Landrum v. Moats Court Opinion

    1.320 57« I'l KUAI. KKI’OimOR, 2d SKRIKS

;• I

SM!'

A|i|»‘llarils furtluT arj>ii(‘ Hi llic slalc- 
nu.'iit (‘oiK'criiinjr a lir lest, fol-
liiwi'd liy U'stimoiiy alliKliiij  ̂ to tlic fact that 
heeauso of fj;rain sliortaf^es licisinj^cr was 
fired, resulted in tlie jury assumir. ĵ any lie 
(leleeLor lest j îven lo lifisin^jer imist havi- 
been failed. Whether or not the jury re­
ceived such an ini|ireasion is rnool in lifrlit of 
the fact that, ladsin^^er testified in (̂reat 
detail as to how he, alon ĵ with othi'rs, 
caused the {Train shorta{^e.

The refusal to {rrant a mistrial or {>ive a 
cautionary instruction was not prejudicial 
error.

There beiipj no merit in any of the appel­
lants' arpiimeiits, thi‘ convictions are af­
firmed.

; HfYNllMlKRSYSUW;

l/csiic L.ANDRIUM, Siiccial Admiidslia- 
irix of flic I'hslatc of Roy l,cc l.and- 

rum, DcY'cascd, Y\|)pellaiit.

M U - e iW d

.lolin MOATS and Robert .1. 
Rockwidl, Y\p|)ellccs.

No. 77-l(i.%.

United States Court id' Ap|ieals, 
KipThih Circuit.

Submitted .Ian, 11, lll7!s. 

Decide.l May d'h l'd7S.

.Special administratrix brought civil 
r’{rhts action a{rainst city police (d'ficers 
who shot and killed plaintiff's son as lu’ was 
fleeinp; from the scene of a bur{ilary. After 
the jury returned a verdict for the police 
officers, the llriilcil .Slates Ui.slricl t'oiirl 
for the Ibslrict of Ncbiaska, AMierl U 
•Sch.at/., ,1., denied posttrial motions lor 
jiid{'menl not withstandin(T the verdict oi' 
for a new trial, and plaintiff apiiealed. The 
Court of Appeals, Hripht, Ciicmt .ludpe,

held that: ( I )  plaintiff had standin(T to
(irosecute the action; (2) the complaint, 
thou(rh vapTiie, staled a cause of action suf­
ficient to ('(infer jurisdiction; (3) the Ne­
braska statute pertaining to the use of 
force in law enforcement ajiplied to police 
officers; (4) the two |)olice officers exer­
cised unreasonable force as a matter of law 
in firing ai the fleeing suspect where nei­
ther officer believed that the crime for 
which they sought lo arrest the sus|)cct 
involved the use or threatened use of deadly 
force or that a substantial risk existed that 
the suspect would cause death or serious 
bodily harm if his a|iprehension wi're de­
layed; (fi) the officers were entitled to a 
([ualified immunity from liability based on 
good-faith belief in the propriety of their 
actions and reasonable grounds for that be­
lief; (ti) the defense of good faith was not 
preempteil by Nebraska law; (7) the exist­
ence of an issue as to the officers' good 
f;dlh was a bar to granting a. judgment 
notwithstanding the verdict on liability, and 
(S) because, on the theory upon which the 
case was submitted to the jury, the verdict 
was unsu|>ported by the evidence and was 
contrary to the instructions, plaintiff was 
entil led to a new trial.

Reversed and remanded.

I l''c(lcral Courts c=>.'i42
y\n appellate federal court must satisfy 

itself not only of its own jurisdiction but 
also of the jurisdiction of the lower court in 
the cause under review.

2. Federal Courts c=>4.'il
Nebraska law governed (pieslion 

whether mother of decedi.'nl had standing 
to bring civil rights action against city po­
lice officers to recover damages for the 
shooting death of her son as he fled from 
scene of burglary. '12 II.S.C.A. §§ lilSH, 
ItIKS.

;!. Civil Rights '■'g-‘>13.(i
Special administ rat ri .\ of her son's es­

tate had standing under .Netiraska law to 
tiring civil rights action against city police 
officers to recover damages for the shooting 
death of plaintiff's son as he fled I rom the

'' ■ >



in<lin(X to 
■oniplaiiit,, 
ction awf- 
) llu' Nr- 
ic use of 
I to police 
■ers exer- 
ter of law 
vhere nei- 
iTime for 
le susp(;cl 
of deadly 
isled that 
or serious 
were de- 

litleil to a 
based on 

y of their 
ir that he- 
h was not 
the exist- 

cers’ ffood 
judgment 
hilily, and 
which the 

lIu' verdii'l 
< anil was 
untiff uas

lust satisfy 
liction hut 
er court in

(pK‘st ion 
d standing 
ist city po­
os for the 

fk'd from 
IDHd,

•r SOM S es- 

ska law to 
eity police 

he shootin̂  ̂
d from the

I.ANDIU M V. iMOATS
< i(i ii».'i7BK.2d 1320 (1978)

1321

scene of a hurplary. 12 (I.S.tVA. tjti IttSd, 
IhSK; IM{.S.Neh. I'.llli, tj HP SH),

I. I''edcral C o iiits

In order for court to have suhjeel mat­
ter jurisdiction, the pleading; must on its 
fac(‘ state a cofrnizahle claim for relief.

5. C iv il U i^h ls  c -^ i:{ .:t( l)

In a civil rifchts action to redress al- 
lejred de[irivations id' rijchts, privilcfres or 
immunities secured by the Constitution and 
laws, plaintiff must be able to point to a 
S()ecific, articulable constitutional ri)^hl that 
was transj^ressed. '12 IJ.SC A. § ItITI.'i.

fi. C iv il R ights lit,12(d)

For lairpose of determining- whether 
civil ri),dits complaint stated a copjnizable 
claim for relief, each of the Fourth, Fifth, 
Sixth, Fifjhth and Fourteenth Amendments 
could be plausibly coristrued to forbid the 
use of deadly force on a fleeinp- felon who 
did not use violence in committinp the felo­
ny and who posed no llireal to anvone 
IJ.S.C.A.ConsI. Amends. 1 ti, JS, I I; 12 tl.S. 
C.A. lOKIt.

7. C iv il R i^ lits  I:t.l2 ( I)

l)es|)ile fact that complaint was .some­
what vajcui.’ in that it did not specif) < ilher 
the nature of tin- ripht allejp-dly violated or 
exactly which constitutional provision pro- 
ti'<-ted the rip;ht, complaint wherein mother 
of deceilent assei-ted that city police officers 
had deprived her son of riphls, privilej^es 
and immunities p;uaranl(-ed by the Fourth, 
Fifth, Sixth, Fiphth and l''oiirteenth 
Amendments win-n the (d’ficers shot anil 
killed plaintiff’s son uhile he was fleein)  ̂
the scene of a burplary stated a <-ause of 
action sufficient to confer siibjeci matter 
jurisdiction. -12 I 'SC .A . § IttK.’i; II.S.C.A. 
Const. .Amends. 1 (i, H, I I.

H. C onstitu tiona l l.aw 0^^271(2)
The rip;ht to life is fundamental ;ind is 

protected afpiinst unri-asonable or unlawful 
takinjjs by the procedural dm- process re- 
ipiiretnents of the Finii and Fourlecnth 
Amendment.; C SC A Const. Aun nd;;. .o

!k IVIiinicipal C orporations <3=;=>188
'I’he Nebraska st;itule pertainitiff to the 

usi’ of force in law enforcement iloes apply 
lo police officers, notwit hstandin)  ̂ fact that 
the section refers only to "actors” and that 
the statutory definition of “ actor” excludes 
law enforcement officers. R.R.S.Neb.lttld, 
§§ 28 8;i:t to 28 8i;t, 28 88i).

10. IVIuniripal C orporations G=^188
Where police officers who pursued and

fatally shot burp;lary suspect did not believe 
that the crime for which they were seekin)  ̂
to arrest the suspect involved the use or 
threatened use of deadly force or that a 
substantiid risk existed that the suspect 
would cause death or serious bodily harm if 
his appreliension were d(;layed, the police 
officers exercised unreasonable force as a 
matter of law, under Nebraska law, in fir- 
inj,r at the suspect as he fled. K.R.S.Neb. 
HM8, § 28 8;i>).

