857 F.2d 713 (10th Cir. 1988), 86-2837, Mitchell v. City of Sapulpa

Docket Nº:86-2837.
Citation:857 F.2d 713
Party Name:Brian MITCHELL, Plaintiff-Appellant, v. CITY OF SAPULPA, a municipal corporation; Jack McKenzie, Chief of Police for the City of Sapulpa; Gary Young, Corporal, a police officer for the City of Sapulpa, Defendants-Appellees.
Case Date:September 20, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 713

857 F.2d 713 (10th Cir. 1988)

Brian MITCHELL, Plaintiff-Appellant,


CITY OF SAPULPA, a municipal corporation; Jack McKenzie,

Chief of Police for the City of Sapulpa; Gary

Young, Corporal, a police officer for

the City of Sapulpa,


No. 86-2837.

United States Court of Appeals, Tenth Circuit

September 20, 1988

Page 714

Thomas E. Salisbury, Tulsa, Okl., for plaintiff-appellant.

Charles Doyle Watson, Jr., Drumright, Okl., for Gary Young, defendant-appellee (John Howard Lieber, Tulsa, Okl., for Jack McKenzie, defendant-appellee, with him on the brief).

C.M. Gibson, Sapulpa, Okl., for City of Sapulpa, defendant-appellee (John Howard Lieber, Tulsa, Okl., for Jack McKenzie, defendant-appellee, with him on the brief).

Before MOORE and BALDOCK, Circuit Judges, and BURCIAGA, District Judge. [*]


Plaintiff appeals from the district court's granting of summary judgment in favor of defendants. Plaintiff brought suit pursuant to 42 U.S.C. Sec. 1983, alleging that defendant Gary Young used deadly force to apprehend plaintiff, who was unarmed, while plaintiff was fleeing the scene of a burglary. For purposes of this lawsuit, plaintiff conceded that he was a fleeing felon. Plaintiff further alleged that the use of deadly force was pursuant to a policy adopted by defendants Jack McKenzie and the City of Sapulpa, Oklahoma. Defendants conceded plaintiff's allegations, at least for purposes of their motion for summary judgment. Defendants responded that their actions were justified by the state policy on the apprehension of fleeing felons contained in Okla.Stat. tit. 22, Sec. 193: "If, after notice of intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest." The parties agreed that this statute is a codification of the common law rule permitting deadly force against fleeing felons.

In Tennessee v. Garner, 471 U.S. 1, 3, 105 S.Ct. 1694, 1697, 85 L.Ed.2d 1 (1985), the Supreme Court held that under the Fourth Amendment, deadly force may not be used "to prevent the escape of an apparently unarmed suspected felon ... unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officers or others." In granting summary judgment, the district court held that this rule, announced after the date of plaintiff's injury, should not be applied retroactively.

This court applied Garner's analysis to facts similar to those at bar in Ryder v. City of Topeka, 814 F.2d 1412 (10th Cir.1987). In Ryder, plaintiff appealed an adverse jury verdict finding that her constitutional rights were not violated when a police detective shot her while she was fleeing from the commission of a felony. These events took place in 1979, prior to the date of the Garner decision. The parties, however, did not raise the retroactivity issue before this court. Moreover, since the court concluded that defendants' actions did not violate the rule in Garner, the court was not required to reach the retroactivity issue. Accordingly, we do not consider Ryder to be binding authority on the issue of whether Garner should be applied retroactively.

The Supreme Court applies a three-pronged test for determining whether a case should be applied retroactively: (1) "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;" (2) the court " '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

Page 715

operation;' " and (3) the court must "weigh[ ] the inequity imposed by retroactive application." Chevron Oil v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971) (citations omitted).

At this time, only three circuits have directly addressed the retroactivity issue. In Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985), the Eleventh Circuit concluded that Garner should be applied retroactively. The Second Circuit agreed with this view in Davis v. Little, 851 F.2d 605 (2d Cir.1988). In Carter v. City of Chattanooga, 803 F.2d 217 (6th Cir.1986), the Sixth Circuit initially reached the same conclusion. In a recent en banc decision, however, the Sixth Circuit vacated its prior decision and concluded that Garner should be applied nonretroactively. Carter v. City of Chattanooga, 850 F.2d 1119 (6th Cir.1988). Without directly addressing the retroactivity issue, at least one other circuit has applied Garner to a similar cause of action arising prior to the Supreme Court's decision. See Griffin v. Hilke, 804 F.2d 1052 (8th Cir.1986) (Garner applied to police shooting pursuant to department policy), cert. denied, --- U.S. ----, 107 S.Ct. 3184, 96 L.Ed.2d 673 (1987). Other courts have relied on Garner for a framework for Fourth Amendment analysis, without retroactively applying the explicit holding that the use of deadly force against a nondangerous fleeing felon is unreasonable. Lester v. City of Chicago, 830 F.2d 706, 711 (7th Cir.1987) (Garner, among other cases, cited for conclusion that Fourth Amendment applies to claim for arrest without probable cause and with excessive force); Martin v. Malhoyt, 830 F.2d 237, 261 (D.C.Cir.1987) ("Garner's reasonableness formulation is the one typically used in court review of Fourth Amendment seizures"); Smith v. City of Fontana, 818 F.2d 1411, 1416 (9th Cir.) (Garner applied to use of excessive force during detention), cert. denied, --- U.S. ----, 108 S.Ct. 311, 98 L.Ed.2d 269 (1987); Spell v. McDaniel, 824 F.2d 1380, 1384 n. 3 (4th Cir.1987) (Garner applied to plaintiff's excessive force claim where "defendants [did] not contest this as a viable basis of claim"), cert. denied, --- U.S. ----, 108 S.Ct. 752, 98 L.Ed.2d 765 (1988); Fernandez v. Leonard, 784 F.2d 1209, 1217 n. 3 (1st Cir.1986) (concluding that while rule that shooting by police was a seizure subject to Fourth Amendment protections was "clearly established" as early as December, 1976, rule that use of deadly force against a nondangerous fleeing felon was unreasonable under the Fourth Amendment settled a "novel question of law" which would not apply retroactively); Bissonette v. Haig, 776 F.2d 1384, 1386-87 (8th Cir.1985) (Garner supports view that otherwise permissible search or seizure may be rendered unreasonable if interests against seizure outweigh interests in favor), aff'd by lack of quorum, --- U.S. ----, 108 S.Ct. 1253, 99 L.Ed.2d 288 (1988); Jamieson v. Shaw, 772 F.2d 1205 (5th Cir.1985) (applying Garner to traffic stop made without probable cause, resulting in injury to passenger); Kibbe v. City of Springfield, 777 F.2d 801, 808 (1st Cir.1985) (Garner applied to uphold one of several possible jury inferences, including that police department permitted deadly force), cert. dismissed, 480 U.S. 257, 107 S.Ct. 1114, 94 L.Ed.2d 293 (1987); Kidd v. O'Neil, 774 F.2d 1252, 1255 (4th Cir.1985) (in context of excessive force theory of recovery, Garner made "explicit what has long been at least implicit in earlier decisions of the Supreme Court" and "confirmed long-standing authority to the same effect" in the Fourth Circuit), overruled on other grounds, Justice v. Dennis, 834 F.2d 380 (4th Cir.1987); cf. Dugan v. Brooks, 818 F.2d 513, 516 (6th Cir.1987) (citing Garner for balancing methodology in Fourth Amendment analysis); United States v. Bigham, 812 F.2d 943, 948 (5th Cir.1987) (cited as supporting proposition that "culpable intent" required for a Sec. 1983 action will "vary according to the particular constitutional right infringed"); Young v. City of Killeen...

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