Washington v. Starke

• Decision Date: 24 January 1986
• Docket Number: No. K 85-252.,K 85-252.
• Citation: 626 F. Supp. 1149
• Parties: Leon WASHINGTON, suing on his behalf and as Personal Representative of the Estate of Hardy James, Jr., Plaintiff, v. Dean STARKE; Ronald Kienzle; Michael Krugh; Keith Diamond; Thomas Yops; Maurice Crandell; Dale Easton; Benton Township; the City of Benton Harbor; Berrien County; Jack Drach; Forrest (Nick) Jewell; and Sam Watson, Defendants.
• Court: U.S. District Court — Western District of Michigan

626 F. Supp. 1149

Leon WASHINGTON, suing on his behalf and as Personal Representative of the Estate of Hardy James, Jr., Plaintiff, v. Dean STARKE; Ronald Kienzle; Michael Krugh; Keith Diamond; Thomas Yops; Maurice Crandell; Dale Easton; Benton Township; the City of Benton Harbor; Berrien County; Jack Drach; Forrest (Nick) Jewell; and Sam Watson, Defendants.

No. K 85-252.

United States District Court, W.D. Michigan, S.D.

January 24, 1986.

James Gould, Grand Rapids, Mich., for plaintiff.

Stephen Small, Benton Harbor, Mich., for Benton Tp., Drach, Kienzle, Diamond & Krugh.

Timothy Downs, Detroit, Mich., for Benton Harbor Police Dept., Starke, Easton, Watson and City of Benton Harbor.

Stanley Stek, Grand Rapids, Mich., for Yops, Crandell, Berrien County & Jewell.

OPINION

ENSLEN, District Judge.

This opinion is intended to supplant the Court's oral opinion delivered at the hearing held on November 27, 1985. The instant case was brought by plaintiff, Leon Washington, suing on his own behalf and as the personal representative of the estate of his late brother, Hardy James, Jr. There are three separate groups of defendants in this action: (1) the City of Benton Harbor, the city's Public Safety Director, Sam Watson, and two police officers, Dean Starke and Dale Easton; (2) Benton Township, its Chief of Police, Jack Drach, and three police officers, Ronald Kienzle, Keith Diamond and Michael Krugh; and (3) Berrien County, its Sheriff, Forrest Jewell, and two deputies, Thomas Yops and Maurice Crandell. The case arises out of the June 20, 1982 shooting death of Mr. James, plaintiff's decedent, and alleges violations of 42 U.S.C. §§ 1981, 1983, 1985(3) & 1986 and the fourth, fifth, sixth, eighth and fourteenth amendments to the United States Constitution, in addition to the pendent state claims of negligence, gross negligence and wrongful death.

The Court is currently considering three dispositive motions brought by various defendants. Defendants Starke, Easton and Watson have moved for summary judgment on plaintiff's claims against them in their individual capacities under § 1983 on the basis of qualified immunity. Defendants Yops, Crandell, Jewell and Berrien County have also moved to dismiss and/or for summary judgment on the following grounds: (1) that Yops, Crandell and Jewell, in their individual capacities, are qualifiedly immune from plaintiff's § 1983 claims; (2) that plaintiff has failed to state a claim under §§ 1981 and 1985 upon which relief can be granted; (3) that plaintiff's claim under § 1986 is barred by that section's one year statute of limitations; and (4) that Yops, Crandell, Jewell and Berrien County are all either immune or qualifiedly immune from plaintiff's pendent state claims. Defendant City of Benton Harbor has filed a motion to dismiss and/or for summary judgment claiming that the federal allegations against it fail to state a claim upon which relief can be granted and pleading governmental immunity from the pendent state claims. I note that defendants Benton Township, Drach, Kienzle, Diamond and Krugh have not filed any motions to dismiss or for summary judgment on their own behalf in this case, but they have joined the motions filed by the other defendants.

