Pruitt v. City of Montgomery, Ala., 84-7571

• Citation: 771 F.2d 1475
• Decision Date: 24 September 1985
• Docket Number: No. 84-7571,84-7571
• Parties: Darryl PRUITT, Plaintiff-Appellee, v. The CITY OF MONTGOMERY, ALABAMA, et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 1475

771 F.2d 1475

Darryl PRUITT, Plaintiff-Appellee, v. The CITY OF MONTGOMERY, ALABAMA, et al., Defendants-Appellants.

No. 84-7571.

United States Court of Appeals, Eleventh Circuit.

Sept. 24, 1985.

Robert C. Black, Hill, Hill, Carter, Franco, Cole & Black, Montgomery, Ala., for defendants-appellants.

N. Gunter Guy, City Atty., Montgomery, Ala., for City of Montgomery.

Charles A. Graddick, Atty. Gen., Joseph G.L. Marston, III, Asst. Atty. Gen., Montgomery, Ala., for intervenors, State of Ala. and Atty. Gen. of Ala.

Ira A. Burnim, Dennis Charles Sweet, III, Montgomery, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before FAY and ANDERSON, Circuit Judges, and GIBSON ^*, Senior Circuit Judge.

R. LANIER ANDERSON, III, Circuit Judge:

Appellant City of Montgomery (the "City") challenges a jury verdict in favor of appellee Darryl Pruitt ("Pruitt") on Pruitt's claim under 42 U.S.C.A. Sec. 1983 that a Montgomery police officer's unconstitutional use of "deadly force" caused him severe and permanent physical injury. The district court held, based upon its earlier decision in Ayler v. Hopper, 532 F.Supp. 198 (M.D.Ala.1981), that the City's "deadly force" policy was unconstitutional as applied to the shooting of an unarmed fleeing burglary suspect. Finding no issue of disputed material fact on the question of the City's liability, the district court granted partial summary judgment to Pruitt. The court then submitted the issue of damages to the jury which came back with a $100,000 verdict in Pruitt's favor. We affirm.

I. BACKGROUND

On the night of September 1, 1982, Pruitt, an 18-year old, and four of his friends were walking in a commercial district in downtown Montgomery, Alabama. Pruitt went to a wooded area behind an auto parts store located at 614 Fairview Avenue with one of his friends, a young woman, and had sexual intercourse with her. Meanwhile, a citizen who had heard noises behind the store reported to the police that a possible burglary was in progress. ¹ Among the first two police officers to respond to the reported burglary was Lester Kidd ("Kidd"). He arrived as a passenger in a police car driven by his senior officer. The senior officer dropped Kidd off at a street intersecting with Fairview Avenue about two doors from the auto parts store. The senior officer proceeded in the police car to the front of the store. Meanwhile, Kidd walked through a wooded area toward the rear of the store.

As Kidd approached the rear of the store, the senior officer informed Kidd by walkie-talkie that two suspects had been apprehended in front of the store. Kidd walked two or three steps further toward the rear of the store and then Pruitt came out from behind some bushes or brush, approached or "came at" Kidd (at which point Kidd and Pruitt were in close proximity to one another), and then took off running away from the back of the store through the woods. To summarize, ² at this point Kidd yelled "halt, police" several times, Pruitt failed to heed Kidd's command, and Kidd fired his weapon at Pruitt. Kidd believed that this shot had not hit Pruitt, and he fired his shotgun a second time. This second shot hit Pruitt in the buttocks area. Pruitt's injuries required extensive medical treatment and hospitalization, and have resulted in permanent and serious injury to one of Pruitt's legs which has been described in expert testimony as paralysis.

In August 1983, Pruitt filed suit under 42 U.S.C.A. Sec. 1983 against the City, Montgomery Mayor Emery Folmar, Chief of Police Charles Swindall, and Kidd, alleging violations of the Fourth, Fifth, and Fourteenth Amendments. However, the only defendant before us on appeal is the City. ³ Pruitt also alleged pendent Alabama state claims of assault and battery, and negligence. On July 12, 1984, after presentation of affidavits and other evidence, and full briefing of the issues, the district court issued an order in response to the parties' cross-motions for summary judgment. First, relying on its prior holding in Ayler v. Hopper, 532 F.Supp. 198 (M.D.Ala.1981), the district court reiterated (1) "that the use of deadly force to stop a fleeing or escaping felon constitute[s] a civil rights violation actionable under Sec. 1983 'unless the [state] official has good reason to believe that the use of such force is necessary to prevent imminent, or at least a substantial likelihood of, death or bodily harm,' " and (2) that Ayler had held the Alabama "fleeing felon" statute unconstitutional to the extent that it authorized the use of deadly force by police in other circumstances. District Court Order at 3-4, Record, vol. II at 92-93 (quoting Ayler, 532 F.Supp. at 201).

