Washington v. Starke

• Decision Date: 26 August 1988
• Docket Number: No. 86-1717,86-1717
• Parties: Leon WASHINGTON, suing on his behalf and as personal representative of the Estate of Hardy James, Jr., Plaintiff-Appellant, v. Dean STARKE; Dale Easton; Benton Township; The City of Benton Harbor; and Sam Watson, Defendants-Appellees, Ronald Kienzle; et al., Defendants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 346

855 F.2d 346

Leon WASHINGTON, suing on his behalf and as personal representative of the Estate of Hardy James, Jr., Plaintiff-Appellant, v. Dean STARKE; Dale Easton; Benton Township; The City of

Benton Harbor; and Sam Watson, Defendants-Appellees,

Ronald Kienzle; et al., Defendants.

No. 86-1717.

United States Court of Appeals, Sixth Circuit.

Argued Sept. 29, 1987.

Decided Aug. 26, 1988.

Riccardo D. Arcaro (argued), Gould & Arcaro, P.C., Grand Rapids, Mich., for plaintiff-appellant.

Timothy Downs (argued), Craig, Farber, Downs & Dise, Detroit, Mich., Ronald G. Morgan, Morgan & Fuzak, P.C., East Lansing, Mich., for defendants-appellees.

Before KEITH, MILBURN and NORRIS, Circuit Judges.

MILBURN, Circuit Judge.

Plaintiff-appellant Leon Washington, suing on his behalf and as the personal representative of the Estate of Hardy James, Jr., appeals the district court's order granting summary judgment wherein the court found that the individual defendants were entitled to qualified immunity and dismissed the pendent state claims. For the reasons that follow, we affirm.

I.

During the early morning hours of June 20, 1982, Hardy James, Jr., and two accomplices were in the process of burglarizing Comet True Value Hardware in Benton Township, Berrien County, Michigan. Officers Keith Diamond and Ronald Kienzle of the Benton Township Police Department responded to a breaking and entering call and arrived at the hardware store shortly after 3:00 a.m. and, upon arrival, reported a broken window. Shortly thereafter, two police officers from the City of Benton Harbor, Michigan, Dean Starke and Dale Easton; two deputies of the Berrien County Sheriff's Department, Thomas Yops and Maurice Crandell; and Benton Township Police Officer Michael Krugh arrived to provide backup assistance.

Kienzle, Diamond and Yops entered the building while the other officers remained outside. Officer Kienzle alerted the others that he had discovered a large pile of guns near the broken window. Upon further investigation, Kienzle discovered Hardy James, Jr., hiding in an aisle. Before an arrest could be made, James fled toward the window entrance and the large pile of weapons. Kienzle identified himself as a police officer and ordered James to halt, but James did not respond and continued to run toward the broken window and pile of weapons. Kienzle then fired three rounds from his .357 revolver, all missing James. James then jumped out of the building through the broken window, encountered Deputy Crandell, and the two struggled briefly. However, James eventually broke loose and continued to flee on foot.

While Officers Krugh, Crandell and Starke pursued James, the other officers remained on the scene with James' accomplices. Officers Krugh and Crandell also shouted at James to stop, but to no avail. Officer Krugh then fired a round from his shotgun, apparently nicking James in the right hand. Krugh then heard Crandell warn James to stop or he would shoot. Continuing pursuit, Krugh again warned James to stop, and when he did not, Krugh fired two more rounds from his shotgun at James. The three officers continued to pursue James, and Officer Starke fired two rounds from his .38 revolver, the second of which struck Hardy James, Jr., in the back of the skull and killed him. The body was recovered 298 feet from the spot where Officer Starke fired.

This action was filed by plaintiff Leon Washington, suing on his behalf and as the personal representative of the Estate of Hardy James, Jr., pursuant to 42 U.S.C. Secs. 1981, 1983, 1985, and 1986, alleging that the various defendants violated decedent's rights under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, in addition to pendent state claims of negligence, gross negligence, and wrongful death.

There were originally three separate groups of defendants in this action: (1) the City of Benton Harbor, Michigan, its Public Safety Director, Sam Watson, and two police officers, Dean Starke and Dale Easton; (2) Benton Township, Michigan, its Chief of Police, Jack Drach, and three police officers, Ronald Kienzle, Keith Diamond, and Michael Krugh; and (3) Berrien County, Michigan, its Sheriff, Forrest Jewell, and two deputies, Thomas Yops and Maurice Crandell.

