850 F.2d 1119 (6th Cir. 1988), 84-5247, Carter v. City of Chattanooga, Tenn.
|Docket Nº:||84-5247, 84-5276.|
|Citation:||850 F.2d 1119|
|Party Name:||Rosa CARTER, Administratrix of the Estate of Adrian Miles Carter, deceased, Plaintiff-Appellant, Cross-Appellee, v. CITY OF CHATTANOOGA, TENNESSEE, Defendant-Appellee, Cross-Appellant.|
|Case Date:||June 27, 1988|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Argued Aug. 5, 1987.
John W. McClarty (Lead) (argued), McClarty & Williams, Rheubin M. Taylor, Chattanooga, Tenn., for plaintiff-appellant cross-appellee.
Eugene N. Collins, City Atty., Chattanooga, Tenn., Randall L. Nelson (argued), for defendant-appellee cross-appellant.
Before ENGEL, Chief Judge [*], and LIVELY, KEITH, MERRITT, KENNEDY, MARTIN, JONES, KRUPANSKY, WELLFORD, GUY, NELSON, RYAN, BOGGS and NORRIS, Circuit Judges.
WELLFORD, Circuit Judge.
Adrian M. Carter was shot and killed by a Chattanooga police officer, Paul Kyle, on December 21, 1982 as he fled from the scene of a burglary. Carter's mother as
administratrix brought suit against the officer and the City under 42 U.S.C. Sec. 1983, claiming a violation of the Fourteenth Amendment right of due process of law. At the time, there was in effect in Tennessee a so-called "fleeing felon" statute, TCA 40-808 (1975), recodified in 1982 as TCA 40-7-108. 1 This law had been in effect in Tennessee for many years, and authorized the use of deadly force as a reasonable last resort to apprehend a fleeing felon after notice of intent to arrest. Prior to the trial of the issues in this case, we 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), which held that this Tennessee statute, and a City of Memphis policy based thereon, could not constitutionally be applied under the Fourth Amendment to a "seizure," a fatal shooting of a suspect, even if reasonably believed to have committed a felony, under certain circumstances. (The circumstances in Garner were that the fleeing suspect who was shot and killed by police was a minor who was neither armed nor otherwise apparently dangerous and who had not, to the knowledge of the pursuing police, been involved in a crime involving serious harm or violence to others.)
Our 1983 decision in Garner came about following our remand of the issues to the district court at 600 F.2d 52 (6th Cir.1979). 2 Following Garner II, the district court permitted the plaintiff to amend her complaint to assert a Fourth Amendment claim, but it denied plaintiff's motion for a summary judgment on the issue of liability. Both the individual police officer, Kyle, and the City of Chattanooga also moved for summary judgment. Based on his claim of qualified immunity, the district court granted the officer's summary judgment motion, while at the same time denying the City's motion on the grounds that application of Garner II precluded this action. At the trial in January of 1984, the district court instructed the jury based on principles set out in Garner II, which had been finally decided by this court only a few months before the trial. The jury returned a verdict for the City, and plaintiff has appealed. 3
Facts in this case are set out based on essentially uncontradicted testimony. There is no dispute but that Adrian Carter and an associate had broken into a Chattanooga residence and were in the process of a burglary when interrupted by the arrival of the uniformed police alerted by activation of a silent burglar alarm. Both Carter and his cohort in crime attempted to escape when they saw the police, and the latter was apprehended at the scene. Carter, however, jumped from a second floor porch to the ground and ignored a call 4 to halt by Kyle, an experienced police officer with more than twenty years of service, who then shot the fleeing Carter. Kyle testified that he noticed that Carter had an object in his hand that Kyle could not identify as Carter ran in a crouched position from the burglary scene. 5 Kyle shot Carter at a distance of some fifteen to twenty yards and made no attempt to chase him while shouting the warning to stop. Kyle had cautioned another officer at the burglary scene not to enter the house at the place where the burglar or burglars had apparently broken in, because he felt it was too dangerous. The jury rendered a verdict for the City.
The plaintiff appealed from the jury verdict for the defendant City and from the district court's refusal to grant a judgment notwithstanding that verdict and/or to grant for a new trial. (No appeal was
taken from the grant of summary judgment to defendant Kyle.)
The district court in this case declined to grant either of the remaining parties' motions for summary judgment holding that the principles set out in Garner II should be retroactively applied and that there were material issues to be submitted to the jury which had been requested by defendant. Judge Milburn, the trial judge, after overruling the parties' motions for a directed verdict, instructed the jury accordingly and the jury returned a verdict for the defendant City. Plaintiff moved in the alternative for a judgment notwithstanding the verdict and/or for a new trial. The district court denied these motions and judgment was entered for the City based upon the sufficiency of evidence to support the verdict and that "reasonable minds" could have reached "different conclusions" on that evidence. Plaintiff now appeals from the entry of judgment for defendant City and the court's refusal to grant her post-verdict motions.
Subsequent to the appeal taken by plaintiff, the Supreme Court affirmed our decision in Garner II in a decision reported as Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), which held that the Fourth Amendment prohibited the use of deadly force under the circumstances of that case. Use of such force was permissible only if used as a last resort to prevent escape of a suspect, when the police officer had probable cause to believe that he was a felon, gave a warning where feasible, and the suspected felon posed a direct threat of death or serious injury to the officer or to others in the community. The court put it succinctly that "[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead," but it refused, at the same time, to rule that Tennessee's fleeing felon statute, relied upon here by the City of Chattanooga, was "unconstitutional on its face." 471 U.S. at 11, 105 S.Ct. at 1701.
II. RETROACTIVITY OF GARNER II
Plaintiff argues that Tennessee v. Garner standards properly should have been retroactively applied to this case, and that by reason of such application, she should have been granted either a summary judgment on the question of liability or a judgment notwithstanding the verdict. In considering the issue of whether or not to apply retroactively a decision in a civil case, we look to Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), which enunciated a three part analysis:
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 (citations omitted).
These standards enunciated in Chevron Oil have been repeatedly reaffirmed and clarified as applying the appropriate principles in civil cases of this kind:
In the civil context, in contrast, the "clear break" principle has usually been stated as the threshold test for determining whether or not a decision should be applied nonretroactively. See e.g., Chevron Oil Co. v. Huson, 404 U.S. 97, 106 [92 S.Ct. 349, 355, 30 L.Ed.2d 296] (1971). Once it has been determined that a decision has "establish[ed] 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," the Court has gone on to examine the history, purpose, and effect of the new rule, as well as the inequity that would be imposed by its retroactive application. Id., at 106-107 [92 S.Ct. at 355-56]. See also Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 499 [88 S.Ct. 2224, 2234, 20 L.Ed.2d 1231] (1968).
United States v. Johnson, 457 U.S. 537, 550 n. 12, 102 S.Ct. 2579, 2587 n. 12, 73 L.Ed.2d 202 (1982). See also Goodman v. Lukens Steel Co., --- U.S. ----, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987); Saint Francis College v. Al-Khazraji, --- U.S. ----, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987); Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); McSurely v. Hutchison, 823 F.2d 1002 (6th Cir.1987).
The initial hurdle that must be overcome before a court ruling is given nonretroactive effect is a determination of whether the decision marks 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...
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