528 F.2d 132 (2nd Cir. 1975), 55, Jones v. Marshall

Docket Nº:55, Docket 74-2545.
Citation:528 F.2d 132
Party Name:Flozell JONES, Administrator of the Estate of Dennis Jones, Appellant, v. Keith MARSHALL, Appellee.
Case Date:November 24, 1975
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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528 F.2d 132 (2nd Cir. 1975)

Flozell JONES, Administrator of the Estate of Dennis Jones, Appellant,


Keith MARSHALL, Appellee.

No. 55, Docket 74-2545.

United States Court of Appeals, Second Circuit

November 24, 1975

Argued Sept. 3, 1975.

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Louis I Parley, West Hartford, Conn. (Bruce C. Mayor, Hartford, Conn., on the brief), for appellant.

Robert Y. Pelgrift, Hartford, Conn., for appellee.

Before SMITH, MANSFIELD and OAKES, Circuit Judges.

OAKES, Circuit Judge:

This appeal presents the question whether a civil rights action lies, under 42 U.S.C. § 1983, against a police officer who, in the course of his duty, shoots and kills a person who has committed a felony and is trying to escape arrest. The crime involved here-auto theft-did not involve conduct threatening use of deadly force; nor was there, at the time of the shooting, substantial risk that the person fleeing arrest would cause death or serious bodily harm to anyone if his apprehension were delayed. The United States District Court for the District of Connecticut, M. Joseph Blumenfeld,

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Judge, granted the defendant police officer's motion for summary judgment, holding that the Connecticut common law rule as stated in Martyn v. Donlin, 151 Conn. 402, 198 A.2d 700 (1964), affords a privilege, in the circumstances of this case, to an officer using deadly force who reasonably believes such force is necessary to effect an arrest for a felony. Judge Blumenfeld ruled that since the Connecticut privilege is not unconstitutional, it affords a defense to the § 1983 action for deprivation of the fleeing persons's life without due process of law. 383 F.Supp. 358 (D.Conn.1974). 1 We affirm.

The parties have stipulated the following facts. On August 29, 1969, Officer Marshall of the West Hartford Police Department was cruising in his patrol car in the ordinary course of his duties. While on patrol he observed a Cadillac automobile occupied by three Negro males, including the appellant's decedent, Dennis Jones, traveling in the vicinity of the Hartford Golf Club. Through radio contact with headquarters, Marshall received the information that the Cadillac had been reported as stolen, so he began to follow it as it drove through the Golf Club and adjacent streets. Both cars proceeded for several blocks, neither exceeding 35 to 40 miles per hour nor violating any traffic regulations. While following the car Officer Marshall did not activate his siren or warning light or make any attempt to cause the car to come to a stop. He was then informed over his radio that assistance from the Hartford Police Department was on the way.

Evidently the individuals in the Cadillac became aware that they were being followed because after circling back onto Mark Twain Drive from Dillon Road, they accelerated to about 80 miles per hour and drove north on Mark Twain Drive. After traveling several blocks at that speed the car reached the end of the Mark Twain Extension and skidded to a halt. Officer Marshall, who had followed, also came to a sliding stop, and the braking of both cars created a large cloud of dust. The officer alit from his cruiser with his weapon drawn. Since the occupants of the car were not immediately visible he climbed to the top of a nearby embankment. At that point he observed two men running across an open field and called to them to halt. They momentarily turned to face him, but then turned and began to run away toward a nearby wooded area. Without firing a warning shot or attempting any further means of apprehension, Officer Marshall fired his gun at Dennis Jones, who was then about 125 feet away across rough terrain which contained a gully and was covered with bushes and underbrush. The shot was aimed at the decedent's leg, but struck him in the left buttock, causing internal injuries which resulted in his death. It is stipulated that neither Dennis Jones nor the other two occupants of the car, all of whom were minors approximately 16 years old, were armed or had specifically threatened 2 physical injury in any manner to Officer Marshall or anyone else. It is also stipulated that the automobile pursuit did not endanger any other individual than the occupants, although had the chase continued obviously it might have. 3

