Landrum v. Moats

• Decision Date: 30 May 1978
• Docket Number: No. 77-1656,77-1656
• Citation: 576 F.2d 1320
• Parties: Leslie LANDRUM, Special Administratrix of the Estate of Roy Lee Landrum, Deceased, Appellant, v. John MOATS and Robert J. Rockwell, Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1320

576 F.2d 1320

Leslie LANDRUM, Special Administratrix of the Estate of Roy

Lee Landrum, Deceased, Appellant, v. John MOATS and Robert J. Rockwell, Appellees.

No. 77-1656.

United States Court of Appeals,

Eighth Circuit.

Submitted Jan. 11, 1978.

Decided May 30, 1978.

Charles O. Forrest, Omaha, Neb., argued and on brief, for appellant.

Timothy M. Kenny, Asst. City Atty., Omaha, Neb. (argued), and James E. Fellows, Omaha, Neb., on brief, for appellees.

Before BRIGHT, STEPHENSON, and HENLEY, Circuit Judges.

BRIGHT, Circuit Judge.

Leslie Landrum, special administratrix of the estate of her son, Roy Lee Landrum, brought a civil rights action under 42 U.S.C. § 1983 (1970) and a common law tort action against Omaha police officers John Moats and Robert Rockwell seeking damages for the shooting death of her son as he fled from the scene of a burglary. The jury found for the defendants, and the district court denied post-trial motions for judgment notwithstanding the verdict or a new trial. Plaintiff then brought this appeal asserting primarily that the district court erred in its rulings on these post-trial motions. In support of the verdict, appellees Moats and Rockwell contend that under an appropriate construction of Nebraska law they were not liable as a matter of law.

Based on our review of the record, we affirm the order of the district court denying judgment n.o.v. We reverse the order denying a new trial, however, and remand to the district court for a new trial.

I. Factual Background.

On August 15, 1975, at 2:40 a. m., a police dispatcher informed officers Rockwell and Moats that a burglary was in progress at a service station located at 4501 Florence Boulevard, Omaha, Nebraska. The officers proceeded immediately to the address. As they entered the driveway of the station, they saw the decedent, Roy Lee Landrum, exit through a window on the north side of the station, jumping onto some tires and debris and then down to the ground. Both officers leaped out of the car, and officer Rockwell hollered: "Stop, police."

Landrum apparently heard the shout and crouched down, looking directly at the officers. He then turned to the east and ran. Officer Moats fired a single shot at him while standing by the police car. The shot missed, and both officers chased Landrum, shouting at him to halt, until they reached the northeast corner of the station. There they stopped and began firing at Landrum as he ran away, each firing two shots almost simultaneously. One of the bullets struck Landrum in the back, killing him. ¹

No weapons were found on Landrum. At trial, both officers testified that they had no reason to believe that Landrum was a threat to their safety or to anyone else's. The officers justified the use of deadly force on the grounds that they believed that Landrum would escape unless they shot him. In doing so, both relied on a directive of the Omaha police department, effective at the time of the incident, that among other things permitted a police officer to use his firearm in the performance of his duty to

effect the arrest or capture, or prevent the escape or rescue, of a person whom the officer knows or has reasonable grounds to believe has committed a felony, when all other means have failed.

II. Subject Matter Jurisdiction.

Although neither party has raised the jurisdictional issue and the district court assumed jurisdiction, it is well settled that "(a)n appellate federal court must satisfy itself not only of its own jurisdiction, but also of that of the lower courts in a cause under review." Mitchell v. Maurer, 293 U.S. 237, 244, 55 S.Ct. 162, 165, 79 L.Ed. 338 (1934) (footnote omitted). Therefore, we deem it appropriate to discuss the federal jurisdictional basis for this action.

Shortly after the death of her son, on November 7, 1975, Leslie Landrum filed the present action in the United States District Court for the Eastern District of Nebraska. ² In count I of her complaint, she contended that officers Moats and Rockwell had deprived her son of constitutional rights, violations of which are actionable under 42 U.S.C. § 1983:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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.

Count II of the complaint was a pendent state tort claim for assault and battery.

In order for the court to have subject matter jurisdiction, the pleading must, on its face, state a cognizable claim for relief. In a section 1983 action, the plaintiff must be able to point to a specific, articulable constitutional right that is transgressed.

