Cunningham v. Ellington
| Decision Date | 05 March 1971 |
| Docket Number | Civ. No. C-70-250. |
| Citation | 323 F. Supp. 1072 |
| Parties | Odell CUNNINGHAM, Clemmie Ivey, Betty Lue Ivey, a minor, by next friend, James Mason, all next of kin of James Ivey, deceased, individually and on behalf of all persons similarly situated, Plaintiffs, v. Buford ELLINGTON, Governor of the State of Tennessee, David Pack, Attorney General of Tennessee, Henry Loeb, Mayor of Memphis, Tennessee, Frank Holloman, Director of Police Department of Memphis, Tennessee, Henry Lux, Chief of Police of Memphis, Tennessee, individually and in their respective official capacities, and Patrolmen W. H. Arnold and K. S. Rooker of the Memphis Police Department, Defendants. |
| Court | U.S. District Court — Western District of Tennessee |
Walter L. Bailey, Jr., Ratner, Sugarmon & Lucas, Irvin M. Salky, Louis R. Lucas, Memphis, Tenn., Jack Greenberg, Drew Days, III, Michael Meltzner, New York City, for plaintiffs.
Thomas E. Fox, Deputy Atty. Gen. of Tenn., Nashville, Tenn., for defendants Ellington and Pack.
James M. Manire, City Atty., Frierson M. Graves, Jr., Asst. City Atty., Memphis, Tenn., for remaining defendants.
Before PHILLIPS, Circuit Judge, BAILEY BROWN, Chief Judge, and McRAE, District Judge.
Plaintiffs allege that they are the beneficiaries of the death action resulting from the death of James Ivey, who, plaintiffs allege, was shot and killed by defendants Arnold and Rooker, officers of the Memphis Police Department, while the officers were investigating a burglary attempt and while he was fleeing from an arrest by those officers. Plaintiffs bring this death action only under 42 U.S.C.A. § 1983; diversity jurisdiction is not alleged. They seek money damages from the officers, from defendant Lux, who was and is Chief of Police, defendant Holloman, who was but is not now Director of Police, and defendant Loeb, who was and is mayor of the city.
Plaintiffs, as an additional claim that they bring as a class action, seek a declaration that the Tennessee statute (T. C.A. § 40-808) that defines the means that may be used in effecting an arrest is unconstitutional on its face and as it was applied, and they seek an injunction against the "enforcement, operation or execution of the statute in the form of killing or severely wounding persons who simply flee in order to avoid arrest and when not done in the defense of one's own life, or the life and safety of others."
On application of plaintiffs, a three-judge court was convened pursuant to 28 U.S.C.A. §§ 2281, 2284 to hear and determine only the question of the facial constitutionality of the involved statute. The parties have submitted briefs and oral argument has been had, and the question was taken under advisement.
Before reaching the merits of the plaintiffs' constitutional contentions, we will address ourselves to the question of whether this case may be maintained as a class action under Rule 23 of the Federal Rules of Civil Procedure. In their complaint plaintiffs state that they bring their suit "on behalf of all other persons similarly situated, who are citizens of Memphis, Tennessee, who find their rights in jeopardy because of the enforcement, threatened enforcement, and the arbitrary, capricious and bad faith application of the above statute. * * *" Plaintiffs allege that "the class represented by plaintiffs consists of those citizens of Memphis, Tennessee who have been subjected to, are presently subjected to, and who will be subjected in the future to application of this unconstitutional statute. * * *"
We conclude that this action may not be maintained as a class action. In order to maintain an action as a class action under the original or revised rule there must be a class in which membership is "distinguishable or at least definable at the outset." This is particularly necessary under the revised rule because the court must under Rule 23(c) (1) determine as early as practicable whether it can be maintained as a class action and may be required to give notice to members of the class under Rule 23(c) (2) before trial begins. It may also be necessary for the court's judgment to determine who are members of the class under Rule 23(c) (3). 3B J. Moore, Federal Practice ¶ 23.04, at 23-253, 23-254 (2d ed. 1969). In addition Professor Moore notes that delineation of the class aids in determining whether it is to be maintained only as to particular issues, or divided into subclasses; in making orders during conduct of the action; and in dismissing or compromising the action. Id. ¶ 23.04 at 23-254. In the instant case membership in the alleged class is neither distinguishable nor definable. Plaintiffs include in their class citizens who will be subjected in the future to the application of T.C.A. § 40-808. It would be impossible now to determine which people in Memphis in the future will allegedly commit felonies and flee from the scene after policemen announce their intent to arrest.
