Carter v. City of Chattanooga, Tenn.

Decision Date07 November 1986
Docket Number84-5276,Nos. 84-5247,s. 84-5247
Citation803 F.2d 217
PartiesRosa CARTER, Administratrix of the Estate of Adrian Miles Carter, Deceased, Plaintiff-Appellant, Cross-Appellee, v. CITY OF CHATTANOOGA, TENNESSEE, Defendant-Appellee, Cross-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

John W. McClarty (lead), McClarty & Williams, Rheubin M. Taylor, Chattanooga, Tenn., for plaintiff-appellant, cross-appellee.

Eugene N. Collins, City Atty., Chattanooga, Tenn., Randall L. Nelson, for defendant-appellee, cross-appellant.

Before JONES and WELLFORD, Circuit Judges, and GILMORE, District Judge: *

GILMORE, District Judge.

In this case, plaintiff-appellant's son was shot and killed by Chattanooga police in December 1982 during an attempt to escape from the scene of a daytime burglary. Appellant sued under 42 U.S.C. Sec. 1983, claiming that her son's Fourteenth Amendment rights had been violated by both the officer and the city.

At the time of the shooting, the City of Chattanooga trained its police officers in accordance with Tennessee's "fleeing felon" statute, 1 which authorized the use of deadly force to apprehend a fleeing felon after notice of intent to arrest. Subsequently, however, this Court decided Garner v. Memphis Police Department, 710 F.2d 240 (6th Cir.1983), aff'd sub nom. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), holding that the statute, and a city policy based on it, authorized unconstitutional "seizures" under the Fourth Amendment as applied to those suspected of committing non-dangerous felonies, who were not armed nor otherwise apparently dangerous.

After this Court's decision in Garner, plaintiff amended her complaint to include a Fourth Amendment claim, and moved for summary judgment as to liability, asking to try only the issue of damages. This motion was denied. Both the city and the officer also moved for summary judgment. The trial court granted the officer's motion, based on qualified immunity, but denied the city's motion, holding that this Court's Sec. 1983 decision in Garner should be applied retroactively. The case was tried in January 1984, and the jury charged in accordance with our decision in Garner. The verdict was for the city, and this appeal followed. The city has cross-appealed, urging the Court to decide two additional issues, if it finds merit in plaintiff's claims of error.

Around 1:30 p.m. on December 21, 1985, Lt. Kyle and two other Chattanooga police officers arrived at 915 Vine Street in response to an indication from a silent burglar alarm. They observed that a window facing the carport was broken and open. Officer Eilders started to enter through the window but was restrained by Lt. Kyle, who felt that was too dangerous. Voices were heard from inside the house.

Lt. Kyle directed each of the others to cover a corner of the house. As he mounted the porch at the side of the home, he saw a male appear in the doorway, yell something, and disappear back into the house. Lt. Kyle radioed the dispatcher that there was a burglary in process and asked for additional units.

A fourth police officer arrived, and Lt. Kyle stationed him at a corner and went to the rear of the house to take the last remaining corner. Two men jumped off the porch on the right side of the house, and one (later identified as appellant's son, Carter) began running in a crouched position away from the house with an object in his right hand, which Lt. Kyle could not identify. Lt. Kyle twice ordered Carter to halt but he continued to run. As Carter approached the corner of the house, Kyle fired twice, slipped and fell. Carter was hit once, and died later at the hospital.

Lt. Kyle testified that Carter had said nothing to him or to the other officers prior to the shooting. He also testified that he had not attempted to chase Carter, and had shot him from some 45 to 55 feet away. He stated he had seen something in Carter's right hand, which later turned out to be a facecloth or a washcloth.

The verdict of the jury was for the city, and appellant has raised three issues on appeal. She first contends the trial court should have granted a motion for summary judgment on the issue of liability, allowing the jury to decide only the issue of damages. She next contends that the district court erred in denying her motion for judgment notwithstanding the verdict based on the evidence put before the jury, and she finally contends that she should be granted a new trial on the basis that the jury's verdict was against the great weight of the evidence.

Defendant has filed a cross appeal, arguing that the trial court erred in applying this Court's decision in Garner retroactively to deny the city summary judgment, and that the district court erred in sustaining an objection to its offer of proof by testimony of Chattanooga Police Commissioner Kennedy as to the nature of burglary as a violent crime in Chattanooga.

II

The first issue is whether the district court erred in applying the law of Garner in the trial of this case. In Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the Supreme Court of the United States, affirming this Court, held that the Fourth Amendment prohibits the use of physical force to prevent the escape of a suspected felon, unless it is necessary to prevent the escape, and unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. It thus held the Tennessee statute unconstitutional insofar as it authorized the use of deadly force to prevent the escape of an apparently unarmed suspected felon:

The use of deadly force to prevent the escape of all felony suspects, whatever the circumstances, is constitutionally unreasonable. It is not better that all felony suspects die than that they escape. Where the suspect poses no immediate threat to the officer and no threat to others, the harm resulting from failing to apprehend him does not justify the use of deadly force to do so.... A police officer may not seize an unarmed, nondangerous suspect by shooting him dead. The Tennessee Statute is unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects.

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.

471 U.S. at 11-12, 105 S.Ct. at 1701, 85 L.Ed.2d at 9-10.

The standards established by the Sixth Circuit, which were much the same as those of the Supreme Court, were used by the trial judge in charging the jury here.

The question is whether Garner should have been applied retroactively to the instant case. The incident involved here occurred on December 21, 1982. Garner was decided in this Court on June 16, 1983. Trial of this case commenced in January 1984, and Garner was decided in the Supreme Court of the United States on March 27, 1985.

As another panel of this Court recently pointed out, the general rule in civil cases is that a recent authoritative opinion interpreting the law should be applied to pending cases. In Lawson v. Truck Drivers, Chauffeurs and Helpers, etc., 698 F.2d 250, 254 (6th Cir.1983), the court said:

The normal rule is that in civil cases a recent authoritative opinion interpreting the law should be applied to pending cases unless it represents a "clean break" with the past and unless in addition it would be fundamentally unfair or otherwise burdensome to so apply it.

In considering the issue of nonretroactivity, the United States Supreme Court in Chevron Oil v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), set forth a three-pronged analysis in determining whether an appellate decision in a civil case should be applied prospectively only:

In our cases dealing with the nonretroactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ..., or by deciding an issue of first impression whose resolution was not clearly foreshadowed.... Second, it has been stressed that "we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." ... Finally, we have weighed the inequity imposed by retroactive application, for "[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the 'injustice or hardship' by a holding of nonretroactivity."

Id. at 106-07, 92 S.Ct. at 355.

Subsequently, in United States v. Johnson, 457 U.S. 537, 563, 102 S.Ct. 2579, 2594, 73 L.Ed.2d 202 (1982), the Court reiterated the Huson standards for civil retroactivity: "Finally, all questions of civil retroactivity continue to be governed by the standard enunciated in Chevron Oil Company v. Huson, 404 U.S. at 106-07 ."

An analysis of the three factors leads us to the conclusion that the trial court was correct in applying the standards of Garner retroactively.

In United States v. Johnson, supra, the Court discussed the three prongs of the Huson test:

In the civil context, in contrast, the "clear break" principle has...

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  • Carter v. City of Chattanooga, Tenn.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • June 27, 1988
    ...as Garner I; the one at 710 F.2d 240 as Garner II.3 A panel of this court considered the appeal and reached a decision reported in 803 F.2d 217 (6th Cir.1987). That decision has been vacated by our decision to hear this case en banc.4 The warnings given by the police were: "Halt, halt, or I......
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