11. C iv il R i);hts 12.1(2)
l''act that city police officers used ex­

cessive lorce as a matter of law in connec­
tion with ineideni that led to death of bur- 
p;lary suspect did not necessarily estalilish 
lh;it the police officers were liable to the 
suspect’s mother for unrea.sonable or un­
lawful takinjT of the sustiect’s rijchl to life; 
rather, police officers were entitled lo de­
termination whether they acted in ffood 
faith. 12 n..S.C.A. l ‘.t82.

12. ( ’ iv il R i);h ls c=»i;t.8(l)
In actions to obtain dama^jes for civil 

rip-hts violations, police officers are entitled 
to a ipialified immunity from liability based 
on p;ood-faith belief in the jiropriety of their 
actions and reasonable j^rounds for that be­
lief. -12 U.SC.A. § l',)8;i.

l i. ( ’ iv il R ijr)i(s <s=>i;!.l(2)
In evaluatitip' police conduct relatinjf to 

an arrest for purpose of delerminint; 
whether the conduct violated the arrestee’s 
civil rights, the court’s fruideline is fcood 
faith and probabh' cau.se. -12 U..SC..A 
§ l'.»82.

I 1. ( ’ iv il Ri)j;hts 1,'J.IO
In assessiM).; the propriety of force used 

b\ I he police to effect an arrest, for purpose

I »
I '

M  ‘ I

i 

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\:i22 r)7<: 1 I ) i ;k a l  k is I ’o im ic k , 2d s i ;k i i ;s

il i ■

SVii

';

of (lolcrmininj: any liability > ir civil rij^hls 
violations, police officers arc entitled to tlie 
defen.se of jjood faith, even if tiu-ir use of 
force Inrns out to have been illegal or ex­
cessive, if the officers believed that .a cer­
tain amount of force was necessary to make 
an arrest .and that use of that amount of 
force was lawful under the circumstances 
and if the officers had reasonable jjrounds 
for each of those beliefs. 12 n.,S.('..A. 
§

1,'). ( ' i v i l  I t iK h ls  <^12 .10
Tlu' defense of good faith is not inap- 

plicable to a civil rights action based on 
excessive force and assault and battery by a 
police officer. 42 U.S.d.A. § HW2.

Hi. C iv i l  R i g h t s  c ^ l l b H )
In civil rights action against city polica' 

officers wherein decedent’s mother ..sought 
damages for the shooting death of her son 
as he fled from scene of burglary, the appli- 
ciition of a good-faith defense was not pns 
empteii by Nebraska hiw. 42 U.S.C.A. 
§ I'.Ki; R.R.S.Neb.HMd, § 2S «41.

17. C iv i l  R i g h t s  <fc=> 1 I ) ,  l i t .10
'I'he section im|>osing liability for depri­

vation under color of state law of rights, 
privileges or immunities siaaired by the 
Constitution <md laws |)rovides a federal 
nunedy for the redress of wrongs done un- 
iler th(! color of state law and, iis such, state 
law or the prevailing common-hiw view is 
not decisive as to the availability of (h f̂ens- 
es; rather, the priwailing common law must 
be considered in light of policies and pur­
poses of tlu: civil rights action to determine 
whether importiition of a defense, or allow­
ance of a defense where the common law 
proviiles none, is a|)propriate. 42 U.S.C..A. 
§ 1<)K2.

18. C iv i l  IH g l i t s  c== i ; ( . l ( (
In (h'fending against civil rights act ion 

to recover damages for the shooting death 
of plaintiff’s son as he flc(l from scene of 
burglary, city police officers wer-c cntilhal 
to rely on provisions of their fxilice m.'inual, 
even though those (irovisions conflicted 
with the postincident itderpretat ions of 
state law as pronounced by the di;:trict 
court. 42 l.I.S.CkA. 1!)82.

lib Civil Rights o=>i;t.l4

Because good faith is dependent on mo­
tivation and conduct of the defendant as 
est;d)lisheil at Iriid, tlu; validity of the de­
fense of good faith is ordinarily a (piestion 
for the jury, in a civil rights action. 42 
U.S.C.A. § 19,82.

20. Civil Rights c:= 12.12(1)

In a civil rights action presenting a 
<piestion as to the defendant’s good faith, 
burden is on defitulant to prove each ele­
ment of the good-faith defense to the jury’s 
satisfaction. 42 U.S.fkA. § 1982.

21. Fedcial Civil Procedure ®=»2242 
Where verdict in favor of city police

officers, in civil rights action arising out of 
fatal shooting of burglary suspect, was un­
supported by the evidence and contrary to 
the instructions u|)on which the case was 
submitted to the jury, plaintiff was entitled 
to a tiew trial. 42 U.S.C.A. § 1982.

Charles (). Forrest, Omaha, Neb., argued 
and on brief, for appellant.

’I’ imothy M. Kenny, Asst. City Atty., 
Omaha, Neb. (argued), and .lames K. Fel­
lows, Omaha, N(4)., on brief, for aj)|)ellees.

Before BRK4HT, STF.l’HKNSON, ami 
IIKNI.KV, Circuit Judges.

BRKIHT, Circuit Judge.

l.eslii' l.andrutn, special administratrix of 
the estate of her son, Roy Lee Landrum, 
brought a civil rights action under 42 U.S.(L 
§ 1982 (1971)) and a common law tort action 
against Omalui police officers John Moats 
aiul Robert Rockwell seeking damages for 
tiu' shooting death of her .son ;us he fled 
from the scene of a burglary. The jury- 
found for the def<‘iulants, and the district 
court <lcrued post-trial motions for judg- 
nietit not w it hstatiding the verdict or a new 
Iri.'d. i ’lainliff then brought this appe;il 
assertin(>, |)iiniarily that the district court 
erreil in its rulings on the.se post-trial mo­
tions. In support of the verdict, appellees 
•Moats and Rockwell contend that under an

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I.ANDKIIM V. MOATS
< ilcas576F.2<l 1320 (1978)

1323

approptialf fonslniction ol' Nebraska law 
they wvro not. liable as a matter of law.

nasoil on our review of tlie record, we 
affirm tlie ordiu' of tlu* district courl deny- 
ing judjjmenl n.o.v. We reverse the order 
denyinjj a new trial, however, ami remand 
to the district courl for a new trial.

1. FucUuiI Ihickf^romul.

On AiiRUst lb, 197fi, at 2;10 a. m., a police 
dispatcher informed officers Itockwill and 
Moats that a burglary was in proRress at a 
service station located at IbOl l''h'rence 
Roulevard, Omaha, Nebraska. The officers 
proceeded immediately to the aihlress. .As 
they entered the driveway of the station, 
they saw the (h'cedent, Itoy l.ee Landrum, 
exit throujth a window on the north side of 
the station, jurnpinti; >mto some tires and 
debris and then ilown to the ground, both 
officers huiped out ol tin* car, and officer 
Rockwell hollered: “ Stop, police.

Landrum apparently heard the shout ami 
crouched down, looking direi tly at the ofli- 
cers. He then turned to the east and ran. 
Officer Moats fired a siri);le shot at him 
while stamlinp: by the poli<’«' car. 'I he shot 
missed, and lioth officers chased Landrum, 
shoutiiift at him to halt, until they remdu’d 
the northeast corner of the station. '1 here 
they Sb.pped and bef^an firin)r at Landrum 
as he ran away, each firing' two shots al­
most simultaneously. One of the bullets 
struck I.andrum in the back, killinp; him.'

No weapons wa'Ct̂  found on Landrum. At 
trial, l>oth officers testified that they luul 
no reason to believe that Lamirum was a 
threat to their safety or to anyone else’s. 
The officers justifhd the use of deadly 
force on the j^rounds that they Ik liewd that 
I.andruin would escape unless liny sliot 
him. In doinp; so, both ndiml on a directi\e

of the Omaha [mlice department, effective 
at the time of the incident, that among 
other things permitteil a polici' officer to 
use his firearm in the iierformance of his 
duty to

effect the arrest or capture, or prevent 
the escape or rescue, of a person whom 
thi' officer knows or has reasonable 
grounds to believe lias committed a felo­
ny, wdien all other means have failed.

