Pruitt v. Montgomery Brief for Appellee

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

NO. 84-7571

DARRYL PRUITT,

Plaintiff-Appellee,
vs.

CITY OF MONTGOMERY, et al..

Defendants-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 
(CIVIL ACTION NO. 83-T-903-N)

fi£l££ Q£ APPELLEE

IRA A. BURNIM 
DENNIS C. SWEET 
MORRIS S. DEES

1001 South Hull St. 
Post Office Box 2087 
Montgomery, AL 36102 
(205) 264-0286

ATTORNEYS FOR APPELLEE



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

NO. 84-7571

DARRYL PRUITT,
Plaintiff-Appellee,

vs.
CITY OF MONTGOMERY, et al.,

Defendants-Appellants

ON APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE MIDDLE DISTRICT OF ALABAMA 

NORTHERN DIVISION 
(CIVIL ACTION NO. 83-T-903-N)

BRIEF APPELLEE

IRA A. BURNIM 
DENNIS C. SWEET 
MORRIS S. DEES

1001 South Hull St. 
Post Office Box 2087 
Montgomery, AL 36102 
(205) 264-0286

ATTORNEYS FOR APPELLEE



6.
Alabama

CERTIFICATE QE INTERESTED persons 
The following have an interest in the outcome of this case:
1. Darryl Pruitt.
2. City of Montgomery.
3. U. S. District Judge Myron H. Thompson.
4i City of Montgomery,
5. Emory Folmar, Mayor, City of Montgomery, Alabama.

Chief Charles E. Swindall, Chief of Police, Montgomery,

7. Lester Kidd.
8. Robert C. Black, P. 0. Box 116, Montgomery, Alabama, 

counsel for appellant.

9. N. Gunter Guy, Jr., City Attorney, Montgomery, Alabama, 
counsel for appellant.

10. W. Inge Hill, James J. Carter, Ralph A. Franco, T. Bowen 
Hill, III, Harry Cole, Robert C. Black, William I. Hill, ll, John 
M. Milling, Jr., W. Inge Hill, Jr., H. E. Nix, Jr., Gerald W. 
Hartley, Randall C. Morgan, Robert W. Bradford, Jr., David E. 
Allred, James H. Anderson, Laura L. Crum and Leah M. Harper, 
attorneys at law.

11. Ira A. Burnim, Dennis C. Sweet, and Morris Dees, P. 0. 
Box 2087, Montgomery, Alabama, counsel for appellee.

12. Dennis N. Balske and Deborah Ellis, attorneys at law.

IRA A. BURNIM 
Attorney for Appellee



STATEMENT REGARDING PREFERENCE
This case is not entitled to preference in processing and 

disposition.

STATEMENT REGARDING ORAL ARGUMENT
The plaintiff-appellee desires oral argument. Appellee 

believes that oral argument will aid the court in its 
consideration of the instant appeal. In addition, plaintiff 
believes that the constitutional question raised in this appeal 
merits oral argument.

STATEMENT JURISDICTION
The judgment appealed from is a final judgment against the 

City of Montgomery entered pursuant to Rule 54 of the Federal 
Rules of Civil Procedure. The Court has jurisdiction of the 
appeal pursuant to 28 U.S.C. §1291.

The district court's jurisdiction is based on 28 U.S.C. 
§§1331 and 1343.

11



CERTIFICATE OF INTERESTED PERSONS ----------------------------- i
STATEMENT REGARDING PREFERENCE ------------------------------  ii
STATEMENT REGARDING ORAL ARGUMENT ----------------------------  ii
STATEMENT OF JURISDICTION ------------------------------------  ii
TABLE OF CONTENTS------------------------------------------- iii
TABLE OF CITATIONS------------------------------------------- iv
STATEMENT OF THE ISSUES----------------------------------------1
STATEMENT OF THE CASE------------------------------------------2
SUMMARY OF ARGUMENT-------------------------------------------12
ARGUMENT------------------------------------------------------14

I. THE CITY OF MONTGOMERY DEADLY FORCE
POLICY IS UNCONSTITUTIONAL --------------------------  14
A. The City of Montgomery's 

