Wiley v. Memphis Police Dept., 75-2321

• Decision Date: 10 February 1977
• Docket Number: No. 75-2321,75-2321
• Citation: 548 F.2d 1247
• Parties: Martha WILEY, mother and next of kin of Fred Lee Berry, a Deceased minor, Plaintiff-Appellant, v. MEMPHIS POLICE DEPARTMENT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1247

548 F.2d 1247

Martha WILEY, mother and next of kin of Fred Lee Berry, a

Deceased minor, Plaintiff-Appellant, v. MEMPHIS POLICE DEPARTMENT et al., Defendants-Appellees.

No. 75-2321.

United States Court of Appeals, Sixth Circuit.

Argued Oct. 13, 1976.

Decided Feb. 10, 1977.

G. Philip Arnold, Ratner, Sugarmon, Lucas & Salky, Memphis, Tenn., William E. Caldwell, Paul R. Dimond, Washington, D.C., Jack Greenberg, New York City, for plaintiff-appellant.

Arthur J. Shea, Charles V. Holmes, Asst. City Attys., Memphis, Tenn., for defendants-appellees.

Robert S. Catz, Howard S. Scher, Gerald J. Wein, Urban Law Institute, Inc., Washington, D.C., amicus curiae.

Before WEICK and McCREE, Circuit Judges, and MILLER, ^* Judge of the United States Court of Customs and Patent Appeals.

WEICK, Circuit Judge.

This is an appeal from a judgment for the defendants after a non-jury trial of an action seeking $1,000,000 damages and declaratory relief, brought by Martha Wiley against police officers and municipal defendants. Wiley sued for the alleged wrongful death of her son, Freddie Lee Berry, who was nearing his seventeenth birthday when he was shot and killed in the night season while fleeing from a sporting goods store in which the police officers had observed him and two companions in the commission of a burglary.

Jurisdiction of the Court was invoked under 28 U.S.C. §§ 1331(a), 1343(3), and 1343(4) for alleged causes of action under 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988, and under the Fourth, Fifth, Sixth, Eighth, Thirteenth and Fourteenth Amendment to the Constitution. Pendent jurisdiction was invoked seeking similar relief under Tennessee law.

Plaintiff challenged the deadly force policy of the City of Memphis and the Memphis Police Department (MPD), which policy authorized police officers to use deadly force whenever they deemed it necessary to effect the arrest of a felon. Plaintiff claimed that such policy was a violation of the constitutional rights of her decedent. The defense was that such policy was specifically authorized by and conformed to Tenn. Code Ann. § 40-808, which provides:

Resistance to Officer. If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.

Jury was waived and the trial was held by the Court over a period of four days. The Court gave careful consideration to all of the issues and handed down a Memorandum Opinion consisting of twenty-two pages, in which it made findings of fact and adopted conclusions of law. The findings with respect to the burglary, the attempts of the officers to arrest the burglars, and the shooting, are appended hereto as Exhibit "A".

Briefly, the facts are that on the night of January 8, 1972, officers Calliham, Roleson, Cox and Richards responded to a radio dispatch about prowlers inside a sporting goods store in Memphis, Tennessee. Officer Calliham went to the front door of the store and saw three black males inside, in the area of a soft drink machine. Officer The complaint named as defendants the Memphis Police Department (MPD), the City of Memphis, Tennessee, Bill Price, Chief of Police of Memphis, Wyeth Chandler, Mayor of Memphis, Henry Loeb, former Memphis Mayor, M. J. Calliham, R. D. Roleson, B. J. Cox, J. K. Richards, W. W. Wannamaker, and Jule Ray, all Police Officers of the City of Memphis, and John Doe and others similarly situated.

Calliham yelled to the males to come out; they looked up and dispersed. Officers Cox and Richards were informed by Calliham as to what he had seen, and those officers drove to the northeast area behind the building. As they were getting out of their car they saw two black males run from the rear of the south portion of the building. It was raining but the storage lot was lighted and the officers could see the two youths who either climbed over or went under the fence into a large drainage ditch. As found by the Court, it was "dark and obscure" along the drainage ditch, and the area was cluttered with brush and debris. Officers Richards and Cox repeatedly yelled for the fleeing youths to "halt," but they paid no heed and kept on running. Both officers decided to fire at the youths. A subsequent search of the area revealed Freddie Lee Berry, plaintiff's decedent, critically wounded, lying approximately 208 feet down the ditch from the point where Cox and Richards had fired. The officers' investigation revealed also a "stash" consisting of two shotguns and ammunition taken from the sporting goods store and placed in the ditch near the spot where Berry was found. The second suspect escaped but later surrendered at police headquarters. The third youth was captured when he was found hiding in the sporting goods store.

