is a question better left to the Legislature. We thus see no need to reach the question whether this Court has the authority to modify the fleeing-felon rule._
*425The suggestion in the lead opinion that this Court might not have the authority to modify the criminal law implicates this Court’s decision in People v Stevenson, 416 Mich 383; 331 NW2d 143 (1982). There, the Court abolished the common-law "year and a day” rule,2 and in so doing rejected Stevenson’s argument that "this Court lacks the power to change the common law so as to enlarge the scope of criminal liability . . . .”3
As a result of the Court’s decision in Stevenson, prisoners are now serving lengthy sentences on the basis of convictions that could not have been obtained before this Court modified the "common law” of homicide. In suggesting that this Court might not have the authority to modify the criminal law, the lead opinion calls into question the decision in Stevenson as well as all convictions obtained in contravention of the common-law "year and a day” rule.
It is inappropriate to discuss the authority of this Court to modify the criminal law—a question of undeniable jurisprudential importance—in a case where the question was not discussed by the Court of Appeals,4 was not briefed,5 and was not raised at oral argument._
*426We concur in the reversal of the decision of the Court of Appeals.
Griffin, J., concurred with Levin, J. Archer, J.We granted leave to consider whether the common-law rule of People v Whitty, 96 Mich App 403; 292 NW2d 214 (1980), permitting a private person to use deadly force to apprehend a fleeing felon should be modified in light of Tennessee v Garner, 471 US 1; 105 S Ct 1694; 85 L Ed 2d 1 (1985), which, under the Fourth Amendment, forbids police officers to use deadly force in arresting nondangerous fleeing felons, and, if so, whether such a modification would violate the prohibition against ex post facto laws* 1 applicable to the judiciary through the Due Process Clauses of the United States and Michigan Constitutions.2
We would hold that a private citizen making an arrest pursuant to MCL 764.16; MSA 28.875 is not privileged to use deadly force to prevent a fleeing felon’s escape unless the arresting citizen reasonably believes that the felon poses a significant threat of serious physical harm to the citizen or to others. In the event excessive force is used, that citizen may be subject to criminal prosecution. We would further hold that such a rule should have prospective application only.
*427Accordingly, we would affirm that part of the Court of Appeals decision modifying the common-law deadly force rule in accordance with Garner. However, we would reverse that part of the decision which applied the rule retroactively, and we would remand this case to the trial court, which, if there is a trial, should instruct the jury, if appropriate, in accordance with the common-law rule of People v Whitty.
i
PACTS AND PROCEEDINGS
On October 15, 1986, at approximately 1:10 p.m., defendant Archie L. Couch, Jr., was in his office in Detroit when he heard his car alarm. He promptly left his office and walked to the adjacent parking lot where his car was parked. As he approached his car, he observed a man standing near the driveway of the parking lot who yelled something, and then ran eastward. Upon reaching his car, the defendant noticed that the front driver’s window was smashed and observed Alfonso Tucker, Jr., sitting in the middle of the car’s front seat, bending forward, apparently having dismantled the car’s stereo.
The defendant then reached for his revolver which was in his waistband and for which he had a license. Walking to the rear of the car, the defendant held the gun in the air and reportedly said, " 'Get out of the car and go with me so I can call the police.’ ” Tucker then slid over to the passenger door. The defendant walked around the rear of the car toward the same door. Tucker got out of the car stating, " 'Okay, man, don’t shoot.’ ” The defendant then recalled saying, " 'Come on with me, I am going to call the police.’ ” Tucker then lunged toward the defendant, and the defen*428dant fired one shot which apparently missed. Tucker proceeded to run away from the defendant. When he was approximately twenty to thirty feet away, the defendant fired two more shots which fatally wounded him.
The defendant immediately directed his receptionist to call the police. After the police arrived and defendant gave them a full statement, he was arrested and charged with manslaughter under MCL 750.329; MSA 28.561 and with possession of a firearm during the commission of a felony under MCL 750.227b; MSA 28.424(2).
On November 17, 1986, the defendant was bound over for trial as charged. In the trial court, he moved to quash, arguing that the killing of Alfonso Tucker, Jr., was justifiable homicide under the common-law rule allowing a citizen to use deadly force3 to apprehend a fleeing felon. See Whitty, supra. This motion was denied, as was his later motion for reconsideration.
The prosecutor then moved in limine that the jury be instructed in accordance with Garner’s restriction of deadly force, as opposed to Whitty’s allowance of it. The trial court denied this motion, reasoning that it was too early in the proceedings to rule on a jury instruction.