Deadly Force Policy Offends The
The Due Process Clause--------------------------- 16

B, The City of Montgomery's 
Deadly Force Policy Offends
The Equal Protection Clause ---------------------  26

II. THE COURT DID NO ERR IN GRANTING 
SUMMARY JUDGMENT AGAINST THE CITY OF
MONTGOMERY----------------------------------------- 2 9
A. There is No Genuine Issue of Fact 

Concerning Whether Kidd Would Have 
Been Permitted to Shoot Pruitt Under
a Constitutional Deadly Force Policy -------------  29

B. There is No Genuine Issue of Fact 
Concerning Whether Kidd Violated 
Alabama Law by Using Deadly Force 
When Other Means Were Available to
Capture Pruitt ---------------------------------  38

CONCLUSION----------------------------------------------------42
CERTIFICATE OF SERVICE --------------------------------------  43

table Q£ contents

111



CiLSSS.:

CltY Ql' Eirminaham ^  Thompson.
404 So.2d 589 (Ala. 1981)---------------------------14^ 38

CIg.Ygland Boar<3 q1 Education iL-. LaFleur.
414 U.S. 632 (1974) -------------------------------------28

Georgia.
433 U.S. 584 (1977) --------------------------------------

G^cngr iL.. Memphis Police Deot. .
710 F.2d 240 (6th Cir. 1983), prob.
■IM-Fis■ and cert, granted.
-- U.S.---, 104 S.Ct. 1589 (1984) -----------14, 30, 31, 36

fillmgrg 2L.. City o£ Atlanta .
737 F.2d 894 (11th Cir.),
£ghaapipg ^  banc ordered.
Nos. 82-8457, 82-8760 (Oct. 1, 1984) -------------------- 42

Grggg Y.,. Georgia.
428 U.S. 153 (1976) ------------------------------------- 27

iI^gQbg Yj. City of witchita .
531 F.Supp. 129 (D. Kan. 1982) -------------------------- 24

Mattis ^  Schnarr.
547 F.2d 1007 (8th Cir. 1976) (en banc), 
yacate<3 as. mPQt gub nom. Ashcroft y. Mattis.
431 U.S. 171 (1977) ---------------- 12, 14, 17, 30, 31, 36

£.Ptfie Cartwright.
114 Ky. 103 , 70 S.W. 297 (1902) ------------------------- 26

Elpaldj. Y^ Yeager.
384 U.S. 305 (1966) ------------------------------------- 26

Efig Y^ Wade.
410 U.S. 113 (1973) ------------------------------------- 28

Saul }Lm. Hutto.
304 F.Supp. 124 (E.D. La. 1969) ------------------------- 24

Skinner y.,. Oklahoma.
316 U.S. 353 (1942) ------------------------------------- 28

Suell ŷ . Derricott.
161 Ala. 259, 49 So. 895 (1909) ----------------  21, 29, 38

Tennessee y. Garner.
Nos. 83-1035, 83-1070 (U.S. argued
Oct. 30, 1984) ---------------------------------------------

iy

TABLE Q£ CITATIONS



Unlan indemnity qq_̂ y_̂  Webster.
218 Ala. 468, 118 So. 794 (1928) ---------------- 21, 29 38

Williams Kelly. '
624 F.2d 695 (5th Cir. 1980) ---------------------------  17

Xj. JUPkins and Associates. Inc. v. u. s.
Industries. Inc.. 736 F.2d 656
(11th Cir. 1984) -----------------------------------------