II. Suhjccl Mitltvr Jnrisiliction. 

i n  Although neither party has raised 
the jurisdictional issue and the district 
court assumed jurisdiction, it is well settled 
that "|a|n appellati" federal court must 
satisfy itsidf not only of its own jurisdic­
tion, but also of that of the lower courts in 
a cause under review.” Mitchell V'. Mnurcr, 

U.S. 2d7, 244, 55 S.t't. 152, 1115, 79 L.Kd.
(1924) (footnote omitted). Therefore, 

we deem it appropriate to discuss the feder­
al jurisdictional basis for this action.

|2, ;i| Shortly after the death of her son, 
on November 7, 1975, I.eslie Landrum filed 
the present action in the LInited Slates Dis­
trict Court for the Kastern District of Ne­
braska.'  ̂ In count 1 of hiT complaint, she 
contendesl that officers Moats and Rockwtdl 
had deprived her son of constitutional 
rights, violations of which are actionable 
under 42 D.S.C. § 19S2:

Lverv person wdio, under color of any 
statute, ordinance, regulation, custom, or 
usage, of any Staii' or Territory, subjects, 
or cansi:s to be subjected, any citizen of 
the United States or otlu-r person within 
the jurisdiction thereof to the deprivation 
of anv rights, privilegi’S, or immumties 
securetl by the Constilulion and laws, 
shall be liable to the |)arty injured in an 
action at law, snd in eipiitvy or othei 
proper proceeding for redri*ss.

. I lie purl ICS nil ni'icc llinl I'lllici olli ' < i Mo,Us 
Ol otiicci KocUwcll liicrl llic l.il.il -liol. Imt 
uliosc Imllcl killcil I.OKliiim was not lom  In 
sivcly cst;il)lis!ic(l .it liinl

I lie issue ol sniiiilmg w.is not iliscic.scd liv 
i iihci pKily, bill liciiiiisc II IS an l•ll•lllclll ol llic 
irtii Ic III ic<|iiiicniciil ol .1 I .ISO oi i mil  i o\ci s\ 

,1 liiicl I oiillliciil e. Ill onlci III po"  ceilings li- 
Moili i. iic cnil iiglils, IJ r  .s( <} I' iss (111/01

.iiillioii/cs rctciciicc 111 stale law lor questions 
Icll iiiianswcicil li\ llic applicable tcclcral l.iw. 
licc.iiisc <} ItlHIt (Iocs not nicnlion standing, wc 
must lurii to Nchiaska l.iw in oulcr to as- 
ccitain wlictlici Leslie l.aiiitinni, Ihc decedent's 
inollicr. has standing to prosecute this aetion 

e hold that she does, .Sec NchKe\,Stat. 
Ill SKI (lllV.h leissne); cl A/.dtis v. .Sc/jii.i m . 
j  I ltd hs.s, rert (Sill t'n i;i7i).

\v



1324 r)7« I'KDHKAL lOrOIMKR. 2d SKKIKS

Kf.'

Count II of llic oomplaint w:is a pono.'tit 
stale tort tlaini for assault and batlcry.

|4,51 In order for the coiirl to have 
subject inalU'r jurisdiclion, I be pleadiiij  ̂
must, on its face, state a cognizable claim 
for relief. In a section I9S2 action, the 
plaintiff must be able to point to a specific, 
articulable (a>nslitutiotial ripht that is 
transjjressed.

[6| In the present case, plaint if f-ajipel- 
lanl asserts violations of fourth, fifth, si.vth, 
eighth, and fourteeidh aniemlnietit rights: 

That the acts of the Defendants, ,Iohn 
Moats and Robert J. RockwrdI, under col­
or of law and under color of their author­
ity as police officers of the City of Oma­
ha, as hereinabove set out, deprived Roy 
Lee Landrum of his rights, pi'ivileges and 
immunities guaranteed to him as a cilizeti 
of the United Slates, by Amendments 1, 
5, 6, 8 and 14 of the Constitution of the 
United Slates, to Plaintiff’s damage in 
the sum of $l,bdl),000.0(), and $:i,()l)(),- 
000.f)0 punitive damages.

Although the complaint did not specify ei­
ther the nature of the right violated or 
e.xacily which constitutional provision pro­
tected it and how, each of these amend­
ments could be plausibly construed to forbid 
the use of deadly force on a fleeing felon 
who has not used violence in the commis­
sion of the felony and who poses no threat 
to anyone.’

3. Kacli of these possililp couslilutional bases, 
with the exception ot tlie sixlli ameiulnietit. is 
thorouplily canvassed in CommetU, Dviidly 
Force to Arrest: Vrijinerittg Coiistitutiontil Ue- 
ciew. 11 llarve:.K. C.I,.l..Rev. 361. 371 
(1976).

4. .See Kiiss v. Kotlili, .63H 1 .2d 799 (Kth ( it 
1976). cert denied. 429 II.S. 1041. 97 .S.Ct. 740, 
90 l..Kd2d 7.'>3 (li)77). In liuss, ;i rtise in 
which the police shot to death a traffic offender 
in custody, we held that the use of excessive 
force a t̂tiinst a itrisoner stated a cause of tie 
tit)n under section 1983. We did not, however, 
specify the exact basis for jurisdiction over that 
cause of action.

,9. Mi( litiel M.litis, ape eip,hleen, and 1 hoinas 
Uolf, ap.e seventeen, weie diseoveled in the 
ollice ol a poll diivinp, ranp,e at appio.xiniale 
ly 1:20 AM . by police olliier. Kn haul 
•Schnarr. Shortly thereafter, the tw'o boys 
left the office hy climbing out through the 
back window. .Schnaii shouted at the boys

I'liiinliff-tippelhint’s Viigtietiess is some­
what understiindable, for while this court 
lots enterltiincil simihir section 1983 actions 
in the pa;;l iind tissumcd subject imitter 
jurisdiciion,‘ our sole decision cltirifying the 
precise iititure of our jurisiiiclional power 
wtis vticiiteil on procedurtil grounils by the 
Supreme Uourt, and thus no longer slantls 
its binding |irece(lent. Mntlis v. Schnarr, 
547 I''.2d 1(K)7 (8th t'ir. 1976) (Maltis I I )  (cn 
Inittc), vacated as tiioot sub now. Ashcroft 
V. Mattts, 431 U.S. 171, 97 S.Cl, 1739, 52 
L,Ktl.2d 219 (1977). See also Maltis v. 
Schnarr, 502 F.2d 588 (8th Uir. 1974) (Mattis 
/) (three-judge panel). In Mattis, a ciise 
with facts nearly idenliciil to this case,’  this 
court ruled unconstitutional a Missouri stat­
ute that permitted the police to use detully 
force to apprehend a fleeing felon who has 
used no violence in the commission of the 
felony tind who does not threaten the lives 
of eitlu.'r the arresting officers or others. 
Prior to its holding on the merits, the court 
assumetl jurisdiclion by first declaring that 
an individual has a fundamental right to 
life, and then finding that right protected 
against unreti.sonable or uidawful taking by 
the procedtirtd ilue jtrtK’ess safeguards of 
the fifth and fourteenth amendments. 547 
F.2d at 1017 20. The court declined, how­
ever, to find additional constitutional causes 
of actions implicit in the case based on the

to ball riiey ran in differeiU directions. 
.Sdinari tbeii shouted. “ Halt or I'll shoot” 
two limes. When the lioys failed to stop, he 
fired one shot into the air and one shot at 
Roll. Meanwhile, Officer Robert Marek, who 
had arrived on the scene, ran to intercept the 
boys, lie  collided with Mattis as he came 
around the tornei ot the building. Both fell 
to the iiavement. Marek grabbed Mattis by 
the leg. Mattis broke away. Marek ran af­
ter him. Marek was losing ground. He 
shouted. “ .Slop or I'll shoot.”  Mattis did not 
slop. Maiek, believing it was necessary to 
take further action to prevent Mattis’s es­
cape. lin'd one shot in the direction of Mattis 
and killed him Hoth olfic.ers lielieved that 
the use of Iheii puns was reasonably neces- 
s.nv to elleci an aiiesi and w.is anthoii/.ed 
by valid Mc,S'nni '.talutes.
IM.illi.s V.  Sciw.irr. 917 f.2d 1007, KMI9 (Hth 
Or. 19761.1

t



I.ANDKUM V. MOATS
C ite as 57fi l .2il 1320 (I97 »)

