Mattis v. Schnarr

• Decision Date: 07 October 1975
• Docket Number: No. 72C 1 (4).,72C 1 (4).
• Citation: 404 F. Supp. 643
• Parties: Robert Dean MATTIS, M.D., Plaintiff, v. Richard R. SCHNARR, and Robert Marek, Defendants, v. John C. DANFORTH, Attorney General, State of Missouri, Intervenor Defendant.
• Court: U.S. District Court — Eastern District of Missouri

404 F. Supp. 643

Robert Dean MATTIS, M.D., Plaintiff, v. Richard R. SCHNARR, and Robert Marek, Defendants, v. John C. DANFORTH, Attorney General, State of Missouri, Intervenor Defendant.

No. 72C 1 (4).

United States District Court, E. D. Missouri, E. D.

October 7, 1975.

Richard D. Baron, Eugene H. Buder, Benjamin Roth, American Civil Liberties Union of Eastern Missouri, St. Louis, Mo., for plaintiff; Joel M. Gora, American Civil Liberties Union, New York City, of counsel.

J. Leonard Walther, Brackman, Copeland, Oetting, Copeland, Walther & Schmidt, Clayton, Mo., for defendants Wm. Kisling & Richard E. Schnarr.

Shulamith Simon, Husch, Eppenberger, Donohue, Elson & Cornfeld, St. Louis, Mo., for defendant Robert Marek.

Moser, Marsalek, Carpenter, Cleary, Jaeckel, Keaney & Brown and F. Douglas, O'Leary, St. Louis, Mo., for defendant.

OPINION

NANGLE, District Judge.

This case is before the Court following a decision by the United States Court of Appeals for the Eighth Circuit, remanding the case for a determination of the constitutionality of the Missouri states involved. Mattis v. Schnarr, et al., 502 F.2d 588 (8th Cir. 1974).¹

Plaintiff was the father of Michael G. Mattis who has been killed. This suit was originally brought by plaintiff and his wife, Christine H. Mattis, Michael's mother; Mrs. Mattis, however, has died since the institution of this suit. The defendants, Patrolman Richard R. Schnarr and Sergeant Robert Marek, were the arresting officers involved in the death of the plaintiff's son. The Attorney General for the State of Missouri has intervened in this suit following the remand by the Court of Appeals.

The case was submitted on stipulated facts. On November 30, 1971, plaintiff's son, Michael Mattis, age 18, and a Thomas Rolf, age 17, had entered the office of a golf driving range at night by means of an unlocked window for the purpose of taking money. As the two were leaving, they were intercepted by defendant policemen who attempted to effectuate an arrest. Rolf was taken into custody, but Mattis broke away from defendant Marek's grasp. As Mattis fled, Marek shouted, "Stop, or I'll shoot". When Mattis continued his flight, Marek fired one shot, believing he shot in the air above Mattis. The bullet, however, struck Mattis in the head, causing his death. It was stipulated that the defendant police officers would testify

that their use of their guns in the manner described was reasonably necessary under the circumstances and was authorized by the statutes of the State of Missouri and that such statutes were valid and lawful.

Mattis v. Kissling, et al., Civil No. 72-Civ. (3) (E.D.Mo., filed January 16, 1973).

Plaintiff seeks a declaratory judgment that the statutes authorizing the defendant police officers' conduct (Sections 559.040 and 544.190, Revised Statutes of Missouri 1969) are unconstitutional. Plaintiff also asked for damages for the wrongful death of his son but has since abandoned this claim.

Plaintiff contends that the statutes in question 1) violate the Fourteenth Amendment by depriving him of his right to raise a family and by authorizing the termination of his parental rights, without due process of law, 2) violate the equal protection clause of the Fourteenth Amendment because of the distinction made between felons and misdemeanants, and 3) inflict cruel and unusual punishment on plaintiff and his decedent son contrary to the Eighth Amendment.

The two statutes being challenged provide:

1) § 559.040, R.S.Mo.1969:

Homicide shall be deemed justifiable when committed by any person in either of the following cases:

. . . . . .

(3) When necessarily committed in attempting by lawful ways and means to apprehend any person for any felony committed, or in lawfully suppressing any riot or insurrection, or in lawfully keeping or preserving the peace.

2) § 544.190, R.S.Mo.1969:

If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all necessary means to effect the arrest.