The district court entered judgment on the various defendants' motions for summary judgment. The district court held that the individual defendants were entitled to qualified immunity from liability on plaintiff's section 1983 claim. The district court also dismissed plaintiff's section 1986 claim as being untimely, and dismissed plaintiff's pendent state claims against defendant Sheriff Jewell for being untimely as well. Washington v. Starke, 626 F.Supp. 1149 (W.D.Mich.1986).

At a later hearing on January 30, 1986, the district court dismissed plaintiff's remaining pendent state claims without prejudice. After that dismissal, plaintiff filed those claims in the Berrien County, Michigan, Circuit Court. After a hearing on May 15, 1986, a settlement was reached of the remaining federal claims, and the district court entered an order on June 24, 1986, dismissing plaintiff's action with prejudice.

Plaintiff-appellant raises two issues in this appeal. First, he argues that the district court erred in dismissing the plaintiff's section 1983 action against the individual defendants on the basis of qualified immunity. Second, he argues that the district court erred in dismissing the plaintiff's pendent state claims.

II.

Generally, a section 1983 claim must be predicated on the deprivation of a federal constitutional right, as a right guaranteed only under state law is inadequate. Bird v. Summit County, Ohio, 730 F.2d 442 (6th Cir.1984) (per curiam). Alternatively, the constitutional right may arise out of the substantive laws and regulations of a state and be protected by the due process clause of the Fourteenth Amendment. See Beard v. Livesay, 798 F.2d 874 (6th Cir.1986); Franklin v. Aycock, 795 F.2d 1253 (6th Cir.1986). In the present case, as the district court noted, ¹ "[p]laintiff's Sec. 1983 claim is based upon the Supreme Court's March 27, 1985 ruling in Tennessee v. Garner, 471 U.S. , 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)." Washington, 626 F.Supp. at 1151.

We recently held in Carter v. City of Chattanooga, 850 F.2d 1119 (6th Cir.1988) (en banc), that Garner would only be applied prospectively. As the shooting at issue in this appeal occurred six months before the shooting at issue in Carter, the Court's holding in Garner cannot be used as a basis for plaintiff's section 1983 claim. Arguably, plaintiff is also claiming a denial of the decedent's substantive due process rights as protected by the Fourteenth Amendment as a basis for a section 1983 action, under the law as it existed at the time of the shooting. See Landrum v. Moats, 576 F.2d 1320, 1325 (8th Cir.), cert. denied, 439 U.S. 912, 99 S.Ct. 282, 58 L.Ed.2d 258 (1978) (fleeing felon rule found violative of substantive due process). Therefore, we will consider the merits of plaintiff's argument that the district court improperly held that the individual defendants were entitled to qualified immunity.

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), the Supreme Court rejected the inquiry into the state of mind of the person seeking immunity in favor of a wholly objective standard for determining whether or not qualified immunity exists. The Court found that public officials ² "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow, 457 U.S. at 818, 102 S.Ct. at 2738. As the Supreme Court later noted in Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984), "[w]hether an official may prevail in his qualified immunity defense depends upon the 'objective reasonableness of [his] conduct as measured by reference to clearly established law.' No other 'circumstances' are relevant to the issue of qualified immunity." Davis, 468 U.S. at 191, 104 S.Ct. at 3017 (citation omitted). Thus, the central issue in the present case is whether a reasonable police officer could have believed, in light of clearly established law, that the use of deadly force was lawful under the circumstances. See Anderson v. Creighton, --- U.S. ----, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987); Mitchell v. Forsyth, 472 U.S. 511, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985).

In the present case, it is undisputed that at the time of the shooting, controlling precedent in this circuit and in Michigan courts specifically upheld the common law fleeing felon rule, which permitted the use of deadly force to prevent the escape of a fleeing felon. It is also undisputed that Michigan had no statutory law on point at the time of the shooting. See Washington, 626 F.Supp. at 1153. Thus, the next question for consideration is whether or not a substantive right in the plaintiff's decedent was clearly established by administrative action.

It is further undisputed that there were no state administrative rules or regulations that would establish such a right at the time of the shooting. The only basis for asserting the existence of a constitutional right that would operate to preclude the application of qualified immunity can be found in the intra-departmental policies and regulations of the defendant police departments. Specifically, the Benton Harbor Police Department and the Berrien County Sheriff's Department had similar intra-departmental regulations in effect at the time of the shooting that indicated that the actions of the officers were improper. ³ The important aspects of the Benton Harbor intra-departmental guidelines are set out as follows:

A. FIREARMS MAY BE USED IN THE FOLLOWING SITUATIONS:

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4. Fleeing Offender --Only when it is a known felon who has used, or threatened to use, deadly force in...