Davis v. Little

• Decision Date: 12 July 1988
• Docket Number: No. 1027,D,1027
• Citation: 851 F.2d 605
• Parties: Robert B. DAVIS, Appellee, v. David LITTLE, individually and in his capacity as an officer in the Police Department of Waterbury, Connecticut, Appellant. ocket 87-9058.
• Court: U.S. Court of Appeals — Second Circuit

Page 605

851 F.2d 605

Robert B. DAVIS, Appellee, v. David LITTLE, individually and in his capacity as an officer in the Police Department of Waterbury Connecticut, Appellant.

No. 1027, Docket 87-9058.

United States Court of Appeals, Second Circuit.

Argued April 8, 1988.

Decided July 12, 1988.

Lawrence R. Pellett, Waterbury, Conn., for appellant.

Sue L. Wise, Williams & Wise, New Haven, Conn., for appellee.

Before LUMBARD, OAKES and MINER, Circuit Judges.

OAKES, Circuit Judge:

This appeal questions the validity of a judgment of $347,046.95 awarded by United States Magistrate Thomas P. Smith of the District of Connecticut, after a bench trial, in a section 1983 action brought by Robert B. Davis. The decision is reported as Davis v. Little, 670 F.Supp. 1115 (D.Conn.1987). Davis was hit by four of eight shots fired by David Little, a Waterbury, Connecticut, police officer, after Davis had escaped from police custody. One of the bullets shattered his elbow, ending his professional boxing career.

Although appellant raises numerous claims, only three merit discussion: (1) that there was no Fourth Amendment violation, (2) that the trial court was in error in applying Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), to an incident which occurred in 1981, and (3) that the magistrate erred in computing damages. As all the arguments are without merit, we affirm.

FACTS

Magistrate Smith made detailed findings of fact, see 670 F.Supp. at 1115-19, which we will summarize here.

While driving to work on the morning of April 17, 1981, appellee Robert B. Davis was stopped by Waterbury police officer Robert Cleveland after he allegedly ran a stop sign. Officer Cleveland, after noticing a slight discrepancy between Davis's driver's license and the vehicle registration, ran a check on Davis and the automobile through the National Crime Information Center ("NCIC"). After the check proved negative, Cleveland allowed Davis to proceed. However, the police dispatcher then transmitted a "hit" on the NCIC check, stating that Davis was an "escapee." Officer Cleveland pursued and stopped Davis's car, asked Davis to produce his license and registration again, and did a pat-down search for weapons. Cleveland then had Davis sit in the back of the police car.

Although the trial testimony varies widely at this point, it is clear that Davis got out of the car, either assaulting or merely eluding Officer Cleveland and Lieutenant Magistrate Smith found that at the time of the shooting Officer Little knew that Davis was an escaped felon who was in flight from Officer Cleveland's custody, that Davis was unarmed, and that Davis had made no threat to use deadly force on them or on any third party. Id. While absolving Officer Scozzafava, he held that Little had "used deadly force for the sole purpose of thwarting [Davis's] escape," id. at 1118, in violation of the standards set out in Tennessee v. Garner and Dodd v. City of Norwich, 827 F.2d 1, 7 (2d Cir.1987), cert. denied, --- U.S. ---, 108 S.Ct. 701, 98 L.Ed.2d 653 (1988). Under the circumstances, Officer Little had no reasonable basis to believe that Davis was armed or that he posed a danger to the officers or third parties. Instead, in the magistrate's words, "armed with service revolver and sheer conjecture," Little "shot first and looked for answers later." 670 F.Supp. at 1120. The court awarded Davis a judgment of $347,046.95 for lost wages, medical expenses, pain and suffering, and for incapacitation and permanent partial disability.

                Andrews (who had arrived as backup), and ran away.  Meanwhile, Officers David Little and Louis Scozzafava, who did not know of the supposed assault on Officers Cleveland and Andrews, had been dispatched to support Officer Cleveland, and en route they heard several radio transmissions, giving a physical description of Davis, referring to him as an escaped felon and, in the last message, saying that the suspect "had 'escaped' and was running."   Id. at 1117.  Little and Scozzafava quickly spotted Davis running toward them, stopped their car, and took positions near the front of their car, service revolvers drawn.  They claim that they ordered Davis to stop, but that instead he punched Little, shoved Scozzafava, and ran around them toward the back of the car.  Davis testified that the officers ran at him with drawn guns, gave no warnings, and that he up-ended them not with violence but with some " 'fancy footwork' which 'faked them off their feet,' " id.--perhaps an "Ali" shuffle.  While Magistrate Smith found the testimony of Davis more credible, he noted that the discrepancies were largely unimportant, because Little and Scozzafava admitted that they had seen that Davis was unarmed.  There was, however, no dispute that although Officer Scozzafava fired a warning shot into the air, Officer Little aimed at Davis and emptied his revolver, hitting Davis with four of the eight bullets.  Two of the bullets struck Davis in the buttocks, another grazed his shoulder, and the fourth shattered his left elbow, leaving him with a permanent partial disability
                

