Hayes v. Memphis Police Department Court Opinion

    4

Dora IIAYi:S, I’laiiiriff-Apiullant,

V.

The MKMI’IIIS 1*()U( K DI'-l’AlM MION 1 
et al., Defeiidants-Appellees.

HAYKS V. MKMIMIIS l*OU{ K DKPT. .{f)?
(  Me as 571 I ,7 il 357 ( 1978)

2. Municipal Corporations
The law expects police oriicers lo take 

reasonalile ami effecliu' precaulions for 
protection ol' their own lives, ami no law 
reipiires them to allow an assailant to fire 
the first shot.

No. 7(V-l(i20.

United Stales Court of Appeals, 
Sixth Circuit.

Arf^ned Oct. 12, 197<). 
Decided March 12, 197S.

A nonjury civil daina{res action, alleg­
ing violations of civil rights statutes, w:is 
brought hj’ decedent’s widow :igainst city 
police department and officers thereof, 
stemming from a fatal shooting. The Unit­
ed Stales District Court for the Wi'stern 
District of Tennessee, at Memphis, Harry 
W. Wellford, .1., entered judgment dismiss­
ing the action, and |)laintiff appealeil. 'I’hr' 
Court of Ajipeals held that since the district 
judge did not make specific findings of fact 
on the directly disputed evidence pertaining 
to whether or not defendant jiolice officers 
ever identified themselves as such or 
whether the deceased ever |)ointed or began 
to raise his rifle toward tlu! officers, and 
since the district judge assumed that there 
was some unspecified fault with the actions 
of the officer who fireil the latal shot, the 
judgment dismissing the action would be 
vacated and the ca.se remanded for addi­
tional findings of fad  as lo whether the 
officers ever identified tln.’mselves as such 
l)cfore the shooting occurred, and whether 
the deceased ever aimed his rifle at the 
officers or began to raist' the mu/.'/.le in 
their direction.

Vacated and remanded.
Wcii'k. Uirciiil .ludge, filed a dissimting

opir

1. Civil Rights c=3i;[.l0
Commission of a misdemeanor by the 

decedent is no defense lo a chargr; of willful 
killing in violation of the due process clause. 
U.S.C.A.Const. Amends. r>, 14.

2. Municipal Corporations <cs=lHS
No law permits the automatic use of 

deadly force by a police officer solely be­
cause a citizen is found committing a misde­
meanor, even as dangerous a one as posses­
sion of a rifle on a |)ublic street.

4. Federal Courts c=392!t
Since the district judge, in a nonjury 

civil damages action idleging violations of 
civil rights stemming from a fatal shooting, 
did not make specific findings of fact on the 
disputed evidence ])erlaining to whether or 
not defendant police officers ever identified 
themselves as such or whether the deceiused 
ever pointed or began lo raise his rifle 
toward the officers, ami since the district 
judge assumeil that there was some unspec­
ified fault with the actions of the officer 
wdio fired the fatal shot, the judgment dis­
missing the action would be vacated and 
the case remanded for additiomd findings 
of fact as to whether the officers ever iden­
tified themselves as such before the shoot­
ing occurred, and whether the deceased 
ever aimed his rifle at the ollicers or began 
to raise the muz/.h' in their dirirtion. 42 
U.S.U.A. 19S1, 19S2, 19S.9.

C. Philip Arnold, Ratiu'r, Sugarmon, Lu­
cas, S;dky & Henderson, .Memphis, Tenn., 
for |)laintiff-ap|)ellant.

Art .1. Shea, Charles V. Holmes, Asst. 
City Ally., Memphis, Tet)ii., for defendants- 
appellees.

Before WUK'K, UDWARDS and PUCK, 
Circuit Judges.