1325

i.s is some- 
■ lliis coiifl 

actions 
icct matter 
irifyinjr the 

lonal power 
mds hy the 
nj,>-er stands 
e. Schnnrr, 
n t is  I I )  {on 
II. A shc ro f l  
t. 52

M ii t t is  V.
•74) (Mntti.s 
ttis, a case 

case,’  this 
isouri stat- 
iise deadly 
in who has 
ion of the 
n the lives 
or others.
, the court 
aring that 
I right to 
protected 

' taking hy 
guards of 
ent-s. 547 
ned, how- 
nal causes 
ed on the

(lireclion.s.
I'll shoot"
10 stop, he 
ne shot at 
larek, who 
lercept the 
• he came

Both fell 
■Matlis hy 
ek ran af- 
luntl. I le 
Us did not 
essary to 

lattis's es- 
of Mattis

11 ved that 
hly nei.es- 
'iilhon/.eil

IIKiU («ih 4
: W• t

eighth iimendmetil cruel and unusual pun­
ishment clause and the foiirleenlh amend- 
tnenl eipial protection chiuse Id. at 11)20 ii 
22 .

|7, H| Despite the vagueness of the com­
plaint in this ciise, we find that it states a 
cause of ticlion under section lOSti cotifer- 
ring jurisdiction on this court. In p:irticu- 
hir, we reiidopt the jurisdictional iiolding in 
Miittiii II : The right to life is fundamentiil 
and is protected agiiinst unreasonahle or 
unlawful tiikings hy the procedural due 
process stifeguards of the fifth anil four­
teenth iimendments. In view of this hold­
ing, we need not consider whetlur the 
phlintiff Leslie Landrum has also as.serted 
cogniziihle claims under the fourth, sixth, 
and eighth timendments. We note, too, 
that the circumstances lure are distinguish- 
ahle from A/att/.s. In Mutlis the police offi­
cers relied upon :i Missouri statute authoriz­
ing their use of deadly force. Here, as we 
discuss in part III A, the Nehraska statute 
in ipiestion restricted the |)olice officers' 
privilege of using deadly force.*’

III. The Tropricly of Jinlfpiirnt O. t 

As Slated ahove, the parlies essentially 
agree on the imporlaid facts of the case. 
Officers Moats and Rockwell conceded at 
trial that they had no reason to believe that

Ii. I tic Iiolding o f  'W.i'l/s I I  on ll ic i i icn ls w  is 
dia l s la lii lcs dia l a i i l l ion/c po lice o l l ic c is  to 
use deadly  lorce against f leeing noiivinleii l tel 
ons are uiiieasoii.dile per se and dins unconsli 
lulional. As  sneli, it is not inipliealed b\ this 
c.isc, uli.eti  is a challenge lo  die reasoiiali le 
ness o f  indii'idnal poln e a i t ion  la ther Ilian lo  ,i 
leg is la l i ie  gia ii l  ol powe i to use de.nlK' tori e 
niidei the i in line I.Hires .See p.n t III int i . i

7. .Nevcdtieless. in dieir  hiie l I hey argaie as lol 
lows.

I or  w in ie  I .nnirniii hrandislied no w eapons, 
nor physicall'. l on t ion ted  d ie  Deleiid.ints, 
ttie sitnalion ilsell represented ,i l ineal lo 
Itieir personal salels * * * |l |he( nenni
sl.nices as a whole  flight nilo a itnke i i i 'd  
niglil in a hl,n k neighhoi hood, l ornen i  
w lie l l ie i  Ihe telon was ai eoin|)anied h\ an 
ottiei (>ail\ well- ta i t o is  p io p e iK  ( ansnig 
Detendanis lo  tie . ipptehensi ie  loi then pel 
soliat l..detv

W'e 1 e)ei t I tns .n g.nnieiit I .nidi IIIn w .is shot in 
die ti.M k .IS he I led No e\ idem e e\ en sngg.e'a ' 
die pi eseili e ol ,n> ,n i on iplli e ol ol .111 I lln e 
to the o l l l i i i s '  .,ihl\ I I I  III.It ol .iilMMle rh

the decedent, a burglary suspect, had used 
violence in Ihe commission of tlie burghtry 
or t h;it he posed a threat lo anyone’s stife- 
ty.' Roth tesliried that they shot :it the 
decedent to prevent his esciipe from arrest. 
For her part, Leslie Landrum does not dis­
pute the existence of probalile cause to ar­
rest her son for a fidony.

('liven the above facts, Landrum proceed­
ed under two iilternative theories in prose­
cuting her section 1!)H2 chiim: (1) the shoot­
ing dciith of her son w:is a per se unreason­
able tiiking of her son’s life; or (2) even if 
not per se unreasontible, it was unreason- 
iible given the circumstances. In addition, 
she tirgues here that the good f;dth defense 
noniiidly provideil police officers in section 
1982 actions against them** was unavtiilable 
to these defendants because it had been 
expressly preempteil by Nebraska law. We 
consider each of these points separately be­
low.

A.

In sup|ior1 of her conclusion thiit the use 
of deadly force*' against a fleeing, nonviol­
ent felon is per se unre;i.son:ible, Leslie 
Landrum relies on this court’s interpreta­
tion of Ihe fourteimth amendment due proc­
ess clause in Matlis //,"’ :uid section 28 829

S. .Sec, c. g., /’n icm n iT  i. Navarette , 424 ll.S. 
.S.'"),''), IIK S .( I. K.''),'’!, .25 l..l.d.2d 2A ( I ‘ I7H;; f ’ler- 
son  V. R.i\. .(Ml ll.S. .217, K7 S.Ct. 121.2, 18 
I. lal 2il 288 ( Iil(i7>,

t). iJcadly fori'c is defined in section 28 822(,2) 
ol the Iteissiic ol Riw'iscd .Statutes of Ncliraska, 
ItM.'i

DcadK lon e sli.ill iiicaii force whicli llic ac­
tor uses witli llic piir|iosc. of causing or 
w ini li lie knows to create a siilistantial risk 
of causing death or serious bodily liariii 
I’ urposidy tiring a fireariii in the direction of 
aiiollier person oi .it a vehicle ill which an­
other iierson is believed lo be constitutes 
deailK loree

III. I he lollownig laiigii.ige in Mat l i s  II is panic- 
ill.Illy leliwaiil:

the police ollieer eaiinol l)e coiistitiitionally 
vested with the power aiii) authority to kill 
anv and all ese.ipiiig lelons, iiieludin.g the 
thiel w ho sle.ils an e.u ot eorii, as well as oiU‘ 
who kills ,nid i.o'ishes at will, fo r  the i ea 
sons we h.iie onihned, the oltieei is rcituired

i »

f ■

4 If



m 132() r,7 (; k k i ’o i m 'k k . 2d s k k ik s

1 ’

I l f

j  f t

I K

I*!-

tn’

of the iU'issiio of Ucvis<'(l Sl:iUit. s of No- 

hraska, l ‘M:k

We consider tlie statutory elaiin first. 
Section 2H 8:W provides, in relevant part, 

that;
28 889. ('.sc of force in low enforce­

ment. (1) Suhject to the provisions of 
this section ami of section 28 841, llu' use 
of forc(; upon or toward the person of 
another is justifiable when the actor is 
making or assisting in niakitig an ariest 
and the actor believes that such force is 
immediately necessary to effect a lawful 

arrest.
(2) The use of force is not justifiable 

under this .section unless:
(a) The actor makes known the p\ir- 

pose of till! arrest or believes that it is 
otherwise known by or cannot reasonably 
be made known to the person to b>' ar­

rested; and
(b) When tlie arrest is made under a 

warrant, the warrant is valid or believed 
by the actor to be valid.