In the present case, plaintiff-appellant asserts violations of fourth, fifth, sixth, eighth, and fourteenth amendment rights:

That the acts of the Defendants, John Moats and Robert J. Rockwell, under color of law and under color of their authority as police officers of the City of Omaha, as hereinabove set out, deprived Roy Lee Landrum of his rights, privileges and immunities guaranteed to him as a citizen of the United States, by Amendments 4, 5, 6, 8 and 14 of the Constitution of the United States, to Plaintiff's damage in the sum of $1,000,000.00, and $3,000,000.00 punitive damages.

Although the complaint did not specify either the nature of the right violated or exactly which constitutional provision protected it and how, each of these amendments could be plausibly construed to forbid the use of deadly force on a fleeing felon who has not used violence in the commission of the felony and who poses no threat to anyone. ³

Plaintiff-appellant's vagueness is somewhat understandable, for while this court has entertained similar section 1983 actions in the past and assumed subject matter jurisdiction, ⁴ our sole decision clarifying the precise nature of our jurisdictional power was vacated on procedural grounds by the Supreme Court, and thus no longer stands as binding precedent. Mattis v. Schnarr, 547 F.2d 1007 (8th Cir. 1976) (Mattis II ) (en banc ), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977). See also Mattis v. Schnarr, 502 F.2d 588 (8th Cir. 1974) (Mattis I ) (three-judge panel). In Mattis, a case with facts nearly identical to this case, ⁵ this court ruled unconstitutional a Missouri statute that permitted the police to use deadly force to apprehend a fleeing felon who has used no violence in the commission of the felony and who does not threaten the lives of either the arresting officers or others. Prior to its holding on the merits, the court assumed jurisdiction by first declaring that an individual has a fundamental right to life, and then finding that right protected against unreasonable or unlawful taking by the procedural due process safeguards of the fifth and fourteenth amendments. 547 F.2d at 1017-20. The court declined, however, to find additional constitutional causes of actions implicit in the case based on the eighth amendment cruel and unusual punishment clause and the fourteenth amendment equal protection clause. Id. at 1020 n. 32.

Despite the vagueness of the complaint in this case, we find that it states a cause of action under section 1983 conferring jurisdiction on this court. In particular, we readopt the jurisdictional holding in Mattis II : The right to life is fundamental and is protected against unreasonable or unlawful takings by the procedural due process safeguards of the fifth and fourteenth amendments. In view of this holding, we need not consider whether the plaintiff Leslie Landrum has also asserted cognizable claims under the fourth, sixth, and eighth amendments. We note, too, that the circumstances here are distinguishable from Mattis. In Mattis the police officers relied upon a Missouri statute authorizing their use of deadly force. Here, as we discuss in part III A, the Nebraska statute in question restricted the police officers' privilege of using deadly force. ⁶

III. The Propriety of Judgment N. O. V.

As stated above, the parties essentially agree on the important facts of the case. Officers Moats and Rockwell conceded at trial that they had no reason to believe that the decedent, a burglary suspect, had used violence in the commission of the burglary or that he posed a threat to anyone's safety. ⁷ Both testified that they shot at the decedent to prevent his escape from arrest. For her part, Leslie Landrum does not dispute the existence of probable cause to arrest her son for a felony.

Given the above facts, Landrum proceeded under two alternative theories in prosecuting her section 1983 claim: (1) the shooting death of her son was a per se unreasonable taking of her son's life; or (2) even if not per se unreasonable, it was unreasonable given the circumstances. In addition, she argues here that the good faith defense normally provided police officers in section 1983 actions against them ⁸ was unavailable to these defendants because it had been expressly preempted by Nebraska law. We consider each of these points separately below.

A.

In support of her conclusion that the use of deadly force ⁹ against a fleeing, nonviolent felon is per se unreasonable, Leslie Landrum relies on this court's interpretation of the fourteenth amendment due process clause in Mattis II, ¹⁰ and section 28-839 of the Reissue of Revised Statutes of Nebraska, 1943.

We consider the statutory claim first. Section 28-839 provides, in relevant part, that:

28-839. Use of force in law enforcement. (1) Subject to the provisions of this section and of section 28-841, the use of force upon or toward the person of another is justifiable when the actor is making or assisting in making an arrest and the actor believes...