ORDKR
11-11 ■ Ml ns'eipl and consideration of

the reco on iipiieal in this nonjury civil

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(Iiimaflfc.s action allcjj;ing violation oi civil 
ri^lits under -12 U.S.C. <jt} 1981, 198:i, 198.5, 
etc. (1970), with jurisdiction founded upon 
28 U.S.C. §§ 1381. 1343, etc. (1970), which 
was tried before a District .ludffc in the 
Western District of Tennes.see; and

Noting? that the District .ludf^e has held 
that |)laintiff-appellant’s deceasesi husband 
was guilty of a tni.sdemeanor under Tennes­
see law by having a .22 rifle in his hands 
while being drunk on a public street at 2:30 
a.ni. on the day in (piestion; and that the 
|)olice officer, K. S. Rooker, who shot him to 
deatli was justified in doing so as a matter 
of S t ' If-defense; and

Further noting that when the two police 
officers approached deceased and drew 
their service revolvers, it is undisputed that 
deceased was standing in tlu; street witli his 
i)ack to the officers and the rifle poinUal 
toward his feet, and that when the officers 
called on him to dro|) the rifle, that without 
doing so he began to turn toward them; 
and

Further noting that what is charged here 
is willful killing, in violation of the due 
|)rocess clause of the United States (koisti- 
tution, to which charge the commission of a 
misdemeanor is, of course, no defense; and 
that the deceased husband was black and 
that both the olficer wdio killed him and his 
partner were white and that api)ellant also 
claims the killing was racially motivated, in 
violation of the eipial protection clause; 
and

Further recognizing that the law e.xpects 
police officers to take reasonable and effec­
tive precautions for protection of their own 
lives and that no law re(piires them to allow 
an assailant to fire the first shot, but that 
in addition, no law permits the automatic 
u.se of deadly force solely because a citizen, 
white or black, is found committing ;i mis­
demeanor even as dangerous a one as pos- 
se.ssion of a rifle on a public street; and

Further noting that the District .Judge 
did not make specific findings of fact on the 
directly disputed evidence in this record 
pertaining to whether or not the police offi­
cers ever identified themselves as such or 
whether the deceased ever jiointed or began

to raise the .22 rifle tow.ard the two police 
officers and that the District .fudge a.s- 
sumed that there was some unsiKicified 
fault with Rooker's actions in this case; anil

Further noting that undisputed evidence 
shows that this is the third jierson in six 
years (2 black and 1 white) wtiom defend­
ant K. S. Rooker has killed in police action, 
and the fifth person in si.\ years at whom 
he has fired (4 bl.ick and 1 white).

Now, therefore, tin- judgment of the Dis­
trict Court dismissing this action is vacated 
and the case is remanded to the District 
Court for additional findings of fact (based 
solely upon the pre.sent record) as to wheth­
er the police officers ever identified them­
selves as such before Officer Rooker fired, 
and whether deceased ever aimeil the .22 
rifle at the police officers or began to raise 
the muzzle in their direction.

VVKICK, Circuit .fudge, di.ssenting.
In my opinion there is no need to remand 

this case to the District Court limited to 
additional findings on .self-defense. The 
Memorandum t)|)inion of the District 
.Judge, consisting of nine jiages, finds that 
the deci;dent, Albert Hayes, had been drink­
ing to excess witli friends in a neighborhood 
tavern located in a high crime area, from 
10:110 p. m. on a Saturday evening until 2:00 
a. rn. on Sunday morning, when the tavern 
was about to close, and that Hayes was 
intoxicated. He and his friends left the 
tavern and proceeded to cross a street when 
Hayes was nearly struck by an automobile. 
Hayes engaged in a loud altercation with 
the driver of the automobile, who had 
stojiped his car. Hayes, who became angry, 
proceeded sudderdy to his nearby car in the 
jiarking lot of the tavern. He ])rocured 
from the trunk of his car a loaded automat­
ic .22 caliber rifle, and returned to the jilace 
where he had the altercation with the driv­
er of the car, but the car had pulled away 
as he arrived at the scene.

Obviously Hayes’ pursuit of the driver of 
the car, with a loaded automatic rifle, was 
for no lawful |uirpose.

Hayes 
with gui 
halt and 
drop his 
with tin 
One of 
whicli p: 
at the fi 
area, res

The (' 
the offii 
in his aci 
that of 
turned ti 
jHist ure 
death or 
ate rail) 
findings

The n 
decision 
O/i/o, 3 
L.E(1.2d 
phis 
1977); ; 
Cir. 197 
S.Ct. 92 
iia/n V. 