(3) The use of deadly force is not justi- 
fial)le under this section unless:

(a) The arrest is for a felony;
(b) Such person effecting the arrest is 

authorized to act as a peace officer or is 
assisting a person whom he believes to be 
authorize<l to act as a peace officer,

(c) The actor believes that the force 
employed creates no substantial risk of 
injury to innocent persons; and

(d) The actor believes that;
(i) The crime for which the arrest is 

made involved conduct inclmling the use 
or threateiusi use of deadly force, ot

(ii) There is a substantial risk that the 
person to be arrested will cause death or 
serious bodily harm if his apprehension is 
delayed,

to use a irasi>iial)lc ami iiitoimecl luolessiuii 
al jmlamenl. rcmaimii); eoiislanlly aware tiul 
(leatli is Ihe iillimate weapon ol last resorl. to 
t)C employed only in situations presenlinj; the 
gravest tlireal to either tlie ollieer or tlie 
pulrlir at large, 'thus, wi- have no alternative 
hut to I'iml V.A.M..S. §§ r.rgt.O'IO and .‘i't-l.lOO 
unconslilutioual in that they permit police

IMaililv, one of the prerecpiisites to the use 
of deadly force was not met in this case. 
Neither officer Moats nor Rockwell 1)C- 

lievecl, its recpiired by stlbsection 3{(1), that 
the crime for which the jirrest was mtide 
involved Ihe use or threatened use of deadly 
force or that a substantial risk existed that 
the decedent would cause death or serious 
bodily harm if his aiiprehension were de­
layed." Thus it appears that Nebraska has 
made the use of ileadly force against flee­
ing nonviolent felons unrea.sonable per se.

In response, however, officers Moats and 
Rockwell contend that the provisions of sec­
tion 28 839 do not ajiply to law enforce­
ment officers. 'I'hey rely on section 28 833 
of the Nebraska laHle, which defines the 
terms used in sections 28 833 to 28 843, 
including the term “ actor. That term, 
used in the section 28 839 jirovision con­
cerning use of force in law enforcement, 
apparently excludes Nebraska law enforce­
ment officers from the reijuirements of the 
subseipieiit jirovisions:

28 833. Terms, (kfined. As useil in 
sections 28 833 to 28 843, unless the con­
text olherwi.se reipiires:

(4) Actor shall mean any person who 
uses force in such a manner as to attempt 
to invoke the jirivileges and immunities 
afforded him by sections 28 833 to 28- 
8̂ 13, exce/it any duly authorized law en­
forcement. officer o f the State of Nebras­
ka or its iiolilical subdivisions * * * .
[Emphasis addeil.j

[91 As is evident, a direct contradiction 
exists between the definition of “ actor,” 
which excludes law enforcement officers, 
and .section 28 839, which seems to apply to 
law enforcement officers although it refers 
only to “ actors.” The district judge con­
sidered that issue and ruled that section

otiiceis to use demlly lorce to apprehemi a 
lleeiug Icloii will) lias used no violence in tlie 
lommission of the felony and who does not 
Uneaten the lives ol either the ariestitig offe 
eeis or others. |r..f) 1 .2d at 1020 (footnotes 
omitted) |

, St'C note 7



L A N D K IIM  V. MOA'I'S
( in- as 57«  K.2<1 1320 ( l » 78)

1327

the use 
liis case, 
veil be­
lli), that 
IS made 
f deadly 
led that 
serious 
ere de- 
iska has 
ist flee- 
per se. 

lats and 
< of sec- 
■nforce- 
28 833 

nes 'the 
28 -843,
' term, 
>n con- 
cement, 
nforce- 

s of the

ised in 
he con-

m who 
ittempt 
uinities 
to 28- 
aw on- 
Ve/»ra.s’-

idiction 
actor,” 
fficers, 
pply to 
refers 
e con- 
■lection

hend a 
c in the 
lues not 
iig otfi- 
otnotcs

28 83h does apply lo [lolice ofl'icers, relying 
on the legislative history and terms of sec­
tion 28 Hti.'t lhroii('li 28 8l:i, which wen 
intended to :idopt tlie Model I’eiial Code 
provisions on the use id lo r c e H . ' is e d  on 
our review of the same sources,'’ we agree 
with the district court,

110 I I liiih'i' these circumstances plaint iff 
l.csiie Liindrum est;dilished that the police 
officers had exei'cised unreasonahle force as 
:i milt ter of law

Because we Imvc detennined that appel­
lant eslahlished the use of e.xcessive force 
iis a matter of law, we need not consider 
her second theory of recovery under section 
1083: thill if not iinreiisonalile per se, the 
force used hy officers Itockwell and Moats 
wiis iinreiisomilile under the circumstiinces.

B,

111, 12| Oui' ruling tlnd officers Rock­
well and Moats used excessive force :is a 
niiitler of law does not necessarily mean 
thiit appelliint wiis entitled to a direited 
verdici, at the close of idl evidence, thus 
iiuthori/ing Judgment n. o, In section 
1083 iictions for damages, defendants iire 
entitled to a ipiidified immunity from liidiil- 
ity liased on good faitli belief in the proprie

12. I lie rilling c.iinc m Itic lou i l ' - .  ilemal ol a 
motion lo  (lisnns-. I»\ ll ic po liec o t tne i  1 tie 
Ina l com  I w i o l e  m pal I .

Itlc commenlaiA lo  See lm o it.07 ot the 
Moitel l*cnal ( 'o d e  i le .u lv  mihc.ites lhal Itie. 
scel ioii IS mieuileil lo  appl\ to law en lo ir e  
mcnl o ll i i i.ils .See Model Pen.d ( ’ode. lenla 
l i\e di.dt S. .'V') i;.i lA m e i i e a o  l aw luslUiile. 
ItiriH). In .iddii icn the sp e id ie  lanpn.ij’e ot 
■Seelion 28 H'Pl w h i 'h  pro\ ides m pail

I lie use ol de.idly ton e is not tuslitiahle 
nndei this seelion unless (l)| siieli
pe ison e l te i ln i i ;  the a iresi Is anitio ii/ed lo 
act iis a peat e o l lu  et
mandales the com hision lhal this seel ion ,ip 
plies to l.iw e i i lon  eineni nllii i.ils nolwith 
sl. iiidmg tile penei.d e.xenipiton tonn Sei 
lions 28 8.’i:i lO 2H 811, lOlll .lined III Ihe deli 
nilloiis

13. In .Ma/lis i .Se/m.oi, .'itV I 2d I0o 7. KM i 
(KihCir. I ‘ l7(l). ni l  .ih'i/,/s m oe l  .sidi iioiii , \s/i 
,11,11 V ’\/,Ufis. n i  I S 171. 07 S< I. 17,iP. W.‘. 
I I d 2d 2 I U 110 7 7 ). we eoiiiii Ml il ed on set 1 m in 
2 8  H2t l .n id i o i i i h ld e d l I l . i l  it lep iesen led

ly of their iictions and reasonable grounds 
for that belief. rrociinior v. Nnvnrottc,
131 II.S. .W), 118 S.(U 8.̂ ).''), r>r, I,.K(1.2d 24 
(1H78); ,8'c/ieuer v, /i/iix/e.s, .ItC) II.S, 232, HI 
S.Ct. 1(183, 10 l..lsd.2d 00 (1071).

|13, 111 Thus, for e.Xiimple, “ lw|heii a 
court evaliiales police condiiet relating to 
an arresl its guideline is ‘good faitli and 
probiibh' cause.' ” Sclu’iicr v. Rhiulos, su- 
pnt. 410 U.S. at ‘il.O, 04 S.tU. at 1001, (/uot- 
/ng Pierson v. R:ty, 380 II.S. ,')47, ,0,')7, 87 
S.(T. 1213, 18 l,.Kd.2d 288 (1007). A similar 
guididine must be applied in assessing the 
propriety of force ii.sed by the police to 
effei-luate an arrest. If police officers (1) 
believe that a certain iunount of force is 
necessary lo make an arresl, (2) believe that 
use of that amount of forci' is lawful under 
the circumstances, and (3) have reasonable 
grounds for (iicli of the foregoing beliid's, 
then they are entitled lo the defense of 
good faith even if the use of force turns 
out, e.v post, lo have been illegal or exces­
sive. .S'ee Profunior c. Navarette, supni ; 
Woo,I V. Slri,‘kl:in,l, 42(1 U.S. 308, 0,7 S.(T. 
002, 43 B.Kd.Od 211 (1077); Sclwiior v. 
Rhoilvs, siipr:, ; I'iorsoii v. Ray, siipro.

