424 F.2d 1228 (4th Cir. 1970), 13627, Jenkins v. Averett

Docket Nº:13627.
Citation:424 F.2d 1228
Party Name:Robert Leon JENKINS, a minor, by his mother and next friend, Roberta B. Jenkins, Appellant, v. F. W. AVERETT, Appellee.
Case Date:April 20, 1970
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

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424 F.2d 1228 (4th Cir. 1970)

Robert Leon JENKINS, a minor, by his mother and next friend, Roberta B. Jenkins, Appellant,


F. W. AVERETT, Appellee.

No. 13627.

United States Court of Appeals, Fourth Circuit.

April 20, 1970

Argued Dec. 3, 1969.

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James E. Ferguson, II, Charlotte, N.C. (Chambers, Stein, Ferguson & Lanning, Charlotte, N.C., Conrad O. Pearson, Durham, N.C., Robert Harrell, Asheville, N.C., Jack Greenberg and Michael Meltsner, New York City, on brief), for appellant.

F. W. Averett, appellee, did not file a brief and did not appear for argument.

Before SOBELOFF, BRYAN and BUTZNER, Circuit Judges.

SOBELOFF, Circuit Judge:

The subject matter of this appeal is an occurrence in Asheville, North Carolina, on August 5, 1967. On that night, appellant, Robert Jenkins, an 18-year-old black youth, was shot by F. W. Averett, appellee, a white Asheville police officer. Jenkins had committed no crime nor was he ever charged with one. Subsequently, he sued Averett in the United States District Court to recover damages for violation of his constitutional rights under 42 U.S.C. § 1983 and for assault and battery under a pendent claim based upon the law of North Carolina. The District Court rejected the section 1983 claim but found defendant liable in the state cause of action. The assessment of compensatory damages, however, was limited to out-of-pocket expenses, in the amount of $448.00. Nothing was allowed for pain and suffering.

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Factual Setting

A. The Evidence

Between midnight and 1:00 a.m., on the night in question, Jenkins was walking home from a club in the company of three or four other Negro boys. They had not proceeded far when they were overtaken by a car filled with white boys who hurled racial taunts as they sped past. The automobile returned in short order. This time one white boy got out and threw a tire tool, which hit one of Jenkins' companions on the leg.

The tire tool, which became the focal point of the ensuing events, and later of this litigation, is a metal bar with a bend or crook. Its length is about 18 inches. 1 Plaintiff retrieved the thrown tool and pursued the automobile on foot by himself. After rounding a street corner he lobbed the bar at the speeding vehicle, but missed. His adversaries, however, evidently noting that he was now alone, stopped and began to pelt him with beer bottles.

Jenkins retreated around the corner to enlist his colleagues. He was joined by his friends and approximately ten other Negro boys who happened upon the scene. They rushed the seven or eight white boys, who now scurried away.

It was at this point, while the group of black youths was still milling about, that the squad car containing appellee Averett and his partner, Officer Bumpus, pulled up across the street. They had come in response to a radio call addressed to another police patrol. When the boys saw the police they began to scatter. It was Jenkins who sought to restrain them, admonishing that having done no wrong they should not run. Finally, when the last boy, whom Jenkins had grabbed by the arm, broke away, Jenkins as well flew. He still had the tire tool, and according to his version, ran with it in his hand.

When the police first arrived they perceived no wrongdoing. But Averett claims that he saw Jenkins stuff something into his pants leg before bounding off and that across the concededly fairly well lit street it looked to him like a gun. Officer Bumpus saw neither gun nor tool. According to his testimony, what he saw appeared to him like a boy tucking his shirt in.

The officers in their automobile went in pursuit of Jenkins. Jenkins thinks he was selected simply because he was the last to leave the scene. Averett says that the young man was singled out for pursuit because he was a suspected gun wielder. At any rate Jenkins ran some distance. In fact, for six blocks he outran the police car which, according to Averett, was moving at a fast pace. Averett claims that all along the implement was concealed in Jenkins' trousers. He offers no explanation of how a man could run, indeed run so well, with a long metal bar in his pants leg.

The squad car finally caught up with appellant when he darted down a narrow lane. The police vehicle turned in and Jenkins, according to defendant's testimony, was caught against a wall in the squad car's headlights and 'almost under the street light.' Significantly, Averett acknowledges that the tool was now out and visibly in plaintiff's hand. But even with the aid of the street light and the direct beam of the headlights, Averett, we are told, still could not discern that the tire tool was not a gun.