On appeal, the Court of Appeals remanded the case, instructing the trial court to rule on the prosecution’s request for a jury instruction on the basis of Garner. On remand, the trial court held that Garner did not apply to the instant facts and again denied the prosecutor’s instructional request. The prosecutor appealed, and the trial court *429further ordered that the trial be stayed pending appellate review of its ruling that the rule of Whitty and not that of Garner should be cited in the instructions to the jurors.
On April 3, 1989, the Court of Appeals reversed, holding that the rule of Whitty should be modified in accordance with Garner to provide that a private citizen who makes an arrest may use deadly force only to prevent a felon from fleeing where the citizen has a reasonable belief that the felon poses a threat of serious physical harm to that citizen or to other citizens. The Court further held that Garner applied retroactively so as to criminalize the instant shooting.4 We subsequently granted leave to appeal.5
ii
Today we are called upon to analyze and determine the powers of citizens to effect arrests in this state. MCL 764.16; MSA 28.875, the citizens arrests statute, provides:
A private person may make an arrest in the following situations:
(a) For a felony committed in the private person’s presence.
(b) If the person to be arrested has committed a felony although not in the private person’s presence.
(c) If the private person is summoned by a peace officer to assist the officer in making an arrest.
Defendant Couch was authorized by MCL 764.16(a); MSA 28.875(a) to arrest Alfonso Tucker, Jr. However, authorization for use of deadly force in an arrest attempt was not provided by the *430statute, and thus we must turn to the common law.
The common-law rule initially concerned the actions of police officers. In Hale’s Pleas of the Crown, it is stated:
"[I]f persons that are pursued by these officers for felony or the just suspicion thereof . . . shall not yield themselves to these officers, but shall either resist or fly before they are apprehended or being apprehended shall rescue themselves and resist or fly, so that they cannot be otherwise apprehended, and are upon necessity slain therein, because they cannot be otherwise taken, it is no felony.” [Garner, supra at 12, quoting 2 Hale, Historia Placitorum Coronae 85 (1736).]
In 1930, this Court in People v Gonsler, 251 Mich 443, 446-447; 232 NW 365 (1930), applied this common-law principle to private arrests:
"Both officers and private persons seeking to prevent a felon’s escape must exercise reasonable care to prevent the escape of the felon without doing personal violence, and it is only where killing him is necessary to prevent this escape, that the killing is justified . . . .” [Emphasis added.]
The clearest statement concerning Michigan’s continued adherence to the common-law deadly force rule was made by the Court of Appeals in People v Whitty, supra. In that case, Roosevelt Whitty, the manager of a party store in Highland Park, attempted an arrest of an armed robber. In apprehending the assailant, Whitty fatally wounded him. Mr. Whitty was convicted of first-degree murder.
On appeal, the Court of Appeals reversed, applying the common-law rule permitting the use of *431deadly force. The Court reasoned that the common-law rule should be maintained because:
The fact remains that the police cannot be everywhere they are needed at once. The occasion may arise where the private citizen is confronted with the choice of attempting a citizen’s arrest or letting the felon escape. In order to make the citizen’s arrest, it is regrettable, but sometimes necessary, to make use of deadly force. The common law in Michigan recognizes this but still stops far short of granting the private citizen a license to hunt down and kill those suspected of committing a felony. The use of deadly force is not justified if the person to be arrested is not in fact a felon. Additionally, and most importantly, the use of deadly force must be necessary either to meet deadly force or to prevent the felon’s escape. [Whitty at 416. See also People v Smith, 148 Mich App 16; 384 NW2d 68 (1985); Werner v Hartfelder, 113 Mich App 747; 318 NW2d 825 (1982); Jenkins v Starkey, 95 Mich App 685; 291 NW2d 170 (1980).]
Five years after the decision in Whitty, the United States Supreme Court in Tennessee v Garner held that under the Fourth Amendment of the United States Constitution,6 police officers cannot resort to deadly force in making an arrest unless such force is necessary to prevent the escape of a fleeing felon and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or *432to others. The basis of the Court’s ruling was that the killing of a fleeing suspect was an unreasonable seizure under the Fourth Amendment. The Court reasoned:
The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so. It is no doubt unfortunate when a suspect who is in sight escapes, but the fact that the police arrive a little late or are a little slower afoot does not always justify killing the suspect. A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. [Id. at 11.]
