Richardson v. Snow

• Decision Date: 05 April 1972
• Docket Number: Civ. No. 70-1093-M.
• Citation: 340 F. Supp. 1261
• Parties: Martha RICHARDSON, Individually and as Administratrix of the Estate of Rene Richardson, Deceased v. Elmer L. SNOW, Individually and in his capacity as a detective of the Prince George's County Police Department, et al.
• Court: U.S. District Court — District of Maryland

340 F. Supp. 1261

Martha RICHARDSON, Individually and as Administratrix of the Estate of Rene Richardson, Deceased v. Elmer L. SNOW, Individually and in his capacity as a detective of the Prince George's County Police Department, et al.

Civ. No. 70-1093-M.

United States District Court, D. Maryland.

April 5, 1972.

Harleigh P. Ewell, Robert H. Law and Law & Ewell, Bowie, Md., for plaintiff.

Robert B. Ostrom and DePaul & Willoner, College Park, Md., for defendant Elmer L. Snow.

Walter H. Maloney, Jr., Prince George's County Atty., Harry L. Durity, Deputy County Atty., Glenn B. Harten, Associate County Atty., and Martin A. Hertz, co-counsel, Upper Marlboro, Md., for defendants John Doe, Richard Roe, Peter Poe, and Vincent Free.

John D. Connelly, Clinton, Md., for defendant G. L. Beckman.

JAMES R. MILLER, Jr., District Judge.

Memorandum Opinion

Elmer L. Snow, a detective of the Prince George's County Police Department, and Vincent Free, formerly Chief of the Prince George's County Police Department, who are among the defendants in this proceeding, have each filed a motion for summary judgment in this proceeding brought by the plaintiff for adjudication of claims allegedly arising under 42 U.S.C. §§ 1983 and 1988. The plaintiff has filed a motion to compel disclosure of the identity of an informant who allegedly furnished certain information to the Prince George's County Police Department relating to the complicity of Rene Richardson in one or more armed robberies. This suit arises basically out of the fatal shooting of Rene Richardson by the defendant, Elmer L. Snow, then and now a police officer, when he subsequently sought to detain or arrest the decedent without a warrant on September 24, 1969.

I

As to the defendant Free, the complaint alleges that, as Chief of the Police Department of Prince George's County, he maintained within the Department a policy of rounding up persons to be held without probable cause in the hope that they would be identified as the perpetrators of unsolved crimes. Plaintiff also alleges that even if Free did not directly invoke such a policy, he knew or should have known that there was such a policy extant in his Department and that he was negligent in failing to terminate such policy. The plaintiff's argument concludes that Free's alleged policy infringed upon decedent's civil rights and resulted in his death.

Free's affidavit accompanying his motion for summary judgment states that, although he was Chief of Police of Prince George's County, Maryland at the times relevant, he has no knowledge of the incident which is the basis of this action, he was not personally involved in the incidents recited in the complaint, nor did he direct the same or ratify them in any way, and that he did not issue any instructions or orders to the members of the Police Department that suspects were to be "rounded up" and brought in for questioning against their will and without probable cause for an arrest. Although a number of depositions have been taken in this case and interrogatories have been presented and answered, plaintiff has established no facts directly contradicting any of the statements in Free's affidavit. Nevertheless, plaintiff contends that inferences can be drawn from the facts which would indicate that Free either invoked or sanctioned the policy of "rounding up" suspects without probable cause for arrest.

As a general rule, an official will not be liable in an action brought under the Civil Rights Act, 42 U.S.C. § 1983, unless he directly and personally participates in conduct under color of state law which deprives the plaintiff of rights, privileges, and immunities secured him by the federal Constitution. E. g. Sanberg v. Daley, 306 F.Supp. 277 (N.D.Ill.1969); Runnels v. Parker, 263 F.Supp. 271 (C.D.Cal.1967). It is not sufficient to hold a chief of police liable for the wrongful acts of his subordinates merely to show that the wrongdoer was acting under the general supervision of the chief. Barrows v. Faulkner, 327 F.Supp. 1190 (N.D.Okl. 1971); Fanburg v. City of Chattanooga, 330 F.Supp. 1047 (E.D.Tenn.1968); Sanberg v. Daley, supra; Patrum v. Martin, 292 F.Supp. 370 (W.D.Ky.1968); Runnels v. Parker, supra; see also Bennett v. Gravelle, 323 F.Supp. 203, 214 (D.Md. 1971), aff'd, 451 F.2d 1011 (4th Cir. 1971).