Statutes:
28 U.S.C. §1291 ----------------------------------------------- 4
Ala. Code §13A-6-2 (Supp. 1984) ------------------------------  9
Ala. Code S13A-3-27 (Supp. 1984) ----------------- 26, 29, 38, 41
Ala. Code §13A-6-4 (Supp. 1984) --------------------------I3, 27
Ala. Code §13A-6-22 (Supp. 1984) -----------------------------  28
Ala. Code §13A-6-24 (Supp. 1984) -----------------------------  27
Ala. Code §13A-6-41 (Supp. 1984) -----------------------------  28
Ala. Code §13A-6-67 (Supp. 1984) -----------------------------  28
Ala. Code §13A-7^25 (Supp. 1984) -----------------------------  I7
Ala. Code §13A-8-4(a) (Supp. 1984) --------------------------- 27
Ala. Code §13A-8-4(e) (Supp. 1984) -------------------I3, 17^ 27
Ala. Code §13A-8-ll (Supp. 1984) -----------------------------  27
Ala. Code S13A-8-22 (Supp. 1984) -----------------------------  27
Ala. Code §13A-9-14 (Supp. 1984) -----------------------------  27
Ala. Code §13A-ll-4 (Supp. 1984) ------------------------- 13^ 27
Ala. Code §13A-ll-33 (Supp. 1984) ---------------------------  27
Ala. Code §13A-ll-56 (Supp. 1984) ------------------------I3, 28
Ala. Code §13A-13-1 (Supp. 1984) -----------------------------  27

Other Authorities:
Alabama Dept, of Public Safety, Order

No, 4. (Jan. 1, 1981) ----------------------------------- 25



Birmingham Police Dept., General
Qr<jer 1-78 (July l , 1980) ------------------------------- 25

4 W. Blackstone, Commentaries (1800) ------------------------- 16
Boutwell, U££ Deadly Force ts Arrest 

& Fleeing Felon. 46 FBI Law
Enforcement Bull. 27 (1977) ------------------------- 16, 27

A. Cohen, I've Killed That Man
IQ^QOO Times. 3 Police 17 (1980) ----------------------- 25

Comment, Deadly Force tQ Arrest; Triggering 
Constitutional Review. 11 Harv.Civ.R.-
Civ.Lib.L.Rev. 361 (1976) ----------------------  12, 15, 26

ZiBSl RfiPQCt National Commission
fin Reform fi£ Federal Criminal
Laws §607 (1971) ---------------------------------------- 19

J. Fyfe, Administrative Interventions
fin Pglicg Shooting Discretion;
An Empirical Examination.
J.Crim.Just. 309 (1979) ----------------------------- 12, 20

Gray, Developments in the Law of
Protection. 82 Harv.L.Rev.

1065 (1969) --------------------------------------------- 29
K. Matulia, A Balance fil Forces;

A Report in the International 
Association q£ Chiefs n£ Police
(National Institute of Justice 1982) -----------  13, 15, 25

C. Milton, Police Use of Deadly
Force (Police Fd. 1977) ------------------------  13 , 15, 17

Mobile Police Dept., Procedural General
Older #14-B (Sept. 6 , 1982) ----------------------------- 25

Model Penal Code §3.07 (Proposed
Official Draft 1962) ---------------------------- 19, 30, 36

Model Penal Code §3.07 Comment
(Tent. Draft #8 1958) --------------  13, 16, 17, 25, 27, 31

6 Moore's Federal Practice
§56.02[10] (2d ed. 1983) --------------------------------37

6 Moore's Federal Pracatice
§56.15[3] (2d ed. 1983) ---------------------------------37

Pierson, Thn Right tfi Kill in Making
Axreetf 28 Mich.L.Rev. 957 (1930) ------------------- 16, 27

VI



President's Commission on Law Enforcement 
and the Admnistration of Justice,

Force Report;
T11£ Police (1967) -------------------------------------- -

Restatement ^  Torts §131,
Comments (1934) ----------------------------------------  26

Survey of Developments in Alabama 
Lay.; 1980-1981 . 33 Ala.L.Rev.
613 (1982) ---------------------------------------------  3Q

T. Taylor, Studies in
£.PnstitUtiQPal interpretation (1969) ------------------- 16

Vll



STATEMENT OF THE ISSUES

I.
WHETHER THE CITY OF MONTGOMERY'S DEADLY 
FORCE POLICY IS UNCONSTITUTIONAL?

A. Whether The City of Montgomery's 
Deadly Force Policy Offends The 
The Due Process Clause?

B. Whether The City of Montgomery's 
Deadly Force Policy Offends
The Equal Protection Clause?

II.
WHETHER THE COURT ERRED IN GRANTING 
SUMMARY JUDGMENT AGAINST THE CITY OF 
MONTGOMERY?

A. Is There A Genuine Issue of 
Fact Concerning Whether Kidd 
Would Have Been Permitted
to Shoot Pruitt Under a Consti­
tutional Deadly Force Policy?