DISCUSSION

Little's first argument is that his use of deadly force to apprehend Davis did not violate the Fourth Amendment, because the facts known or attributable to him, and the reasonable inferences he could have drawn from those facts, justified his actions. This argument would require us to find that the magistrate's findings of fact were defective, because the court measured the reasonableness of Little's actions by reference to the facts as Little knew them, without considering facts known to other members of the police department. Appellant is in essence asking us to commingle the standards for probable cause, see, e.g., Wood v. Crouse, 436 F.2d 1077 (10th Cir.) (per curiam), cert. denied, 402 U.S. 1010, 91 S.Ct. 2193, 29 L.Ed.2d 432 (1971), with those of reasonableness in using deadly force to arrest. But the two inquiries, while both necessary to a determination of whether an arrest violates the Fourth Amendment, are distinct. The collective knowledge of the police may bear directly on the legality of a decision to arrest a suspect, but reasonableness is to be determined in reference to the specific circumstances, acts, and individuals involved in effecting the arrest. Cf. United States v. Valez, 796 F.2d 24, 26 (2d Cir.1986) (difference between probable cause to arrest a suspect and reasonable belief that individual was the suspect in question), cert. denied, --- U.S. ----, 107 S.Ct. 957, 93 L.Ed.2d 1005 (1987). In this situation, probable cause goes to the underlying validity of the arrest; reasonableness goes to the way in which the arrest was carried out.

The Supreme Court expressly distinguished between probable cause and reasonableness in Tennessee v. Garner, 471 U.S. at 7, 105 S.Ct. at 1699. There the State had submitted that once the police have proved the existence of probable cause, any Fourth Amendment analysis is complete. The Court disagreed, stating:

This submission ignores the many cases in which this Court, by balancing the extent of the intrusion against the need for it, has examined the reasonableness of the manner in which a search or seizure is conducted. To determine the constitutionality of a seizure "[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion." ... Because one of the factors is the extent of the intrusion, it is plain that reasonableness depends on not only when a seizure is made, but also how it is carried out.

Id. at 7-8, 105 S.Ct. at 1699 (quoting United States v. Place, 462 U.S. 696, 703, 103 S.Ct. 2637, 2642, 77 L.Ed.2d 110 (1983)). Continuing its analysis, the Court went on to say that "[t]he same balancing process applied in the cases cited above demonstrates that, notwithstanding probable cause to seize a suspect, an officer may not always do so by killing him. The intrusiveness of a seizure by means of deadly force is unmatched." 471 U.S. at 9, 105 S.Ct. at 1700. Thus, the magistrate was perfectly correct in looking at the circumstances as a person in Officer Little's shoes saw them, as opposed to considering all the information that all the other officers possessed, in determining whether Officer Little's conduct was reasonable.

Applying this proper perspective, it is clear that Little's use of deadly force violated the Fourth Amendment. Magistrate Smith properly assessed Little's state of mind and knowledge, his reactions, and the surrounding circumstances. Little knew that Davis was a felon who had fled the custody of police, but he had no reason to believe that Davis posed a significant threat to his safety or to the safety of third parties. This, coupled with the failure to provide Davis with an adequate warning, did not justify the use of deadly force. Garner, 471 U.S. at 11, 105 S.Ct. at 1701; Dodd v. City of Norwich, 827 F.2d at 7; see generally Comment, The Unconstitutional Use of Deadly Force Against Nonviolent Fleeing Felons: Garner v. Memphis Police Department, 18 Ga.L.Rev. 137, 154-57 (1983).

Appellant next contends that the magistrate erred in applying the rule of Garner to police activity which occurred several years before that decision was handed down, particularly in light of a Connecticut statute in force at the time of the shooting, Conn.Gen.Stat. Sec. 53a-22 (1985), ¹ and Second Circuit case law, most notably Jones v. Marshall, 528 F.2d 132 (2d Cir.1975), which might be read as justifying the shooting. Much of this argument strikes us as an attempt to argue a qualified good faith immunity defense in the guise of retroactivity analysis. Because the defendant did not present the trial court with any evidence that Officer Little acted in reliance upon the Connecticut statute or argue the point either to the trial court or to this court, we will not consider whether a such...