Gamer’s constitutional restriction of police power to arrest causes us to question the continued validity of the common-law rule presently governing private citizen arrests in Michigan. Three interrelated questions are presented: First, does Gamer provide controlling authority to automatically modify Whitty’s common-law deadly force rule, and, if not, is it persuasive authority for modifying the rule today? Lastly, should Gamer or any modified rule be applied in this case?
hi
Initially, we conclude that Garner’s limitation of the privilege previously available to arresters in apprehending felons, grounded upon a Fourth Amendment seizure analysis, while highly pertinent to the resolution of this case, does not control its outcome unless citizen arrests are found to *433represent state action rather than action solely attributed to private persons.
We do not believe citizen arrests are state action. Thus, in accordance with the holding of the Court of Appeals, we conclude that Garner provides only persuasive and not controlling authority for application in the instant case.
A
The prosecutor first urges this Court to rule that arrests, whether performed by a citizen or a police officer, of themselves are state action, and that any discussion or limitation of the means available to arresters is automatically subordinate to the Fourth and Fourteenth Amendments of the United States Constitution. In support, the prosecution argues that the wording of the arrest statutes, MCL 764.15; MSA 28.874 for police7 and MCL 764.16; MSA 28.875 for private citizens, is “not *434essentially different.” We are not persuaded. Similarly worded statutory authorization which, in this case, is questionable to begin with is, in our view, one of the few parallels between police and citizen arrests that exists.
The manifest differences between police arrests, the focus of Garner, and citizen arrests, the focus of Whitty, prohibit us from easily grouping the terms under one generalized heading. Although, the prosecutor correctly notes that arrests are made for the common purpose of commencing state prosecutions, the manner and means of ef*435fecting arrests varies significantly with respect to police officers and civilians.
For example, police officers not only are licensed to carry weapons, they are intensely trained in their use. The responsibility for the training is borne by city and state police departments, so that trained officers become agents of the state. See Ross v Consumers Power Co (On Rehearing), 420 Mich 567, 661; 363 NW2d 641 (1984). Officers are instructed to perform tasks such as arrests as a matter of public duty,-8 not, as is the case with civilians, as a matter of private privilege. Thus, despite common ends, private arresters are limited to "standing] in the shoes” and "playing the part” of police officers.9 Plainly, there are a significant number of unbridged gaps and obvious differences between the means used by skilled, trained, and sophisticated police officers and those used by untrained, and inexperienced civilians. For this reason, we conclude that police arrests and private arrests cannot be simplistically defined or categorized as being one and the same. A private person’s manner in arresting a felon cannot automatically be attributed to the state.
The prosecutor also contends that because a citizen arrest is authorized by statute, it is conduct discharged "under [the] color” of law, and therefore, automatically attributable to the state. In support, the prosecution cites United States v Price, 383 US 787, 794, n 7; 86 S Ct 1152; 16 L Ed 2d 267 (1966):
In cases under § 1983,[10] "under color” of law *436has consistently been treated as the same thing as the "state action” required under the Fourteenth Amendment.
To the contrary, the Supreme Court in Flagg Bros, Inc v Brooks, 436 US 149, 164; 98 S Ct 1729; 56 L Ed 2d 185 (1978) reasoned:
[Despite] [o]ur cases [that] state "that a State is responsible for the ... act of a private party when the State, by its law, has compelled the act[,]” [t]his Court . . . has never held that a State’s mere acquiescence in a private action converts that action into that of the State. [Citations omitted.]
In essence, the Court established that an action by a private party pursuant to a statute, without "something more,”11 is not sufficient to justify a characterization of that party as a "state actor.”
*437We do not believe that the conduct of defendant is chargeable to the State of Michigan. Beyond providing the basic statutory framework, the state has absolutely no involvement in the idiosyncratic application of the citizen arrest statute. The state simply cannot bear responsibility for the individual acts of an uncertain number of private persons, each of whom has the privilege at any given moment to attempt the apprehension of a suspected felon. Patent distinctions exist between the means used by trained police officers and those used by members of the general public to effect arrests. Even though police and citizen arrests are carried out with the common goal of maintaining public peace, this does not automatically equate private efforts with those of the state. See People v Holloway, 82 Mich App 629; 267 NW2d 454 (1978) (the acts of a security guard hired for the purpose of keeping the peace was found not to be subordinate to the constitution). We do not believe the citizen’s arrest statute provides the "something more” needed to "lend the weight of the State to [individual] decisions.” See Lugar v Edmondson Oil Co, 457 US 922, 937, 939; 102 S Ct 2744; 73 L Ed 2d 482 (1982). __
*438Accordingly, we conclude that the instant case is not controlled by or subordinate to the Fourth and Fourteenth Amendments. We further conclude that Garner does not provide controlling authority for the resolution of this case.