The district court then proceeded to grant partial summary judgment in favor of Pruitt under the standard set out in Ayler, concluding that no issue of material fact had been raised by the instant case. Based on Kidd's deposition testimony, the district court found that the sole reason Kidd shot Pruitt, a fleeing unarmed burglary suspect, was to prevent Pruitt from escaping, not because Pruitt posed a threat of death or bodily injury to Kidd or others. District Court Order at 4, Record, vol. II at 93. ⁴ The court, therefore, granted summary judgment against the City and in favor of Pruitt on the issue of Sec. 1983 liability only. ⁵ In addition, the court found that the City was liable for Kidd's unconstitutional use of deadly force because Kidd had been acting pursuant to the City's deadly force policy (which itself was based upon the Alabama statute). ⁶ Id. at 93; see also Kidd Deposition (hereafter cited as "K.Dep.") at 9-14.

The district court sent the Sec. 1983 claim to the jury on the issue of damages and the jury returned a verdict for $100,000. Pursuant to Fed.R.Civ.P. 54(b), the court entered final judgment for Pruitt against the City. This appeal ensued. ⁷

II. DISCUSSION

A. Legal Standard

On March 27, 1985, the United States Supreme Court decided the case of Tennessee v. Garner, --- U.S. ----, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). In Garner, the Court considered the constitutional validity of the Tennessee "fleeing felon" statute which codified the common law rule that after a police officer gives a felony suspect notice of intention to arrest the officer "may use all necessary means to effect the arrest" if the suspect flees or forcibly resists. Tenn.Code Ann. Sec. 40-7-108 (1982); see Garner, --- U.S. at ---- & n. 5, 105 S.Ct. at 1698 & n. 5, 85 L.Ed.2d at 5 & n. 5. The evidence produced at trial in Garner indicated that a Memphis police officer shot and killed an unarmed, fleeing burglary suspect in order to apprehend him.

First, the Supreme Court held that the shooting itself was a "seizure" within the meaning of the Fourth Amendment and was thus subject to that amendment's "reasonableness" requirement. Id. at ----, 105 S.Ct. at 1699, 85 L.Ed.2d at 7. Second, the Court held that "[t]he use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable.... Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failure to apprehend him does not justify the use of deadly force to do so.... The Tennessee statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects." Id. at ---- - ----, 105 S.Ct. at 1700-1701, 85 L.Ed.2d at 9-10. The Court continued:

It is not, however, unconstitutional on its face. Where the 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. As applied in such circumstances, the Tennessee statute would pass constitutional muster.

Id. at ----, 105 S.Ct. at 1701, 85 L.Ed.2d at 10.

Finally, the Court applied the above-described rule to the facts before it, and found "the statute unconstitutional insofar as it purported to give [the officer] the authority to act as he did...." Id. at ----, 105 S.Ct. at 1706, 85 L.Ed.2d at 16.

As the parties agree, the Alabama "fleeing felon" statute also attempts to preserve the common law rule, Garner, --- U.S. at ---- n. 14, 105 S.Ct. at 1703 n. 14, 85 L.Ed.2d at 12 n. 14, and is, therefore, under Garner, ⁸ subject to both constitutional and unconstitutional applications. ⁹ Accord, Acoff v. Abston, 762 F.2d 1543, 1547 (11th Cir.1985).

We turn, then, to the question whether, under the standard set out in Garner, the district court's grant of summary judgment in favor of Pruitt was proper. ¹⁰

B. Summary Judgment

Although the pre-trial depositions of both Kidd and Pruitt were presented to the district court, the City has only placed Kidd's deposition in the record on appeal. We now review that deposition in detail, quoting from it liberally, to determine whether Kidd "had probable cause to believe that [Pruitt] pose[d] a threat of serious physical harm to the officers or to others." Garner, --- U.S. at ----, 105 S.Ct. at 1701, 85 L.Ed.2d at 10.

Early in his deposition, Kidd gave the following description of the incident which ensued as he approached the back of the auto parts store:

I had the shotgun. After I flipped [my flashlight] back down I took the shotgun back into my hand. I was going at low port. I took about three steps and then the subject came out of the bushes. He came at me and I went up with my shotgun at high port, and once I went up at high port the subject veered to the right and then when he veered then I yelled "halt, police". At this...