Tenn.Ri
In h 

that ll 
back bi 
true as 
medical

Alth. 
was on 
in the I 
his fail 
officer 
have Ir

The 
even b 
presen 
to prev 
in th( 
protect

As I 
offerei 
raciall

Wit 
der of



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1

Mayes eiit'oimliTeil Iwo |iolic(men wlm, 
vviUi mills ilrawii, sliouted al liiiii twice to 
hall and to ili'o|) his >̂ nn, Hayes did not 
drop his t îm lull turned toward the ollicers 
with tile aiiloinalic rifle still in his hands. 
One of Ihe officers fired the fatal shot 
which passed Ihroiif^h Hayes’ hd’t shoulder 
al Ihe fronl and into his chest and s|)ine 
area, resulling in his death almost instantly.

The Court in its finding coiK'luded that 
the officer who fired the shot was justified 
in his actions “in defense of his own life and 
that of his fellow officer when Hayes 
turned toward them with a loaded rifle in a 
[wsture which in a split second could mean 
death or serious injury to others in immedi­
ate ranf^e." (App. 25.) What additional 
finding should he reipiired?

The rulinp; of the Court conformed to the 
decision of the Supreme Court in Terry c. 
Ohio, :592 U.S. 1, 2lt, 88 S.Cl. IStK, 20 
L.h:d.2d 889 (10()8). See a/.so VTi7e.\ v. Mem­
phis I'olicv Dei>l., 548 F.2d 1247 (tSth ( ir. 
1977); Beech v. Melnncon, 405 I*'.2d 425 (tith 
Cir. 1972), cert, i/eii/ei/, 409 U.S. 1114, '.12 
S.Cl. 927, 24 I,.K(1.2d 090 (1972); (hwnin/r- 
hiitn V. Hlliiifylon. 222 F'.Su|ip. 1072 (WM). 
Tenn.1971).

In her complaint plaintiff had allef^ed 
that the officer shot her hushand in the 
back but this allemdion was false and un­
true as was shown by the testimony of tiu' 
medical examiner.

Althoutjh the possession alone ol the rille 
was only a misdemeanor, its usi' by Hayes 
in the pursuit of the driver of the car, aiul 
his failuri' to obey the lawlul orders id the 
officers to halt and drop the pun, ajipear to 
have been more than a mi.sdemeanor.

The two officers had the ripht to arrest 
even for a ini.sdemeiuior committed in their 
presence, and certainly they had the right 
to prevent ii felony from being committed 
in their pre.sence, and indeed the right to 
protect their own lives.

As Ihe Court found, there was no proof 
offered that the actions of tlu' officers were 
racially motivated.

With respect to the statement in the Or­
der of the majority that one of the officers

I’Oin UK COUNTY ( HAPTKR OF the IZ- 
AAK WAI/roN UKAtiUU OF AMKRI- 
CA, INC., Save the Dunes Council, Inc., 
.Ann Sims and Herbert I‘. Read, I’eli- 
lioners.

Douglas COSTI.K, .Administrator, United
States environmental I’rotection 

Agency, Respondent,

Northern Indiana Public Service 
Company, Intervenor.

Nos. 7(l-2()98 and 77-12f.2.

Uniteil Stales Court of Appeals, 
.Seventh Circuit.

.Argued Oct. 27, 1977.
Decided .Ian. 21), 1978.

Rehearing Denied .March 21), 1978.

Appeal seeking review of decision of 
Ihe Administrator of the Fnvironmental
Protection .Agency that provision of River 
anil Harbor Act that slate of Indiana, [irior 
to construction of harbor project, shall fur­
nish assurance satisfactory to Secretary of 
.Army that water and air pollution .sources 
will be controlled to maximum extent feasi­
ble to minimize adverse effects on public 
recreational areas in general vicinity of
Rums llarboi- was not applicable as to pol­
lutant discharge elimination system permit 
for genera' ig station adjacent to Hums 
Harbor w; cousolidaled with an ap|ieal