Jenkins now reversed direction and came back toward the car in order to turn out of the street. He passed Bumpus' (the driver's) side of the police vehicle and continued to run. Averett got out, drew and cocked his pistol, and then chased his quarry about 60 feet. Averett says that as he ran he continued to be unable to espy the character of the article in Jenkins' hand. The officer yelled 'halt' and Jenkins halted, apparently

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in the light. According to all the witnesses, including Averett, Jenkins then dropped the tire tool and turned to face his pursuer. The tool made a distinct noise upon falling that was heard all around, and even Averett recalls that it dropped. Only a few feet away, and two or three seconds later, Averett relates, he lowered his gun, and in doing so accidentally pulled the trigger, putting a hole through Jenkins' thigh.

The appellant maintains that the shooting was deliberate. Indeed he testified that after he was shot, appellee took aim again, but by that time Bumpus, who had now also left the police car, appeared, and Averett then lowered the gun.

The two officers placed the wounded man in the back of the police car. Jenkins claims that Averett said, 'You better be glad my gun wasn't pointed at your God damned belly or you would have been dead.' The policeman admits having said that his captive was indeed lucky that the shot did not hit him in the stomach. At trial, Bumpus corroborated this milder version although in his pretrial deposition he had disclaimed any memory of such a statement.

Jenkins was not taken to the hospital immediately. Instead, although admittedly not according to police procedure, the officers drove to the police station first so that Averett could report in and ask for 'advice' on what to do about the bleeding boy in his custody. Averett concedes that this could have been accomplished as well by radio.

B. The Findings of the District Court

The District Judge generally credited defendant's story. He found that Averett suspected that Jenkins had a gun. He also found that Averett did not intend to shoot plaintiff. On the other hand, the District Judge found that defendant was grossly or culpably negligent. This finding is well supported by the record. Therefore, as will presently appear, there is no need to examine the other findings.


The State Claim

The District Judge held in favor of the plaintiff on the pendent state claim for assault and battery. Acknowledging that ordinarily intent is a necessary element in assault and battery, the court relied on the principle that gross or culpable negligence may supply that intent. This is a correct statement of the general rule. State v. Eason, 242 N.C. 59, 86 S.E.2d 744 (1955); State v. Agnew, 202 N.C. 755, 164 S.E. 578 (1932); State v. Sudderth, 184 N.C. 753, 114 S.E. 828 (1922). Moreover, with more particular reference to the facts of this case, it is settled in North Carolina that a police officer is liable for assault if he 'arbitrarily and grossly abuse(s) the powers confided to him' State v. Pugh, 101 N.C. 737, 7 S.E. 757 (1888); State v. Dunning, 177 N.C. 559, 98 S.E. 530 (1919). 'A grossly unnecessary, excessive, and wanton exercise of force would be evidence-- strong evidence' of abuse, to be weighed by the finder of fact. State v. Pugh 101 N.C. at 738, 7 S.E. at 758; Perry v. Gibson, 247 N.C. 212, 100 S.E.2d 341 (1957). In the present case no force was needed to restrain Jenkins. Since use of the unnecessary force was correctly found by the court below to amount to gross or culpable negligence, the imposition of liability on this count is affirmed.


The Federal Claim

The District Judge was of the opinion that Jenkins should not prevail under federal law. We do not agree, and hold that plaintiff has established the elements of recovery under 42 U.S.C. 1983.

A. The Constitutional Deprivation

The constitutional right to be free from unreasonable interference by police officers is incontrovertible. The Constitution has long been interpreted to embrace security from 'arbitrary intrusion by the police.' Wolf v. Colorado, 338 U.S. 25, 27, 69 S.Ct. 1359, 1361, 93 L.Ed. 1782 (1948) .

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This concept was reaffirmed when Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), made the Fourth Amendment fully applicable to the states. It should not be forgotten that the Fourth Amendment expressly declares 'the right of the people to be secure in their persons * * * against unreasonable searches and seizures.' And 'this inestimable right of personal security belongs as much to the citizen on the streets of our cities as to the homeowner closeted in his study to dispose of his secret affairs.' Terry v. Ohio, 392 U.S. 1, 8-9, 88 S.Ct. 1868, 1873, 20 L.Ed.2d 889 (1968).

It is likewise clear that this shield covers the individual's physical integrity. Injuries arbitrarily inflicted by the police are constitutionally cognizable and...

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