B. Is There a Genuine Issue of 
Fact Concerning Whether Kidd 
Violated Alabama Law by Using 
Deadly Force When Other Means 
Were Available to Capture 
Pruitt?



STATEMENT Q£ Ifl£ CASE
Proceedings Below;

On August 26, 1983, plaintiff Darryl Pruitt filed in the 
U.S. District Court for the Middle District of Alabama a 
complaint for damages alleging that he had been shot and 
partially paralyzed by a City of Montgomery police officer in 
violation of federal and state law. (R. 11-17). The complaint 
named as defendants the following parties: former police officer 
Lester Kidd, the officer who had fired at plaintiff while 
attempting to arrest him; the City of Montgomery; and the mayor 
and police chief of the City. (id.). Plaintiff later voluntarily 
dismissed both the mayor and the police chief. (R. 55-57). 
Plaintiff claimed in the suit that the City of Montgomery's 
policy governing the use of deadly force, pursuant to which Kidd 
shot plaintiff, is unconstitutional because it permits officers 
to shoot persons suspected of property crime and other nonviolent 
offenses who present no imminent threat to the police or to the 
community. In the alternative, plaintiff claimed that former 
police officer Kidd had shot plaintiff in violation of Alabama 
law, which allows a police officer to use deadly force to effect 
an arrest only as a last resort. (R. 74-75).

Plaintiff moved for partial summary judgment against the 
City of Montgomery on May 17 , 1984. (R. 64-72). In his motion, 
plaintiff argued that when former officer Kidd shot plaintiff, a 
property crime suspect, he was acting pursuant to the City of 
Montgomery's unconstitutional policy governing the use of deadly 
force and that the City is therefore liable to respondent as a 
matter of law. (id,.) In its response to the motion, the City



conceded that officer Kidd had acted pursuant to City policy, but 
denied that the policy was unconstitutional. (R. 85-89). The City 
also argued that officer Kidd feared for his life when he shot 
Pruitt and that his conduct was therefore lawful even if the 
policy pursuant to which he acted violates federal law. (Id.)

The district court granted plaintiff's motion for summary
judgment on June 12, 1984.1 (R. 90-95). The court held that it is
unconstitutional for police officers to use deadly force to
arrest a suspected felon whom the police do not reasonably
believe presents an imminent threat to the police or to the
community. The court wrote that

the use of deadly force to stop a fleeing 
or escaping felon const!tute[s] a civil 
rights violation actionable under §1983 
'unless the [law enforcement] official has 
good reason to believe that the use of 
such force is necessary to prevent 
imminent, or at least a substantial 
likelihood of, death or great bodily 
injury.' [citina Hopper. 53 2
F.Supp. 198, 201 (M.D. Ala. 1981)].

(R.. 92). Furthermore, the court found as a matter of 
undisputed fact that

Officer Kidd's testimony about the 
shooting is clear and straightforward and 
permits only one reasonable conclusion:
Kidd shot Pruitt to prevent him from 
escaping arrest, and not because he posed 
a danger of death or bodily injury to 
anyone.

(R..93). Thus, the court held, "Kidd's use of deadly force ...

In responding to plaintiff's motion, the City moved for 
summary judgment as well. (R. 85-89). The court denied the City's
motion when it entered a partial summary judgment on plaintiff's behalf. (R. 90-95). -r j  ̂ t'



did not meet [constitutional] standard[s] and, therefore, 
violated Pruitt's civil rights." (R. 93). The court concluded 
that, insofar as Pruitt's claim against the City was concerned, 
only the issue of damages remained to be tried. (R. 94). At a 
pretrial conference held on June 13 , 1984 (R. 95), the court 
scheduled a trial on damages. 2 (r  ̂95-97. ipj.̂ 4)̂

After the entry of summary judgment, the City of Montgomery 
asked the district court to certify for interlocutory appeal, 
pursuant to 28 U.S.C. §1292(b), the question of the lawfulness of 
its deadly force policy. The court declined to do so (R. 173- 
174). On July 27, 1984, the parties tried before a jury the issue 
of damages (R. 6), and the jury returned a verdict of $100,000 in 
compensatory damages (R. 211). Pursuant to Rule 54,
Fed.R.Civ.P., the court entered a final judgment against the City 
on the basis of the jury's verdict. (R. 212).