B
We do agree with the Court of Appeals, however, that Garner does provide persuasive authority. Generally, the common-law rule permitting use of deadly force to effectuate an arrest applies to "[b]oth officers and private persons seeking to prevent a felon’s escape . . . .” 3A Gillespie, Michigan Criminal Law & Procedure (2d ed), § 1691(d), p 231. (Emphasis added.) See Gonsler at 446-447.
Because the common-law rule was the source of authority in this state for both police and civilian use of deadly force to stop fleeing felons, as a practical matter we believe Garner’s expressed limitations on the use of deadly force by police officers should be applied to civilians as well.
The lead opinion correctly contends that the Court has no jurisdiction to amend statutes but that it has the authority to amend or change the common law. We are not purporting to modify the elements of the statutory offense. The rule permitting private citizens to use deadly force to prevent a fleeing felon’s escape is a defense to homicide, rather than an element of either manslaughter or murder. We would merely amend the common law, as the Court is authorized to do by the Michigan Constitution.12
It is true that the Legislature has authorized private citizens to make arrests, see MCL 764.16; MSA 28.875. However, the statutory language does not support the contention that the Legislature *439authorized the use of deadly force by private citizens arresting a fleeing felon. Legislative history is silent on this issue. Such authorization was made by case law, not statute. See Gonsler, Whitty, supra.
Providing some practical reasons why the common-law rule should not be applied in the present, the Court in Garner expressed:
It has been pointed out many times that the common-law rule is best understood in light of the fact that it arose at a time when virtually all felonies were punishable by death. "Though effected without the protections and formalities of an orderly trial and conviction, the killing of a resisting or fleeing felon resulted in no greater consequences than those authorized for punishment of the felony of which the individual was charged or suspected.” [Gamer at 13-14. Citations omitted. See also Whitty at 415, citing LaFave & Scott, Criminal Law, § 56, p 405; Pearson, The right to kill in making arrests, 28 Mich L R 957, 974-975 (1930); Commonwealth v Chermansky, 430 Pa 170; 242 A2d 237 (1968).]
Like the Garner Court, we are not persuaded that the shooting of a nondangerous fleeing suspected felon is so vital as to outweigh the sanctity of the suspect’s interest in his own life.13 The *440consequences of the continued use of an unmodified common-law deadly force rule, death or serious injury, far outweigh the rule’s alleged utility especially in this case where the suspected felon did not appear to pose a serious threat of harm and did voluntarily retreat pleading, "Okay, man, don’t shoot.”
The argument that "police cannot be everywhere they are needed at once,” Whitty at 416, no longer has the force it once did because Garner has since limited what police officers can do even when they arrive promptly at the scene of a felony. In People v Coons, 158 Mich App 735, 739; 405 NW2d 153 (1987), the Court of Appeals reasoned that despite Garner, the Court could "not give [a] defendant permission to use deadly force in a situation where it would be denied to a law enforcement officer having broader powers to effect an arrest.” (Emphasis added.) We agree.
Accordingly, we would hold that a private citizen effecting an arrest pursuant to MCL 764.16; MSA 28.875 is not privileged to use deadly force to prevent a fleeing felon’s escape unless the arresting citizen reasonably believes that the felon poses a threat of serious physical harm to that citizen or to others. In the event excessive force is used, the citizen arrester may be subject to criminal prosecution commensurate with the injury caused.
iv
Upon the basis of the erroneous belief that *441defendant Couch was a "state actor” whose acts were subordinate to the Fourth and Fourteenth Amendments, the prosecutor argues that our Garner-based decision should be applied retroactively. Alternatively, the prosecutor argues that Garner’s 1985 release automatically modified the common-law rule articulated in Whitty. We disagree with both assertions and would hold that such an amendment should have prospective application only.
Garner provided substantial, persuasive guidance in the fashioning of our new standard. Yet, its holding did not automatically modify Whitty. The citizen arrester in Whitty and in this case were not "state actors,” and, therefore, not subject to the constitutional restraints imposed by Garner. Police officers, on the other hand, are state agents, and hence, directly subordinate to Garner’s constitutional limitations.