The facts giving rise to this action are, briefly, as follows. In the early morning hours of June 20, 1982, Mr. James and two accomplices broke and entered the Comet True Value Hardware Store in Benton Township. Officers Diamond and Kienzle responded to a B&E call and arrived at the scene shortly after 3:00 a.m., reporting a broken window. Soon thereafter, the other five officers 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 encountered Mr. James lying in the aisle but before an arrest could be made James fled toward the window entrance and the guns. Kienzle identified himself and ordered the suspect to halt but James continued to run toward the window and the weapons. Officer Kienzle then fired three shots from his .357, all missing the suspect. After James exited through the window, he struggled briefly with Deputy Crandell but eventually broke loose and continued to flee on foot in a westerly direction. While Krugh, Crandell and Starke pursued James, officers Kienzle, Diamond and Easton arrested his accomplices inside the store. Krugh, Crandell and Starke all shouted at the suspect to stop, but to no avail. Officer Krugh fired three rounds from his shotgun, apparently nicking James in the right hand. When he continued to run, Officer Starke fired two rounds from his .38, the second of which struck Mr. James in the back of the skull and killed him. The body was recovered 298 feet from the spot where Officer Starke shot.

Plaintiff's § 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). In Garner, the Court held that the fourth amendment's prohibition of unreasonable seizures forbids the use of deadly force to prevent the escape of a suspected felon unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others. Id. 471 U.S. ___, 105 S.Ct. at 1697, 85 L.Ed.2d at 4. Therefore, Garner effectively overruled the common law, "fleeing felon" rule that allowed the use of deadly force as a last resort to apprehend a fleeing felon and effect an arrest. While the fleeing felon rule was, at one time, followed in all common law jurisdictions, the Court noted that it had been increasingly eroded or abandoned in recent years. In particular, the Court cited a 1982 study that found that 86.8% of the nation's police departments had internal regulations restricting the use of deadly force to apprehend a nondangerous, escaping felony suspect. Id. 471 U.S. ___, 105 S.Ct. at 1705, 85 L.Ed.2d at 14 (citing K. Mantulia, A Balance of Forces: A Report of the International Association of Chiefs of Police 161 (1982) (table)).

Furthermore, the Court employed the familiar fourth amendment balancing principle in its analysis. As announced in Camara v. Municipal Court, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), a court 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." Garner, 471 U.S. at ___, 105 S.Ct. at 1699, 85 L.Ed.2d at 7. Considering the totality of the circumstances, the Court concluded that the government's interest in apprehending a nondangerous fleeing felon did not justify the use of deadly force. Id. 471 U.S. at ___, 105 S.Ct. at 1700, 85 L.Ed.2d at 8.

In determining whether a newly announced fourth amendment decision such as Garner is to be applied retroactively to pending criminal and civil/constitutional cases, courts look primarily to the novelty of the decision (i.e., whether it represents a clear break with settled precedent and police practices or merely extends an existing principle to a new fact situation). United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982). Because the Garner decision was not entirely unanticipated in the law enforcement community and because it applied the well-known balancing test, at least one Circuit Court of Appeals has held that the new fleeing felon rule announced in that Opinion should, theoretically, apply retroactively. See Acoff v. Abston, 762 F.2d 1543, 1548-49 (11th Cir.1985). I emphasize the word "theoretically" because the Acoff court conceded that police officers might be protected from retroactive liability under Garner by the doctrine of qualified immunity. Id. at 1550.

The law of qualified immunity for public officials was recently purged of its subjective elements and reshaped into an entirely objective test. See Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The Harlow Court stated that:

Governmental officials performing discretionary functions generally 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.

Reliance on the objective reasonableness of an official's conduct, as measured by reference to clearly established law, should avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. On summary judgment, the judge appropriately may determine, not only the currently applicable law, but whether that law was clearly established at the time an action occurred. If the law at the time was not clearly established, an official could not reasonably be expected to anticipate subsequent legal developments, nor could he fairly be said to "know" that the law forbade conduct not previously identified as unlawful.

Id. at 818, 102 S.Ct. at 2738 (emphasis added) (footnotes and citations omitted). Because qualified immunity is truly an immunity from suit, as opposed to a mere defense to liability, a defendant is entitled to a determination on the issue prior to the commencement of discovery. Id. For that reason, I suspended discovery in this case until I could decide these motions. Furthermore, the Supreme Court held just this summer that a denial of a motion raising qualified immunity is immediately appealable. See Mitchell v. Forsyth, 472 U.S. ___, ___, 105 S.Ct. 2806, 2815, 86 L.Ed.2d 411, 425 (1985).

The real question in this case, as in all cases involving the claim of wralified immunity, is whether the conduct of the individual defendants violated a clearly established constitutional or statutory right, and if so, whether the individual defendants should reasonably...