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It was agreed by the parties that the law in Connecticut at the time of the shooting in this case was that theft of a motor vehicle was a felony offense, Conn.Gen.Stat. § 53a-119, 4 but that joyriding was only a misdemeanor, Conn.Gen.Stat. § 14-229 (use without owner's permission). 5 The common law rule in Connecticut is that an arresting officer may use such force as he reasonably believes to be necessary under all of the circumstances to effect a legal arrest and to prevent an escape. The use of force likely to cause death, however, is privileged only if the officer reasonably believes that a felony has been committed by the individual sought to be apprehended and the force used was actually and reasonably believed by him in good faith to be necessary to effect the arrest. See Martyn v. Donlin, supra, 151 Conn. at 411-12, 198 A.2d at 705-06. 6 During a codification and revision of Connecticut's criminal laws occurring after the facts in this case, the Martyn rule was retained and codified as a part of the Connecticut criminal law. 7

The appellant's argument involves two simple steps. First, that in actions

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brought under the federal civil rights statutes the law to be applied is federal law-while reference may be made to state or other law consistent with the United States Constitution, it is not mandatory, as a matter of choice of law, that state law be applied. Second, federal decisions and modern policy indicate that the federal rule to be applied in actions under the federal civil rights statutes, e.g., 42 U.S.C. §§ 1983, 1985(3), it that use of deadly force is not permissible in the case of any escape where a felony has been committed except in a few limited situations essentially embodied in ALI Model Penal Code § 3.07 (Proposed Official Draft 1962). 8 Appellant argues that the use of force is justifiable 'only where the arresting officer 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.' Id.

Appellant further argues that the common law rule in Connecticut lacks logical support, is based upon historically outmoded concepts of outlawry and trial by ordeal and has been uniformly disapproved by scholars. 9 In contract, appellant argues, the Model Penal Code rule,

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which has been adopted in form or substance in a number of states by statute, 10 is consistent with the laws and Constitution of the United States and the needs of law enforcement personnel. He therefore concludes that the rule of the Model Penal Code should be adopted in this case under 42 U.S.C. § 1983.

The appellee's position is less complex. He assumes that since the challenged law of Connecticut, as expressed in Martyn v. Donlin, supra, and in the new Connecticut Penal Code, is constitutional, in that it does not 'shock the conscience,' Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); United States v. Toscanino, 500 F.2d 267, 273 (2d Cir. 1974), or otherwise offend any constitutional principle, it is therefore the applicable rule in the case. This was the position taken by Judge Blumenfeld in his decision below. 383 F.Supp. at 362.

With this view, however, we cannot agree. It has long been understood that in interpreting the scope of § 1983 we are not bound by the state law of torts or the defenses of privilege that law provides. In an unbroken line of Supreme Court cases which includes Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1879); United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941); Screws v. United States, 325 U.S. 91, 109-11, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945); Williams v. United States,341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Monroe v. Pape, 365 U.S. 167, 183-87, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967), and Scheuer v. Rhodes, 416 U.S. 232, 237-38, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the conduct of police officers and other state officials has, both civilly (Monroe, Pierson, Scheuer) and criminally (Classic, Screws, Williams), been held subject to standards demanded by the Constitution of the United States, regardless of approbation by state law. 11 This is necessarily so because one of the principal purposes underlying the Civil Rights Acts of 1871 and 1875 was to protect individuals against '(m)isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law . . ..' United States v. Classic, supra, 313 U.S. at 326, 61 S.Ct. at 1043. See 1 B. Schwartz, Statutory History of the United States: Civil Rights 591-653 (1970 ed.). See generally Monroe v. Pape, supra, 365 U.S. at 173, 81 S.Ct. 473. The phrase in Section 1 of the Act of April 20, 1871, 17 Stat. 13 (known as Civil Rights Act of 1871 and also as 'the Ku Klux Act'), as amended, 42 U.S.C. § 1983, which provides for liability, 'any . . . law, statute, ordinance, regulation, custom or usage of the State to the contrary notwithstanding,' makes this patently clear. A state rule of immunity or privilege which allows a state officer to escape liability for a deprivation of 'rights, privileges, or immunities secured by the Constitution of the United States' is simply not controlling under 42 U.S.C. § 1983.

At the same time not every tort committed against a private person by an official acting under state law rises to the deprivation of a constitutional right; that is to say, there is no 'general...

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