11.7-171 The defense of good faith is not, 
as plaintiff-appellant asserts, inapplicable 
lo an aclion based on excessivi' force and

llic Mndcl I’cnal C ode approach, wliicli pci 
mils Itlc use ol deadly toivc only wlicn llie 
eniiie loi wtiieli Ihe airesl is maiie mvo lws  
i ondnci mi hiding use or llircalciicd use ot 
deadiv lorce oi when llicre is a siihshmlial 
risk lli.il llic pei son lo lie arrcslcd will cause 
dc.ilh or SCI ions tiodilv ti.u in d tiis apprclicn 
Sion IS del.iycd |1 oolnole omitted |

M. the par.idipm ol "rc.ison.thlc grounds" tor a 
good l.nlh iHlii't in llic propiictv ot ollici.d 
action is reliance on a state statute taler lie 
clared uneonslitiitional. .See, e. g., I'irisot,  v. 
K.u, :i8(i II.S. .'ll?, .hfili 57. 87 .S.Cl, 121.2. 18 
1..I d.2d 288 (11)1)7). Reliance on less tornud 
St,lie pioi'isions ni.iy also he reasonahle, tvs- 
tmger V. t/ioiius, .|7(i 1 .2d 22.''), 221) (-till Cir 
11)71) I longstanding custom ol ihe .Soulh t ,uo 
hna .Semile); ( 'h i\hn,nc  c ihowpsoii. 2118 
t .Supp 221 (M  l) .Ala, 1072) (standard oper.it 
mg proi edures ot piisoii), and in our \ iew po 
lice olh iers mas iisiialls rely on standard oper 
.ilmg proi Climes i ont.imcd in their polii'e m.in 
n.ils.

i l l

. f

;

i  I



r>7G FKDKRAL U roiMKK, 2d SKKIKS

ii! :

Ii

1328
assaull and hallery.'^ Nor is il prcompti d 
liy Nebraska law.'*

15. In the inslnu tioii ('oiireiciK e at tiial, conn 
scl for plaintiff-appi'llanl objei Icil to the iia In 
sion of an instruction on the poo<l faith defense: 

MR l'ORKF..SI : I tie |ilaintiff wonid ohjeel 
to Instruction No 1 1 in tliat it permits tlie 
defendants the defense of reasontdileness in 
their belief in the valid slate law, and there is 
no question raised by defense counsel at any 
lime during this trial that the law of tlie slate 
was invalid. Tlie law lias existed prior to file 
date of the incident and I do not feel Ifiat tfie 
defense of reasonable tieliel is ;ip|ili( atile to 
tliis case. Also, with reference to the good 
faith, die good faith defense is not, in my 
opinion, applicalile to a etise involving exces 
sive force and assault and liatteiv. Il per 
tains to a case involving false arrest, mail 
cions prosecution, wfiere the issue ol proha 
tile cause arises, lhal issue is m no wav in 
plaintiffs view present in tliis case, lliere is 
no claim of false airest. no claim ol malicious 
prosecution involved. C’ommon law, the de 
tense of ieasonalileiiess, belief, and good 
faith, were not available to the torts of as* 
saull and battery and we would cile A/onroe 
\'.s. Pa/>e. Plaintiff objects to Instruction 1 1 
for those reasons.

1 he trial judge overruled the objection In this 
a|>peal, jilaintiff appellant reasserts her obje<- 
tion to the instruction, again citing Monroe v 
/'ape, ,3()5 U„S. Iti7, 81 .S.Cl. ■47.'i, .'I l..i;d.2d 4>)2 
(1901), which she cl.iims noted that, at com 
mon law, the defenses of reasonable belief aiul 
good faith were not acailable for the tort ol 
assault and battery. M onrof decideil no ques*

' tion of imnumily, however, and we <|uestion 
lilaintiff-appellani's reliance on it. In Moim if. 
the

police officers did not choose to * * *
defend the case on the hope that they could 
convince a jury that they believed in good 
faith that il was their duly to assault Monroe 
and his family * ♦ * . I l jhey sought dis
missal * » » contending » ♦ » tiuil
their activities were so plainly illegal under 
slate law that they did not act |under color of 
stale law] * * * as required by  ̂ 1983.
j/'/enson v. liny. 38(i U..S. ,'>47, ,'‘>,''i(i, 87 SXT. 
1213, 1219, 18 1. I d 2d 288 (19(i7).|

In our vimv, seition 1983 proviiJes a federal 
remedy for the redress of wrongs done under 
tin* color of slaft' law. As such, state law or 

the prevailing common law view is no longer 
decisive as to the availability of a § 198.3 
defense: lhal view musi be com.ideicd in
hg.lll ol Ibe |iolii ICS and pui poses ol llie 
tj 1983 ailion lodciciuim e wbeihei mipoila 
lion ol lire defense, oi allowain'e of a defense 
where Ihe (oinmoii taw piovides none, is 
appro|iriale. .See, e g , Inihirr v I ’nt htmnn, 
424 U..S. 40!l, -124 29 |9b .SCI. 984. 47 
l,.i;d2d 128) (1971.); U ’ood c. SIrU kIniKl. 420 
U S. .308, 318 22 |9.'> S.( I 9fl2, 4.3 l,.l.d.2d 
214] (197.')); Sclu-iwr v. Khodcs. 410 U S.

1I8| Tlierefore, in ilefeii.se of Ibis action 
for ilaintijres, police officers Moats and

2.32, 238 49 ]94 S3 I. 1083, 40 L.I-;d.2d 90] 
(1!)74). r ompare Whirl v. Kern. 407 F,2d 
781, 790 !)2 ffitli Uii ), cert, denied, 396 U,S. 
!)01 (90 SCI. 210, 24 I,.Kd.2d 177] (1969) 
(good faith no defense to fal.se imprisonment 
at common law, so no delen.se under § 1983), 
u'lt/i ltr\nn i'. ./ones, ,'>30 K.2d 1210 (5th Cir. 
1970) (en banc) (overruling Whirl and hold­
ing good failli defense generally available in 
§ 1983 damage actions).

Dcveliitnnents in the l.nw-.Section I9H3 nnd 
itHleinlisin. 90 Ilarv.l..Rev, 11.3.3, 1211 n. 126 
(1!)77), Contrn. Kslinrter v. Ihonun;, 476 F.2d 
225, 229 (4th fir . 1973).

16. Plainliff .qipt Maul relies on section 28 841 
of the Reissue of Neliraska Revised .Statutes, a 
provision that she i laims [ireempts the ap|ilica- 
lion of jtood failh dt-fensi’ to Ibis Ciise:

28 841. Mif-tnke ol I.iw; reckle.'is or neiili- 
cent use ol lorce. (1) Hie justification af­
forded by sections 28 8.36 to 28 839 is una­
vailable when;

(a) the actor's belief in the unlawfulness 
of the force or conduct against which he 
enqiloys jirotective force or his b(4ief in the 
lawfulness of an airest which he endeavors 
to effect by force is eironeous; and

(b) His error is Ihe result of ignorance or 
mistake as to the piovisions of sections 28 
8.33 to 28 8-1.3, any olhei provision of the 
criminal law, or the law governing Ihe legali­
ty of an airest or search.