The complaint charged that MPD, the City, the Chief of Police, the Mayor and former Mayor, all were responsible for the policies, practices, customs and usages pertaining to the use of firearms by the police officers, which policies violated the constitutional rights of plaintiff's decedent resulting in his death.

The facts as found by the District Judge, however, were that these policies, practices, customs and usages were authorized by the Legislature of Tennessee in its enactment more than one hundred years ago, of the present language of T.C.A. § 40-808, hereinabove set forth. This language appeared as Section 5040 of the Tennessee Code of 1858, the first official code of Tennessee, and embodied the common law of that State. Love v. Bass, 145 Tenn. 522, 529, 238 S.W.94 (1921); Reneau v. State, 70 Tenn. 720 (1879).

The Court made the following findings with respect to plaintiff's decedent:

Berry, beginning at a very early age, had been the subject of frequent proceedings in the Memphis Juvenile Court, including two formal adjudications in the nature of criminal proceedings. He was found guilty of burglary at age 13 and placed on probation, but a year later he was expressly found to have committed a delinquent act and ordered as a delinquent to a state juvenile institution indefinitely. After release, he was later the subject of other charges, including school problems similar in character to those preceding commitment. (Footnotes omitted).

(App. 000238)

The Court further found that the officers did not know that two of the burglars were juveniles, and that the officers acted in good faith. The Court stated:

Both defendants Cox and Richards were familiar with the SBM Co. location; both had investigated prior burglaries there; they had driven around the building through its front parking lot onto Ferguson Street; and they had driven to the back of the building through the adjacent parking area to the south and behind neighboring buildings to the south. They both knew about the ditch and the direction in which it ran and the fence surrounding it. At the time there was considerable brush and bushes in the area, and debris in the ditch. It was possible for Cox and Richards to have driven along side the ditch by proceeding Under the peculiar circumstances night darkness, rain, intervening barbed wire fences, the distance between them and the suspects and availability of cover, neither Cox nor Richards could reasonably expect to chase or otherwise catch or capture the fleeing felons. They could not be sure the suspects were not armed. The court finds that these alternatives to the use of deadly force in the circumstances of this case were not available to defendants Cox and Richards, if they were to attempt to apprehend Berry and his companion in crime.

back on Ferguson, turning onto Bellevue and going around to the parking area to the south nearby the place the youths were running down the ditch, but it was likely they would have escaped just as Lurry actually did that very night.

Both officers Cox and Richards testified that they shot without attempting merely to wound or incapacitate the fleeing two, and that they were trained that whenever they use their firearms to "shoot to kill." At the distance involved and under these circumstances, any attempt merely to cripple or to wound would probably have been ineffectual. Defendant Lux denied that Memphis police were, in fact, instructed to shoot to kill in all fleeing suspect circumstances. It would appear that they were instructed to fire at the torso.

(App. 000242-43)

The defendants, Cox and Richards, employed the only practicable means available to them under peculiarly difficult circumstances requiring split second judgment to prevent the deliberate attempt to escape of one caught in the midst of a felonious burglary. Plaintiff failed to carry the burden of proving that Cox or Richards either knew or should have known that Berry was a juvenile. These officers could not surely have known whether defendants were or were not armed, and it later developed that stolen weapons were indeed nearby and available to them. To ascribe to plaintiff's counsel's contentions under these facts would be to recognize a felon's constitutional right to escape if the only reasonable and practicable means to prevent it were to employ potentially lethal force by use of a firearm. This is indeed borne out by Lurry's successful escape under these identical circumstances. In a real sense, this court is being called upon by plaintiff to rule the allowable Tennessee law procedures, more stringently applied in Memphis by the MPD, to be declared unconstitutional in the face of a three judge court's contrary determination less than a year before this episode. This court agrees with the opinion there expressed, 323 F.Supp. 1075, that "this is a policy decision for the Tennessee Legislature or perhaps the Tennessee courts and not for federal courts in the guise of constitutional adjudication. Compare the concurring opinion of Judge McCree in Beech v. Melancon, supra. In any event, Cox cannot be held liable because his actions cause no harm or damage to plaintiff. Berry...