Acoff v. Abston, 83-7248

• Decision Date: 12 June 1985
• Docket Number: No. 83-7248,83-7248
• Citation: 762 F.2d 1543
• Parties: Lewellyn ACOFF, Plaintiff-Appellant, Cross-Appellee, v. D.E. ABSTON, J.T. Reed, Individually and as Police Officers, Tuscaloosa, Alabama; the City of Tuscaloosa, Alabama, A Municipal Corporation, et al., Defendants-Appellees, Cross-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1543

762 F.2d 1543

54 USLW 2029

Lewellyn ACOFF, Plaintiff-Appellant, Cross-Appellee, v. D.E. ABSTON, J.T. Reed, Individually and as Police Officers,

Tuscaloosa, Alabama; the City of Tuscaloosa,

Alabama, A Municipal Corporation, et

al., Defendants-Appellees,

Cross-Appellants.

No. 83-7248.

United States Court of Appeals, Eleventh Circuit.

June 12, 1985.

John W. England, England & Bivens, P.C., Tuscaloosa, Ala., for plaintiff-appellant, cross-appellee.

Robert W. Ennis, IV, Asst. City Atty., City of Tuscaloosa, Tuscaloosa, Ala., for City of Tuscaloosa.

Robert B. Harwood, Jr., Tuscaloosa, Ala., for Abston & Reed.

Appeals from the United States District Court for the Northern District of Alabama.

Before RONEY and JOHNSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

JOHNSON, Circuit Judge:

Lewellyn Acoff filed this suit under 42 U.S.C.A. Sec. 1983 (West 1981) against the City of Tuscaloosa and police officers D.E. Abston and J.T. Reed. Acoff claimed that certain injuries inflicted on him by the officers violated his constitutional rights under the Fourth, Fifth and Fourteenth Amendments. Acoff appeals from the district court's order granting directed verdicts for all the defendants, while the defendants cross-appeal from an earlier denial of their motion to dismiss the complaint. We affirm the district court's denial of the motion to dismiss but on the basis of the Supreme Court's recent decision in Tennessee v. Garner, --- U.S. ----, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), we reverse the judgment in favor of the City and Officer Abston.

I. FACTS

Early on the morning of August 1, 1981, Officers Abston and Reed of the Tuscaloosa Police Department received instructions to investigate a possible burglary in progress at a downtown store. En route to the store they received several dispatches leaving them uncertain as to the number of burglars at the scene. The officers arrived at the scene and left the car carrying shotguns; Abston walked to the rear of the store and Reed walked to the front.

Reed walked past the front of the building and turned the corner before he encountered Acoff, a black male, standing beside the building. Reed shined his flashlight on Acoff and shouted "hey" and "police" before Acoff turned and ran. Reed then shouted "halt" ¹ and fired a warning shot into the air, but Acoff disappeared from sight before Reed began pursuit. As Reed began to run along the same route followed by Acoff, he broadcast over the walkie-talkie to Abston that a suspect was running towards University Boulevard.

At the rear of the building, Abston had heard his partner shout "police" and "halt" and then had heard a shot. Abston could not tell whether the shot had come from a shotgun. He then heard running footsteps but heard no walkie-talkie transmission, so he ran to intercept the suspect and saw Acoff running down University Boulevard. Acoff was holding a lug wrench and screwdriver in his hand but Abston could not identify the objects. Abston never shouted a warning. He fired the shotgun once and missed, then aimed a second shot at the "center mass" of Acoff's body and fired. Acoff was paralyzed from the neck down as a result of a gunshot wound to his back.

Abston testified that he had used deadly force in order to apprehend Acoff because he believed that Acoff might have burglarized the store and shot his partner and because Acoff was running too fast to be apprehended in any other way. Abston claimed not to know who had fired the shot he had heard. His decision to fire the shotgun was in keeping with the policy of the police department, ² which allegedly provided for the use of deadly force as a last resort in apprehending a person suspected of committing a "serious felony," including burglary. See ALA.CODE Sec. 13A-3-27(b) (1982).

Acoff filed this suit in the Northern District of Alabama on July 30, 1982. The defendants moved to dismiss the complaint against the City on the grounds that the claim was time-barred by a statute governing tort claims against municipalities. ALA.CODE Sec. 11-47-23 (1975). The district court denied the motion and the case proceeded to a jury trial. After the plaintiff had presented his evidence, the court directed verdicts in favor of all three defendants. The court reached this decision in favor of Reed because he had not shot Acoff and in favor of Abston and the City because the City policy governing use of deadly force was constitutionally permissible.