Until now, the common-law rule of Whitty has remained intact. On October 15, 1986, defendant Couch’s use of deadly force in attempting to arrest Alfonso Tucker, Jr., was consistent with Whitty. We believe that any other conclusion would deprive the defendant of his due process right to a fair and specific notice of the conduct for which he may be criminally penalized.14 Nor can we condone or ourselves engage in what we consider to be forbidden judicial action ex post facto. See People v Stevenson, 416 Mich 383, 395; 331 NW2d 143 *442(1982), citing Marks v United States, 430 US 188; 97 S Ct 990; 51 L Ed 2d 260 (1977), and Bouie v City of Columbia, 378 US 347; 84 S Ct 1697; 12 L Ed 2d 894 (1964); People v Demster, 396 Mich 700, 714-718; 242 NW2d 381 (1976). We conclude that such a modified rule should not be applicable to defendant Couch’s actions of October 15, 1986, and that the rule should have prospective application only.
CONCLUSION
We conclude that defendant Couch’s actions are to be analyzed under the common-law standard articulated in Whitty. Accordingly, we would affirm in part and reverse in part, the decision of the Court of Appeals.
Cavanagh, J., concurred with Archer, J.The lead opinion also states that whether or not this Court has the authority to modify the fleeing-felon rule, it should not do so. See ante, p 422 ("Regardless of whether this Court has the authority to change the law of homicide, and make criminal something that has never before been a crime in this state, we nonetheless decline to do so in this case”).
We hold that the "year and a day” rule is part of the common law of this state; that the rule is hereby abrogated; and that the abrogation of the rule should not, and will not, be given retroactive effect. [Id., p 386.]
Id., p 390. This Court said:
The suggestion that crimes can only be defined by statute is not well taken, particularly in light of the fact that, in Michigan, murder is defined by the common law and not by statute.
[Id., p 391. Emphasis in original.]
Like the lead opinion (see ante, pp 417-418), Stevenson relied on In re Lamphere, 61 Mich 105; 27 NW 882 (1886). See Stevenson, pp 390-391.
People v Couch, 176 Mich App 254; 439 NW2d 354 (1989).
Couch does not contend this Court lacks the authority to modify the fleeing-felon rule. Indeed, he asserts the opposite:
*426The determination of whether or not to modify the common law rule may well be one that is better left to the Legislature. Both this Court and the Legislature have the constitutional power to change the common law. . . . Assuming that this Court determines that it rather than the Legislature should determine this issue, Defendant urges against modification of the common law rule.
US Const, art I, § 10; Const 1963, art 1, § 10.
US Const, Am XIV; Const 1963, art 1, § 17. See People v Stevenson, 416 Mich 383, 395; 331 NW2d 143 (1982), and People v Dempster, 396 Mich 700, 714-718; 242 NW2d 381 (1976).
References to the term "deadly force” throughout this opinion shall be governed by the following definition "where the defendant’s acts are such that the natural, probable, and foreseeable consequence of said acts is death.” People v Pace, 102 Mich App 522, 534; 302 NW2d 216 (1980).
People v Couch, 176 Mich App 254; 439 NW2d 354 (1989).
People v Couch, 434 Mich 851 (1990).
US Const, Am IV, provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
MCL 764.15; MSA 28.874 provides:
(1) A peace officer, without a warrant, may arrest a person in the following situations:
(a) When a felony, misdemeanor, or ordinance violation is committed in the peace officer’s presence.
(b) When the person has committed a felony although not in the presence of the peace officer.
(c) When a felony in fact has been committed and the peace officer has reasonable cause to believe that the person has committed it.
(d) When the peace officer has reasonable cause to believe that a felony has been committed and reasonable cause to believe that the person has committed it.
(e) When the peace officer has received positive information by written, telegraphic, teletypic, telephonic, radio, or other authoritative source that another peace officer holds a warrant for the arrest.
(f) When the peace officer has received positive information broadcast from a recognized police or other governmental radio station, or teletype, as may afford the peace officer reasonable cause to believe that a felony has been committed and reasonable cause to believe that the person has committed it.
(g) When the peace officer has reasonable cause to believe *434that the person is an escaped convict, has violated a condition of parole from a prison, has violated a condition of probation imposed by a court, or has violated a condition of a pardon granted by the executive.
(h) When the peace officer has reasonable cause to believe that the person was, at the time of an accident, the driver of a vehicle involved in the accident and was operating the vehicle upon a public highway or other place open to the general public, including an area designated for the parking of vehicles, in the state while in violation of section 625(1) or (2) of the Michigan vehicle code, Act No. 300 of the Public Acts of 1949, being section 257.625 of the Michigan Compiled Laws, or of a local ordinance substantially corresponding to section 625(1) or (2) of Act No. 300 of the Public Acts of 1949.