This latter statute requires that (1) the arresting officer give a defendant notice of his intention to arrest, (2) that the defendant either flee or forcibly resist, and (3) that whatever force the officer uses must be necessary. There is an additional requirement, that the arrest be lawful, which is implicit in the statutes.

Statutes such as the ones under attack here exist in a majority of states, and although criticism has been levelled at the scope of such statutes, most writers on the subject propose amendments and not complete abolition.²

Society requires protection against criminals. Criminal laws are enacted in order to give legal form and efficacy to such protection. Enforcement of these laws requires, ultimately, the prosecution of those who violate them. Since arrest of the violator is a condition precedent to this entire enforcement procedure, whatever facilitates arrest benefits society unless there are concomitant consequences which are socially harmful.

Obviously, the right to use deadly force facilitates arrest. Its legalization notifies the criminal that flight invites the risk of injury or death. On the other hand, if injury or death does occur, social injury results. Therefore, the right to use deadly force should be limited.³

At the outset it should be noted that it is not the role of this Court to determine whether social policy dictates that the scope of the statutes be narrowed. This Court's duty is to determine whether the challenged statutes are in conflict with the Constitution of the United States. In this determination, plaintiff's three contentions will be considered separately and in order.

I. THE DUE PROCESS ARGUMENT

Plaintiff asserts that the statutes violate his right to raise a family and his right to retain his parental rights until terminated by due process of law.

In Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965), in a concurring opinion, it is stated that:

The entire fabric of the Constitution and the purposes that clearly underlie its specific guarantees demonstrate that the rights to marital privacy and to marry and raise a family are of similar order and magnitude as the fundamental rights specifically protected. Id. at 495, 85 S.Ct. at 1688.

The right to raise a family had been previously recognized in Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L. Ed. 1042 (1923) wherein the state had attempted to forbid the teaching of any foreign language in public school until the child had reached the eighth grade; and in Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1924) where the state had attempted to abolish private schools.

Other cases have held that parental rights may not be terminated without notice and a hearing. Armstrong v. Manzo, 380 U.S. 545, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965) (statute allowing adoption without parental consent, or notice to the parent of the proceedings, upon a showing of insubstantial support by that parent during the preceding two years, held violative of due process); White v. Minter, 330 F.Supp. 1194 (D. Mass.1971) (Welfare Department determination that mother had abandoned her child, without notice and a hearing on that issue, held violative of due process). The Court notes, however, that these cases concern the rights of parents under circumstances in which the termination of the parental relationship is sought because of actions or conduct on the part of the parent; these cases do not concern themselves with termination because of conduct of the child.

The Court further notes that the statutes in question herein do not automatically require the deprivation of plaintiff's parental rights. The statutes did not command that plaintiff's son be killed. The statutes, instead, view such killing as a permissible outside limit on the actions of the arresting officers, provided that certain conditions precedent have been met. The deprivation of plaintiff's parental rights resulted from the actions of plaintiff's son, the consequences of those actions bringing the statutes into play.

In Rosario v. Rockefeller, 410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973), a case involving a claim of disenfranchisement, the court recognized a distinction between those situations in which a statute itself deprives a petitioner from asserting a constitutional right and situations in which a petitioner's own actions caused the resultant deprivation.

Moreover, not every action which can be viewed as an infringement on the right of a parent to raise a child will be held to amount to an invasion of those rights. In Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971), a child was suspended from school because of his hair length. The court refused to recognize any invasion of the parental right to raise a family where the record showed that the parents had merely supported the child's right to determine his own personal appearance and were not responsible for the choice themselves. The court held that the record failed to establish a direct invasion of parental rights and that such an invasion would be necessary. Here, too, plaintiff does not claim that his son's flight was the result of an action taken by plaintiff as the parent. Instead, it was the son's decision alone. If a direct relationship is required before an invasion of parental rights by a school policy will be found, then certainly such a relationship needs to be established where the parent seeks to establish an invasion by a statute.

Constitutional rights are not absolute; where conflict arises between assertions of rights, there must be a balancing of the public interest and the individual's rights. In California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971), a claim of self-incrimination was held insufficient to override the state's need for disclosures of names and addresses at the scene of car accidents. In Breard v. Alexandria, 341 U. S. 622, 71 S.Ct. 920, 95 L.Ed....