II. STATUTE OF LIMITATIONS

Acoff filed this suit almost one year after the shooting. The City moved for summary judgment based on the provisions of ALA.CODE Sec. 11-47-23 (1975):

All claims against the municipality ... shall be presented to the clerk for payment within two years from the accrual of said claim or shall be barred. Claims for damages growing out of torts shall be presented within six months from the accrual thereof or shall be barred.

Since Section 1983 does not contain a specific statute of limitations, 42 U.S.C.A. Sec. 1988 (West 1981) directs federal courts to select and apply the most appropriate or analogous state statute of limitations. Burnett v. Grattan, --- U.S. ----, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984); Board of Regents v. Tomanio, 446 U.S. 478, 483, 100 S.Ct. 1790, 1794, 64 L.Ed.2d 440 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975). So long as that analogous state provision is not inconsistent with the policies underlying the federal cause of action, Johnson, 421 U.S. at 465, 95 S.Ct. at 1722, a federal court may treat the state statute of limitations as controlling.

The Supreme Court's recent decision in Wilson v. Garcia, --- U.S. ----, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), bears on the choice of the most appropriate state statute of limitations. The Court ruled that federal law governs the characterization of Section 1983 claims for statute of limitations purposes and that all Section 1983 claims should be characterized as tort claims for recovery of damages for personal injury. Hence, the applicable statute of limitations in each state should be the one generally applicable to claims for personal injury. The federal policy of intra-state uniformity among different Section 1983 claims, relied upon by the Court in Wilson, would prevent federal courts from using a different statute of limitations in Section 1983 cases depending on whether a municipality were named as a defendant. This Court cannot, therefore, borrow Section 11-47-23 as the most appropriate and analogous state statute.

Federal courts in the past have applied ALA.CODE Sec. 6-2-34 (1975) to Section 1983 claims. Beard v. Stephens, 372 F.2d 685 (5th Cir.1967). That six-year statute applies to "trespass to person" such as assault and battery and is the most appropriate statute to apply to claims for personal injury caused by the direct wrongdoing of persons acting under color of state law. Other federal courts have applied ALA.CODE Sec. 6-2-39 (1975), governing "any injury to the person or rights of another not arising from contract and not specifically enumerated in this section," to personal injury claims under Section 1983. Pennick v. City of Florala, 529 F.2d 1242 (5th Cir.1976). Clearly one of these two statutes will encompass claims for recovery of damages for personal injury such as those under Section 1983. See Fomby v. City of Calera, 575 F.Supp. 221 (N.D.Ala.1983). We need not decide between the two statutes because Acoff has filed within the time limits set by either statute. The district court properly denied the defendants' motion to dismiss. ³

III. USE OF DEADLY FORCE

Testimony at trial indicated that the Tuscaloosa Police Department might have used a modified version of the statewide policy ⁴ regarding the use of deadly force to effect an arrest. According to the testimony, police officers in Tuscaloosa could use deadly force to the extent they reasonably believed was necessary to arrest a person for commission of a "serious" felony such as murder, rape, robbery, burglary, and arson. Acoff contends that the policy is unconstitutional and that its application to him deprived him of his constitutional rights under the Fourth and Fourteenth Amendments.

The Supreme Court recently ruled upon a similar claim in Tennessee v. Garner, --- U.S. ----, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In that case, a Memphis Police Officer shot and killed a suspect, Garner, fleeing the scene of a burglary despite the fact that the officer was reasonably certain that Garner was unarmed. The Court ruled that the shooting constituted a seizure of Garner and that it was unreasonable even though the officer had probable cause to arrest him. After balancing the nature and quality of the intrusion on Garner's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion, see Delaware v. Prouse, 440 U.S. 648, 653-55, 99 S.Ct. 1391, 1395-97, 59 L.Ed.2d 660 (1979), the Court arrived at a standard defining the reasonable use of deadly force to seize a person. Where a police officer

has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.

105 S.Ct. at 1701.

The Garner standard contains three elements. First, an officer must have probable cause to believe that the suspect poses a threat of serious physical harm to the officer or to others. Probable cause of this sort exists where the suspect actually threatens the officer with a weapon or where there is probable cause to believe...