(i) When the peace officer has reasonable cause to believe that the person was, at the time of an accident, the driver of a snowmobile as defined by Act No. 74 of the Public Acts of 1968, as amended, being sections 257.1501 to 257.1518 of the Michigan Compiled Laws, involved in the accident and was driving the snowmobile while under the influence of an intoxicating liquor; a controlled substance as defined in section 7104 of the public health code, Act No. 368 of the Public Acts of 1978, as amended, being section 333.7104 of the Michigan Compiled Laws; or a combination of intoxicating liquor and a controlled substance.
(j) When the peace officer has reasonable cause to believe that the person was, at the time of an accident, the driver of an orv as defined in Act No. 319 of the Public Acts of 1975, as amended, being sections 257.1601 to 257.1626 of the Michigan Compiled Laws, involved in the accident and was driving the orv while under the influence of an intoxicating liquor; a controlled substance, as defined in section 7104 of Act No. 368 of the Public Acts of 1978, as amended; or a combination of intoxicating liquor and a controlled substance.
See Pearson, The right to kill in making arrests, 28 Mich L R 957 (1930), citing State v Dunning, 177 NC 559; 98 SE 530 (1919); Durham v State, 199 Ind 567; 159 NE 145 (1927).
People v Couch, 176 Mich App 259.
Every person who, under color of any statute, ordinance, *436regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. [42 USC 1983.]
The "something more” needed to elevate an action discharged "under color” of law to state action was described by the Supreme Court in Lugar v Edmondson Oil Co, 457 US 922, 939; 102 S Ct 2744; 73 L Ed 2d 482 (1982):
1) The "public function” test is found in Terry v Adams, 345 US 461, 469; 72 S a 809; 97 L Ed 1152 (1953), where the Court struck down discriminatory acts of a private political organization, holding, "[i]t violates the Fifteenth Amendment for a state, by such circumvention, to permit within its borders the use of any device that produces an equivalent of the prohibitive election”;
2) The "state compulsion” test is found in Adickes v S H Kress & Co, 398 US 144, 170; 90 S Ct 1598; 26 L Ed 2d 142 (1970), where the Court held that a party can establish a § 1983 claim for violation of equal protection if it is proven that service was refused because of a state enforced custom;
*4373) The "nexus” test is found in Jackson v Metropolitan Edison Co, 419 US 345, 351; 95 S Ct 449; 42 L Ed 2d 477 (1974), where the Court held that state action is present where there is a sufficiently close or symbiotic nexus between the state and the challenged entity’s act of deprivation so that the action may be fairly treated as an action of the state itself;
4) The "joint action” test is found in Flagg Bros, supra at 157 and Price, supra at 794, where actions of private persons with the state rise to the level necessary to characterize them as state acts.
We note first that the § 1983 actions upon which these tests are based involve civil claims traditionally brought against state officials or private persons to redress violations of civil and constitutional rights, e.g., Garner, supra. Because this case principally involves consideration of whether a citizen should be held criminally liable for the use of deadly force to stop a fleeing felon, we find any discussion of the abridgement of civil rights inappropriate.
Const 1963, art 3, § 2; art 6, § 1.
We also acknowledge the logic inherent in § 3.07(2)(b)(ivXl)(2) of the Model Penal Code:
(b) The use of deadly force is not justifiable under this Section unless:
(iv) the actor believes that:
(1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force; or
(2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed. [ALA, Model Penal Code: Proposed Official Draft (1962), pp 56-57.]
*440Our citation of these sections of the Model Penal Code should not be deemed adoption of them. We believe that is best left to the Legislature. At present, Michigan has no statute which deals with the use of deadly force to arrest. Until the Legislature enacts such a provision, Michigan must be guided by its case law. We simply find that the modification of the common-law rule in the Model Penal Code achieves the fairest and most balanced result.
Even upon the improbable finding that defendant was a state actor whose acts were controlled by the ruling in Gamer, the defendant would still prevail here on the basis of the fact that at the time of the shooting neither Gamer itself, the courts, nor the Legislature provided notice in accordance with due process of the fact that civilian arrests pursuant to the common-law deadly force rule were, henceforth, unquestionably prohibited in Michigan. Absent the clear statement by this Court today, defendant’s actions on October 15, 1986, could at best be characterized as "probably” proscribed, which would be an unacceptable foundation upon which to base a conviction.