(2) When Ihe ai tor believes that the use of 
lorce upon or lowaril Ihe person of another is 
necessai-y lor any of the purposes for which 
such belief would establish a justification un­
der sections 28 8.35 to 28 840 but the actor is 
reckless or negligent in having such Ix-lief or 
in actpiiring or failing to acquire any know'l- 
edge or belief which is material to the justifi­
ability of Ins use of force, the justification 
affonlcd by lho.se sections is unavailable in a 
prosecution for an offense for whicfi reck­
lessness or negligence, as the case may be, 
sullii es to establish culpability.

(3) When Ihe ai tor is justified under sec­
tions 28 835 to 28 840 in using force upon or 
low.ud the |>erson ol another but he reckless­
ly or negligeiilly injures or creates a risk of 
injury to innocent persons, the justification 
alloided by those sections is unavailalile in a 
proseiiilion lor such recklessness or negli­
g e n c e  towards nmocent pei sons.
We d'lubi llial Hus sei lion applies here for 

Ihe ollheis idled upon the law as given to 
ilieni in llii-ii polii c ollncis manual Ihe mis- 
l ike III Intel |)ielation tested with their sujieri- 
ors In any event, the defr*nse of good t.nth to 
a seition P.I83 action rests on federal policy, 
not stale policy. .See Ik'cilopinenls in the 
Uiw .‘ii'chon l!lk:i nnd I rdi rnlisnt, 90 llarv.l.. 
Rev. Il3 f. 1211 II. 126 (1977); note 15 sn;>rn.

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I.ANDKUM V
( ill* as 57l> IV2d I

Korkwcll \v<rc (.'lit it li'il Id i<'ly ii|iDn provi- 
sions of llii'ir itiiuiual, even llmupli those 
|irovisions coMflicti'il with the |iosl-ini'iileiil 
iMtef|ii'etations ol stale law as |it'oiiomu'eil 
hy the ilisirict eoml. Thus, Iheir (.ojod lailh 
was an issue in I he lawsuit.

lI!h2(M Heeaiise pmoil faith is ilepenilent 
on inotivalion and eonduel of Ihe ihdeiidanL 
as eslahlished at Iria!, the validity of the 
defetise is ordinarily a i|ueslion for I In' jury, 
/’/erson i'. U:iy, sn/ira, dhili II.S. at ua7 5H,
87 Sd't. 1218; /)eu7o/u/icn(s i/i Ihe L:nv- 
Scrliiin /.'Kl :tnd Fi (Irnilisni, ‘dll llarv.l,. 
Rev. 1188, 12IIII n. 11‘d (11)77). .Moreover,
like oilier affirmative defenses originally 
]iredieated on tlu' coininon law,'’ Ihe hurili n 
is on the defendant lo prove eai h element 
of the did'ense to the jury's sal isl act iond'*
(Y. /’/er.s'on 1’, ll:iy. su/i/'a, 88(i I'.S. at f>ur) 
f)8, 87 S.Ct. 1218. The e.xisleuce of a poiod 
faith issue stands as a har to appellant s 
elaiin lo he entitleil to a judL'inenl n. o. v. 
on liahility, Aeeordinply, the Inal jud).u' 
correelly ovi'rruh'd plaintiff’s mol ions for a 
directi'd verdict and judtrmenl n. o.

IV. / I'le / ’n i/i;'ie(y o f ;i iVew Tri:t!.

In arppiinj' that Ihi' trial judyi erreil in 
denyin)^ her motion for a new trial, appel­
lant l.islie Landrum iciterales her exces­
sive force arpniment, eoncludinti that the 
jury verdict is contrary lo the iwiilence anil 
instructions. We have alreaily ruled that 
Ihe policemen ll.sed excessive lone as a 
matter of law. We still need to analy/.e 
a|ipellant’s ar^;umeid, however, in lipid ol 
the principal applicahle instructions.

Instruction No. 11 read as follows:

In connection with plaintiff’s lirst ,ind 
second causes of action, ihdenilaiils con­
tend that Iheir actions did not deinive the 
plaintiff’s decedent of his lederal consti­
tutional riphls in that I lu' delendants 
actions were lawfully pi -formed w ithin 
the .scojie of their aiilhorily as police ofli-

17. Ill Srl i r i i r r  e. /’ /lodes I Hi I '  .S, JliJ. 2 -tX -10. 

01 S n  His.i, -to I .1 it lid ( lUV I). ( li iel .Ills 
t i l e  IllMC.i'i aii.lt '  /i d Il ie  l i l s l o l l i . i l  l o o l s  and 

ii )| Hiici il • * il till * I' I' ti*- «•

. iMOA’i'S i:5 2 9
.120 (l !l7lt)

cers. In that repard Ihe defendants 
claim;

1) That at the tinm of the incident in 
ipieslion here, they helieved in pood faith 
that they had prohahle cause to attempt 
to arrest plaintiff’s decedent for a viola­
tion of Nebraska law; and

2) That the force used in atlem)itinp to 
make this arrest was reasonahly lu-ces- 
sary under tiu' <'ircumstances.

If Ihe defendants reasonahly helieved 
that they wei-e actinp hy authority of a 
valid state law in atlem|ilinp lo arrest 
[ilaintiff’s decedent and that they had 
prohahle cause as that term is explained 
to you in these instructions, to attempt to 
arrest the plaintiff’s decedent, and if the 
defendants acted in pood faith on the 
basis of these heliels, then the defend­
ants’ reasonahle lielief and pood faith 
would lawfully authorize the defendants 
to attempt to arrest plaintiff’s decedent.

If, in addition, the force utilized hy 
defendants in attemptinp to effectuate 
this arrest were reasonahly necessary, as 
ex|)lained elsewhere in these instructions, 
and were not excessive, then you must 
I'ind for Ihe defendants in connection 
with plaintiff’.; first and second causes of 
action.

If on the otlu'r hand you lind liy a 
preponderance of the evidence tlat de­
fendants did not have prohahle cause to 
allempi to arrest plainlilfs decedent or 
d' you find that defendants did have 
prohahle cause lo arrest plainlilfs ih'ce- 
dent hut used excessive and unreasonahle 
force in atlemidinp to make that ar--est, 
tlKTi you may find for phiinlilf on thi' 
first and second caiisi-s of action.

Instruction No. 11 ri'ad as follows;

In makinp an arrest, a police officer 
may use whatever force is reasonahly 
necessary. Reasonahle force is penerally 
that amount of lorce which an ordinary, 
prudent and intillipenl person with tlu'

IS. l i n e  itie o l tk e rs  neetleii lo  sliovv lh.it ' ‘ all 
nil ier me.IMS pit cai;l iirinp Koy l.aiulriini luitl) 
l.iiteil. " a j 11eic ii i i is i le  lo  ttie use ol ilcadty lo ic e  
.1, i iiiiliiii'. III llie 1 im.ili.i I 'olire manual

S !■ stiJ-M



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i :}:jo r>7G I'KDKItAI, I ;i '()Kli:i{. 2(1 SKKII S

knowlodfjc and in tlin siliialion of Inc 
police officer would have deemed neces 
sary under the circurnslances.

In determining whether or not the de­
fendants used only such force as was 
reasonably necessary in attempting to ar­
rest Roy Lee Landrum, you must hear in 
mind that the statutes of tin? Stalin of 
Nebraska in full force and effect at the 
time of the incident in (piestion provided 
in part that the use of deadly force in 
making an arrest is not justifiable unless:

1) The arrest is for a felony;
2) The person making the arrest is au­

thorized to act as a ])olice officer.
3) The person believes that the force 

used creates no substantial risk of injury 
to innocent bystanders; and

4) The |)erson believes that the crime 
for which the arrc'sL is made involved 
conduct including the use or threaleneil 
use of deadly force or that there e.xists a 
substantial risk that the person to be 
arrested will cause death or serious bodily 
harm if his apprehension is delayed.