A frequently cited case in this area is Jordan v. Kelly, 223 F.Supp. 731 (W.D. Mo.1963), where, in entering summary judgment for the chief of police and members of the Board of Police Commissioners in an action under § 1983 for damages allegedly resulting from the arrest of the plaintiff by a police officer, the court said:

"The chief of police would not be responsible for the wrongful acts of the officer unless he was present or unless it is shown he directed such acts or personally cooperated in them, and there is no dispute but that he was not present, did not direct them and did not cooperate in the making of the arrest.

"The allegation that the arresting officer was acting under the general supervision, direction and control of the chief of police is not sufficient to render him liable ...." 223 F. Supp. at 739.

In the present case, even taking the inferences in the light most favorable to the plaintiff, there is nothing more than an allegation that the arresting officer was acting under the general supervision, direction and control of the defendant Free in his capacity of Chief of Police. There are absolutely no facts to contradict the affidavit of Free or to establish that he was present or personally directed or cooperated in the acts leading to the death of the decedent.

To the extent that the plaintiff's complaint seeks to establish liability on the part of defendant Free as a result of negligence on his part, the record does not support any finding of "gross or culpable negligence" on the part of the Chief of Police which might support § 1983 liability under the doctrine of Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970).

Defendant Free's motion for summary judgment must, therefore, be granted.

II

As to defendant Snow, the motion for summary judgment must be denied. Under a § 1983 action of this type, there is a defense of good faith and probable cause which is available to a police officer. Pierson v. Ray, 386 U.S. 547, 557, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). As more fully explained in the third section of this opinion, "probable cause" in this context does not mean probable cause in the objective constitutional sense, but means reasonable belief on the part of the police officer that he was acting in a legal manner.

The ultimate questions to be decided in the trial of Snow are: (1) Did defendant Snow have grounds, based on information known to him at the time, reasonably to believe in good faith that he had a right to arrest Rene Richardson? (2) Did defendant Snow, acting in good faith and with a reasonable belief in the validity of his action, attempt to arrest Rene Richardson? (3) If so, did defendant Snow in attempting to make the arrest use force in excess of that which in good faith he reasonably believed to be necessary to effect the arrest under the circumstances then and there existing? Pierson v. Ray, supra; Vaccaro v. Collier, 38 F.2d 862, 868 (D. Md.1930); Baltimore & Ohio Railroad Co. v. Strube, 111 Md. 119, 127, 73 A. 697 (1909); Restatement (Second) of Torts, §§ 121(b), and 132 (1965); 1 Harper and James, The Law of Torts, § 3.18 at 299 (1956).

Assuming for present purposes that defendant Snow in good faith had a reasonable belief that Rene Richardson had committed a felony and was, therefore, subject to arrest under the provisions of Art. 27, § 594B(c) Md.Anno.Code (1971 Repl.Vol.),¹ without a warrant, and assuming further that there was in this case an arrest or an attempt to arrest Rene Richardson by Snow,² there is at least a dispute of material fact on the question of whether excessive force was used by Snow to prevent the escape of Rene Richardson.³

Agnes Chase testified in her deposition that Rene Richardson was walking away from Snow's police car with a baby in his arms when the defendant Snow pulled out his gun and aimed at Richardson (Dep.Tr. 22, 25, 43), that no oral warning was given to Richardson by Snow to stop before Snow fired his pistol (Dep.Tr. 23, 25, 43), and that Snow fired at least the first shot before Snow had left the police car (Dep.Tr. 22). Irene Marie Riggs in her deposition testified that Rene Richardson started walking away from the police car when Snow told him that he had no warrant for Richardson's arrest (Dep.Tr. 17, 21), that Richardson did not start running until Snow got out of the car with his gun (Dep.Tr. 17, 22-24), that Snow gave no oral warning before he fired the gun (Dep.Tr. 22-24) that Snow fired the first shot from the car on the driver's side and the second shot from the rear of the car (Dep.Tr. 24), and that Richardson did not put the baby down until Snow had fired the first shot (Dep.Tr. 24).

The deposition of defendant Snow contains, on the other hand, his testimony that Richardson put the baby down immediately and started running when Snow told him to stay in the car (Dep.Tr. 18), that Snow yelled for Richardson to stop before any shots were fired (Dep. Tr. 19), that Snow started chasing Richardson before he fired any shots (Dep.Tr. 19), and that the first two shots were warning shots (Dep.Tr. 20).

There may be other disputes of material fact, but the aforegoing demonstrates amply that there are disputes of material fact which are important to the resolution of the liability related issue of whether or not defendant Snow used force in excess of that which he reasonably and in good faith believed was necessary under all the circumstances to prevent the escape of Rene Richardson. The versions of Agnes Chase and Irene Marie Riggs of the events, if believed by the jury, could establish that Snow gave no warning to Richardson to stop and took no substantial action to...