Ayler v. Hopper

• Decision Date: 29 April 1981
• Docket Number: Civ. A. No. 80-341-N.
• Citation: 532 F. Supp. 198
• Parties: Eugene AYLER, etc., Plaintiff, v. Joseph HOPPER, Deputy Commissioner of Corrections for the State of Alabama, sued in his individual capacity, Defendant.
• Court: U.S. District Court — Middle District of Alabama

532 F. Supp. 198

Eugene AYLER, etc., Plaintiff, v. Joseph HOPPER, Deputy Commissioner of Corrections for the State of Alabama, sued in his individual capacity, Defendant.

Civ. A. No. 80-341-N.

United States District Court, M. D. Alabama, N. D.

April 29, 1981.

Ira Burnim and John L. Carroll, Montgomery, Ala., and Paul Heffler, Birmingham, Ala., for plaintiff.

W. Scears Barnes, Alexander City, Ala., for defendant.

ORDER

MYRON H. THOMPSON, District Judge.

This cause is before the Court on the plaintiff's February 25, 1981, "first motion in limine." By said motion, the plaintiff requests a decision by the Court prior to trial or, alternatively, prior to closing argument at trial, on the plaintiff's request that the jury in this case be instructed that "because it is unconstitutional, Alabama's `fleeing felon' statute, Alabama Code § 13A-3-27 (Supp.1980), did not privilege defendant Hopper to use deadly force to effect Arthur Ayler's arrest on March 15, 1981." As grounds for the motion, the plaintiff argues that unless the Court's decision on the requested instruction is made known to the parties prior to trial or, at least, prior to closing argument, the plaintiff will find it extremely difficult if not impossible to prepare adequately his case for trial and to prepare and present adequately his argument to the jury at the close of his case. Upon consideration of the motion, the arguments and briefs of the parties in connection therewith, and for good cause, the Court is of the opinion that the motion for a pretrial decision on the plaintiff's requested instruction should be granted.

Accordingly, as to the plaintiff's above requested instruction, the decision of the Court is that the instruction must be refused. In this case, the plaintiff seeks recovery from the defendant on essentially two causes of action: (1) his federal cause of action under 42 U.S.C. § 1983 for deprivation of a constitutional right under color of state law, and (2) his pendent state cause of action under Ala.Code § 6-5-410 for wrongful death.

As to the first, section 1983 cause of action, it has long been established that in interpreting the scope of section 1983, courts are

not bound by the state law of torts or the defenses of privilege that law provides. In an unbroken line of Supreme Court cases which includes Ex parte Virginia, 100 U.S. 339, 346, 25 L.Ed. 676 (1879); United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031 1043, 85 L.Ed. 1368 (1941); Screws v. United States, 325 U.S. 91, 109-11, 65 S.Ct. 1031 1039, 89 L.Ed. 1495 (1945); Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774 (1951); Monroe v. Pape, 365 U.S. 167, 183-87, 81 S.Ct. 473 481-484, 5 L.Ed.2d 492 (1961); Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed. 288 (1967), and Scheuer v. Rhodes, 416 U.S. 232, 237-38, 94 S.Ct. 1683 1686, 40 L.Ed.2d 90 (1974), the conduct of police officers and other state officials has, both civilly (Monroe, Pierson, Scheuer) and criminally (Classic, Screws, Williams), been held subject to standards demanded by the Constitution of the United States, regardless of approbation by state law.

Jones v. Marshall, 528 F.2d 132, 137 (2d Cir. 1975) (footnote omitted). As the Fifth Circuit recently stated, the question for decision in a section 1983 action is "whether the defendant's conduct — independent of its lawfulness or unlawfulness at state law — was sufficiently egregious as to be `constitutionally' tortious." Williams v. Kelley, 624 F.2d 695, 697 (5th Cir. 1980). The existence of a state statute, regulation or policy purporting to authorize allegedly constitutionally tortious conduct is not relevant to the determination of whether such conduct is in fact constitutionally tortious. Such a state statute, etc., becomes relevant in a section 1983 action only insofar as, a constitutional deprivation having been established, the statute tends to support or undercut a defense of good faith immunity. See, e.g., Williams v. Board of Regents, 629 F.2d 993 (5th Cir. 1980). As is well established, a state official such as the defendant here does not enjoy good faith immunity from liability for damages under section 1983(1) "if he knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the person affected," Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975); see, e.g., Cruz v. Beto, 603 F.2d 1178, 1185 (5th Cir. 1979); or (2) "if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the person," Wood v. Strickland, supra, 420 U.S. at 322, 95 S.Ct. at 1001; see, e.g., Cruz v. Beto, supra, 603 F.2d at 1185-86. The first condition is commonly said to embody a test for `objective' good faith, and the second a test for `subjective' good faith. A state statute authorizing or prohibiting certain conduct might be relevant evidence on the question of whether the asserted unconstitutionality of the conduct was `clearly established,' a determination essential to a finding as to `objective' good faith. See generally Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978). Such a statute might also be relevant evidence on the question of a defendant's actual intent, a determination essential to a finding as to `subjective' good faith. In either case, the relevant consideration is not the constitutionality of the statute but rather whether a defendant believed and should reasonably have believed that the statute was valid. Thus, even if a state statute is unconstitutional, a defendant relying on the statute in `objective' and `subjective' good faith is entitled to immunity from liability for damages under section 1983. Because the plaintiff's requested instruction suggests otherwise, it must, with regard to the plaintiff's section 1983 claim, be refused.

Similarly, as to state causes of action for wrongful death, such as the one alleged by the plaintiff in this case, the principle appears to be well established that reliance on a state statute authorizing an allegedly wrongful act will constitute a defense to an action based on that act, even if the statute itself is unconstitutional, if the defendant charged with the act believed and had reason to believe that the statute authorizing it was valid. See Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). Again, because the plaintiff's requested instruction suggests otherwise, it must, with regard to the plaintiff's wrongful death cause of action, also be refused.

Presumably the plaintiff is familiar with the above and actually seeks by his first motion in limine an indication of what the Court understands to be the constitutional standards governing the plaintiff's section 1983 claim and the defendant's asserted good faith immunity defense. Because these standards have been the subject of extensive briefs by the parties, and because pretrial knowledge of the Court's understanding of these standards is likely to be crucial to the effective prosecution and defense of this case and in general to its orderly disposition, the Court finds it appropriate and desirable to inform the parties at this time of its understanding of these standards.

It is clear to the Court that the use of deadly force by a prison official to stop an escaping felon is constitutionally tortious unless the 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 great bodily harm. As the Chief Justice wrote in his dissent in Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971):

Freeing either a tiger or a mouse in a schoolroom is an illegal act, but no rational person would suggest that these two acts should be punished in the same

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