Deadly force is defined as force which 
a person uses with the purpose of causing 
death or serious bodily harm or force 
which the person knows to create a sub­
stantial risk of death or serious bodily 
harm. Rurjiosely firing a firearm in the 
direction of another person or at a vehicle

19. I he (listni t eoiiit denied the oMieeis' le 
((nested iiistroctioiis in this renaid. .See note 
20 infra.

20. Two instructions requested by Ihe defend 
ants correctly embodied the elements ol a good 
faith defen.se.

The first, defendants’ propo.sed instruction 
l.t, was a segment of the .Standard Operating 
Procedure Manual of the (.finaha police depart 
men! ex|)laining when an officer is allowed to 
u.se his fireaiin while on duty:

You are instnu ted that On August 1.'3, 107.'), 
Ihe following |)olice dire< tive was effective 
with res|>ecl to Ihe use of firearms:

An olfii i-r may nse his li icaiin in Ihe |>ei 
b)imanc(‘ ol duly tor any ot Ihe lollowmg 
reasons:
fa) To deleiid hiinselt troin death t)r .seiions 
injury.
(b) lo  delend another ()erson from death oi 
serious injuiy

in which jmolher pcr.son is believed to be 
constitutes detidly force.

Instruction number 11 iijipcitr.s lo apply 
the g(g)d fiiith te.sl lo the issue of prohable 
cause lo arrest, hut as we have noted, the 
a|ipellant does not contest that the police 
officers were justified in attempting to ar­
rest the decedent, Roy lee  Landrum. The 
court, however, Liileil to instruct the jury 
Ihiit they must consider the good faith de- 
fen.se with reg.'ird lo Ihe |iolice officers’ use 
of unrea.sonable force.'’  The jury was sim­
ply informed in instruction 14 that “ [r]ea- 
sonable force is genendly that amount of 
force which an ordinary, iirudent and intel­
ligent ))crson with the knowledge and in the 
situation of the police officer would have 
deemed necesstirv under the circumstanc­
es.” -

1211 Thus, the Iritd court did not submit 
to the jury tiny good faith defense relating 
lo the iis<! of it firearm in conformity with 
the police maniud. In essence, the instruc­
tions called upon the jury to rule whether 
the use of dcitdly force by the police offi­
cers was or wiis not reasonable. Hy dis­
missing the action, the jury determined that 
police officers Moats and Rockwell exer­
cised “ retisonahle force” in shooting at the 
fleeing Roy Lee Landrum. Rut, as we have 
held in part III of Ihe ojiinion, such deadly 
force w:is excessive under the circumslanc-

( ( )  to (TIect tlic arrest or captiiie, or prevent 
the e.s< ;q)e ot rescue, of a person whom the 
ollicer knows or has reasonable grounds to 
believe has committed a felony, when all oth­
er means have failed.
(d) To kill a dangerous animal, or to kill an 
animal so badly injured that humanity re­
quires its removal from further suffering.
(e) to give an alarm or call for assistance 
when no other means is available.

Iho second, defendants' jiroiKised instruction 
16, ex[)laiiicd Ihe good faith defense as applied 
to the u.se of deadly force in terms similar to 
the three (larl test we outlined supra '.

You arc insirucleil that if Defendants or 
eillier of them in using deadly force in effect­
ing the airest of Plainlilf’s decisisi-d i(‘ason 
abU' believed deadly force to be necessary to 
( ffei 1 the ariesi ol Plainlilf's deceased and 
i( ‘asoiiably believed in good faith that lli(*y 
had Ihe aiitlioiity lo use deadly lorce in the 
ciia umstance then attendant, you must reach 
a verdi( 1 lot and on their beliall



IINI IKI) STAl'KS V. JOHNSON
< ill-as r>7(i 1.2(1 i :m  (i;t7« )

rii to |)c

to apply 
|)rol)al)lo 
ited, the 

lie |K)Iice 
ig to ar- 
tn. The 
the jury 
:'aith <ie- 
cers’ use 
■vas sim- 
i “ rr]e‘a- 
loiint of 
1(1 intel- 
i(i in the 
1(1 have 
mstanc-

.suhmit 
relating 
ity with 
instruc- 
vhether 
CO offi- 
By (lis- 
led that 
11 exer- 

at the 
-e have 
deadly 
iistanc-

Iirevent 
loui the 
imiis to 
all oth-

kill an 
iity re- 
Ifehiift. 
(Stance

1 uction 
ipplied 
lilar to

ints or 
etfect- 
eason 
-aiy to 
(i and 
t they 
in ttie 
reach

cs as ;i mailer of lau, <lii I he I heory upon 
which the case was siiliinilled In the jury, 
the jury venlici stands unsupported hy the 
evidence and is contrary to the inslructions

Accordingly, appellant is enlitlcd to a 
new trial. On retrial a|>pellees have the 
right 1(1 ti proper instruction on their good 
faith defense, and they hear the hiirdcn of 
proof on this issue."'

Reversed and remanded for a new triiil.

llNri'KO STAri'iS of America, \pp(llee,

V.

Douglas VV. JOHNSON, Appellant.

No. 7.S-I I t l l .

I'niled States Court of Appeals,
Kighth Circuit

Suliinitteil .lune 111, I'.'TS.

D e c i d e d  . l u n e  It), I'.lTl t̂.

Defenihint was convicted in tin- Cnited 
States District Court for the Kastern Dis- 
irict of Missouri, 11. Kenneth VVangelin, .1., 
of failing to make an income tax return and 
sitjijilviiig a false ami li'auduleiit :,tatcmcnt 
to his employ! r, and he appealed. 1 he 
Court of Appeals laid that there was no 
basis for defendant’s contentions that the 
information was insufficient.

Affirmed.

1. Internal Keveniie c^2M(i
Record failed to support conlention ol 

defendant, in prosecution for fading to 
make incoim.- lax return and su|iply ing f.dse 
and fraudulent slalemenl to employer, that 
there was variance hi-lweeii prool and in 
formation's charge lhat la- supidied false

21 . It(-C.iusi- ot "O l  ill .|io'-ilioo " I  I l ie  case. e 
(in nnl le.K ll .i|-| x l l . l l l l ' s  ( l.Mlll- " I  e l i n l  le ) ' (

and fraudul(-nl statement to i-mployer on or 
about dale of commenci-ment of his employ- 
,,,,-,,1. o,; n.s.C A. (1 RC l'-l.ht) §§ dUIll,

7211-").

2. Criminal l,aw c-='llti7(D
Although trial court, in ])rosecution of 

defendant for failing to make income tax 
return and supplying false and fraudulent 
statement to his emphiyer, should perhajis 
have corrected tyiiographical error in infor­
mation by amendment, failure to do so was 
not error where error, which related to date 
on which defendant allegedly sup|)lied false 
and fraudulent statement to employer, did 
not involve ,nalerial (-lenient of offense and 
defendant was not prejudiced. ’2(i U.S.C.A. 
(l.R.C. 19.0-1) 720-'); Fed.Rules Crim.Rroc.
rule 7(e), IS U.S.C.A.

David M. Nisscnholtz, St. Louis, Mo., for 

appellant.
Robert I). Kingsland, U.S. Atty., and 

.lames ,1. Barla, Asst U.S. Atty., St. Louis, 
Mo., for a|ipellee.

Hefor.- LAY, BRIUiri' and ROSS, Circuit 

.1 iidgcs.

him with supplying falsi- and fraudulent 
staleinents on September 10, 1974, and

ccilam oilii-i msliiiciions ,;iv(-i, by Ihe (lis- 

11 II 1 Cl nil 1

I :

! i

1

t

I
i

f i-;r c u r i a m . i.

Douglas W. .lohnson appeals from his
conviction on one count of failing l> make a 7

an inconu- tax return in violation of 2() V'
U.S.C. § 7203, and two counts of supplying
a false and fj-aiidulenl statement to his -■ f '
emplover, in violation of 20 U.S.C-. § (205. ? '

Finding no merit in either of the grounds r | ‘
as.serled by Johnson for reversal of his con­ -i'
vict ion, we affirm. -li'

111 Johnson contends that counts 11 and
-

f |
It111 of the information charged him with

supplying a false and fraudulent statement 1t*
. i '

to his employer on or (diout the date of ■f
con,menc(-nient of his i-mploymerit, whereas 4
the evidence proved a dilferent date. He
misconstrues Ihe information, ll charged f