The involved statute, T.C.A. § 40-808, originally enacted in 1858, provides in its entirety as follows:
It is agreed by all parties that, as construed by the Tennessee courts, this statute means, in the present context, that an officer may use force that may result in death in preventing the escape of a person that he is attempting to arrest if (1) he reasonably believes that the person has committed a felony and (2) he notifies the person that he intends to arrest him and (3) he reasonably believes that no means less than such force will prevent the escape. The parties also agree that, so construed, the statute merely states the common law. Reneau v. State, 70 Tenn. 720 (1879); Love v. Bass, 145 Tenn. 522, 238 S.W. 94 (1921); Scarbrough v. State, 168 Tenn. 106, 76 S.W.2d 106 (1934); Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938).
Plaintiffs contend that the involved statute is unconstitutional on its face because it permits the administration of cruel and unusual punishment in violation of the Eighth Amendment. More particularly, they contend that in so authorizing the use of force that may kill a person, the statute authorizes cruel and inhuman punishment and that such force can be constitutionally authorized only when necessary to protect "one's own life or safety, or the life and safety of others." Plaintiffs have cited no case, and we have found none, in which such has been held, and it does appear that this contention is one of first impression. The Eighth Amendment was adopted, as it says, to prevent inhuman or tortuous punishment (Hemans v. United States, 163 F.2d 228 (6th Cir. 1947)), and the short answer to plaintiffs' contention is that we simply are not dealing with punishment. An officer, of course, in effecting an arrest, cannot use any force for the purpose of punishing a person and to do so is a crime under 18 U.S.C.A. § 242. Clark v. United States, 193 F.2d 294 (5th Cir. 1951). It may well be, as plaintiffs argue, that as a matter of value judgment it would be better to allow persons thought to be felons to escape than to incur the risk of killing them. Indeed, as far back as Reneau v. State, 70 Tenn. 720 (1879), the Tennessee Supreme Court suggested that, in view of the increase of crimes defined as felonies, the rule of law allowing officers to shoot at escaping persons thought to be felons should be re-examined. This, however, is a policy question for the Tennessee legislature or perhaps the Tennessee courts and not for the federal courts in the guise of constitutional adjudication.
To continue reading
Request your trial
-
Davis v. Balson
...Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972), cert. denied, 409 U.S. 1114, 93 S.Ct. 927, 34 L.Ed.2d 696 (1973); Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.Tenn.1971) (three-judge court). Cf. Mattis v. Schnarr, 547 F.2d 1007 (8th Cir. 1976), rev'g, 404 F.Supp. 643 (E.D. Mo.1975), vaca......
-
Carter v. City of Chattanooga, Tenn.
...that decision, a three-judge district court had upheld the facial constitutionality of the statute in question in Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.Tenn.1971), and this court had declared the statute constitutional in Beech v. Melancon, 465 F.2d 425 (6th Cir.1972), cert. denied......
-
Carter v. City of Chattanooga, Tenn.
...constitutionality. The first case to examine the Tennessee statute in light of a constitutional challenge was Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.Tenn.1971), decided by a three-judge panel consisting of Circuit Judge Harry Phillips, then Chief District Court Judge Bailey Brown, a......
-
Mattis v. Schnarr
...present policy questions for the legislature, not the judiciary. Jones v. Marshall, 528 F.2d 132 (2d Cir. 1975); Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.Tenn.1971) (three-judge court); Hilton v. State, 348 A.2d 242 (Me.1975); Shumann v. McGinn, 240 N.W.2d 525 As indicated, I find no ......