Jones v. Marshall, Civ. No. 13811.

• Citation: 383 F. Supp. 358
• Decision Date: 08 October 1974
• Docket Number: Civ. No. 13811.
• Court: United States District Courts. 2nd Circuit. United States District Court (Connecticut)
• Parties: Flozell JONES, Individually and as Administrator of the Estate of Dennis Jones, Decedent, v. Keith MARSHALL, Officer, West Hartford Police Department.

383 F. Supp. 358

Flozell JONES, Individually and as Administrator of the Estate of Dennis Jones, Decedent, v. Keith MARSHALL, Officer, West Hartford Police Department.

Civ. No. 13811.

United States District Court, D. Connecticut.

October 8, 1974.

Bruce C. Mayor, Hartford, Louis Parley, University of Connecticut School of Law Legal Clinic, West Hartford, Conn., for plaintiff.

James P. Connolly, Corp. Counsel, Town of West Hartford, W. Hartford, Robert Pelgrift, Hartford, Conn., for defendant.

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT

BLUMENFELD, District Judge.

This is an action for damages for the death of Dennis Jones that has been brought by his father as administrator of his estate. The defendant, Officer Keith Marshall of the West Hartford Police Department, who shot and killed Jones, is alleged thereby to have deprived the decedent of his civil rights under color of state law.¹ 42 U.S.C. § 1983 (1970). Jurisdiction is proper under 28 U.S.C. § 1343(3) (1970). The parties have filed cross motions for summary judgment based upon the following basic facts to which they have stipulated.

I. Stipulated Facts

On August 29, 1969, at approximately noon, Officer Marshall, while on patrol in his cruiser, observed a Cadillac being driven by three males, later identified as Russell Seals, Jr., Raymond Arter, and Dennis Jones. Through radio contact with the West Hartford Police Headquarters, Marshall learned that the automobile was a stolen vehicle and began to follow it. Marshall made no attempt to stop the car and did not activate his siren or flasher. The Police Headquarters radioed him that assistance from the Hartford Police Department was on the way.

The Cadillac and Marshall proceeded for some time into Hartford at a moderate pace. However, when the Cadillac entered Mark Twain Drive from Dillon Road it accelerated to about 80 miles per hour and proceeded, with Marshall in pursuit, onto Mark Twain Extension. At the end of the Extension, the Cadillac and the police cruiser skidded to a halt, creating a large cloud of dust.

Marshall alighted from his cruiser with his weapon drawn. Since the occupants of the Cadillac were not immediately visible, Marshall climbed to the top of a nearby embankment, and from that point he observed two males running across an open field. He called to them to halt. They did so momentarily and turned to face him; then they turned and began to run away from Marshall toward a nearby wooded area.

Without firing a warning shot or attempting any further means of apprehension, Marshall fired his gun at one of them, Dennis Jones. Although Marshall aimed at Jones' leg, the bullet struck the decedent in the left buttock and then penetrated the left ilium and lacerated the left common iliac artery, peritoneum, massentery, and jejunum, causing death. At the time, Marshall was 125 feet from Jones; the intervening distance can be characterized as rough terrain containing a gully and covered with bushes and underbrush.

Neither Jones nor the other individuals in the Cadillac was armed or specifically threatened physical injury in any manner to Officer Marshall or anyone else. The automobile pursuit did not endanger anyone other than the occupants of the two cars.

Officer Marshall actually and reasonably believed that Jones was a felony suspect. Theft of a motor vehicle was defined by state law as a felony at the time these events occurred. Conn.Gen. Stat. § 53-57. Marshall actually and reasonably believed that it was necessary under the circumstances to use deadly force to apprehend and arrest Jones.

II. Civil Liability and the Constitutional Claim

If this case had been brought as a wrongful death action in state court, there could have been no recovery: Marshall, on the stipulated facts, would have been privileged to shoot at Jones. In Martyn v. Donlin, 151 Conn. 402, 198 A.2d 700 (1964), a police officer (Donlin) chased and shot one whom he reasonably believed to be a felon (Martyn) when Martyn ignored the officer's order to stop and climbed over a fence. Finding that Donlin had a reasonable belief that the use of deadly force was necessary to effect the arrest, the court declined to hold him liable for Martyn's death. The case states the Connecticut common law principles:²

"Under our rule, in effecting a legal arrest, the arresting officer may . . . use such force as he reasonably believes to be necessary, under all the circumstances surrounding its use, to accomplish that purpose, that is, to effect the arrest and prevent an escape. . . . But the use of a means, or of force, likely to cause death, as was the case here, is privileged only if the arrest was for a felony and the force used was reasonably believed to be necessary to effect that arrest. . . .

". . . .

". . . An officer in using deadly force for this purpose must act in good faith. He must have actually believed, and also have had reasonable cause to believe, that it was necessary under the circumstances to use deadly force to make the arrest."³

These common law principles, if constitutional, are applicable here: in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), a suit under § 1983 for damages for false imprisonment, the Court emphasized that the section "should be read against the background of tort liability" and recognized the common law privilege of a police officer to make an arrest, in good faith and with probable cause, of one whose innocence is later proved. Similarly, this Court must allow Marshall to use the common law privilege enunciated by Martyn v. Donlin as a shield against liability unless that common law privilege itself be unconstitutional. Cf. Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970); Clark v. Ziedonis, 368 F.Supp. 544 (E.D.Wis. 1973); Love v. Davis, 353 F.Supp. 587 (W.D.La.1972).

The plaintiff does not challenge any of these principles as embodied in Connecticut's law other than that element which extends the privilege to use deadly force to an attempt to effect an arrest for an offense that did not pose the risk of death or serious bodily harm. As to this element, the plaintiff contends that the proposed limitations on the use of deadly force, as stated in the Model Penal Code, are constitutionally required. With regard to the instant case, the relevant subsections in that code provide:

"(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."⁴

The basis for the plaintiff's contention lies in policy arguments that allowing the use of deadly force in circumstances such as those of this case is "illogical, antequated sic and barbaric." Reduced to its essence the argument is that allowing life to be taken to protect property is barbaric in our modern world, where only jail sentences and fines are prescribed as punishments for crimes against property. In arguing that "the balance between the value of a suspect's life and the threat he poses to society against life that exists in the common law rule is reversed," the plaintiff relies upon language that appears in the opinions in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Furman provides no support for that proposition, however. The case cannot be explained as founded upon an overriding reverence...