On August 23, 1984, the City appealed. (R. 224).  ̂ Plaintiff 
moved for a stay of proceedings on appeal pending the decision of

The City complains in its brief that the court "severed" 
the claim upon which the court's summary judgment was based 
(referred to by the parties as the "Avler claim") "from the other 
aspects of the case" against the City. City's Brief at 16. 
Strictly speaking, the court did not "sever" plaintiff's other 
claims against the City; it declined to try these claims because 
they were alternative to the claim upon which judgment had 
already been granted. (Tr. 6-8). Because plaintiff could obtain 
only one recovery from the City, the court decided not to hold a
lengthy trial (Tr. 19) on plaintiff's alternative claims. (Tr. 6- o) .

2
The City's attorneys filed the instant appeal on behalf of 

former officer Kidd as well as the City. (R. 224). No final
judgment has been entered against Kidd, and thus the Court lacks 
jurisdiction to hear Kidd's appeal. 28 U.S.C. §1291. Accordingly, 
plaintiff in this brief will discuss only the City's appeal.



the Supreme Court in lennessee Garner. Nos. 83-1035, 83-1070 
(U.S. argued Oct. 30, 1984). The Court denied the request for a 
stay. The State of Alabama and its Attorney General, Charles A. 
Graddick, moved to intervene in the appeal, pursuant to 28 
U.S.C. §2403, and their motion was granted on October 9, 1984. 
The State and Attorney General Graddick subsequently filed in the 
U.S. Supreme Court a petition for a writ of certiorari before 
judgment in the instant court. 53 U.S.L.W. 3405 (U.S. Nov. 27, 
1984). That petition was denied on January 14, 1985.

Statement t]i£ Facts

On the evening of September 1, 1982, Darryl Pruitt, an 18- 
year-old black man, and four of his friends, two young men and 
two young women, walked to a commercial district on West Fairview 
Avenue in Montgomery, Alabama. (P. 6, 14-15) .4 He and one of the 
young women, Sharon Brown, went together to a wooded area behind 
a store located at 614 West Fairview Avenue, where they engaged 
in sexual intercourse. (P. 18; K. 15). Pruitt believed that 
Sharon, who was already the mother of a young child, was 17; he 
later heard that she was "something like 15, 16." (P. 16).

their sexual encounter and while Darryl was leaving the 
area behind 614 W. Fairview Avenue, a patrol car arrived on the 
scene. (P. 19). Apparently, a citizen who heard noises behind the 
store had reported to the police a possible burglary in progress.

... This statement of facts relies primarily on the 
depositions of plaintiff and former officer Kidd. Citations to

deposition are in the form of p.__. Citations toKidd's deposition are in the form of K.__.



(PI. Ex. 6; R. 77).5 The citizen had told the police that three 
young black males were involved. (K. 16).

There were two officers in the patrol car. (K. 15). As their 
car approached the scene, the senior officer left off the junior 
police officer, Lester Kidd, on a street that intersects West 
Fairview about two doors down from the store at number 614. (K. 
15-16, 29, 37). Kidd, who had just completed his period of
probationary employment with the Montgomery police department, 
was armed with a billy club and a shotgun, among other 
weapons. (K. 9, 51, 83). He walked through the wooded area behind 
the store toward the rear of 614 West Fairview, while the senior 
officer pulled around to the front of the building. (K. 15- 17, 
51). Kidd carried a walkie-talkie and was in continuous radio 
contact with both his senior officer and other patrol cars that 
were converging on the scene in order to secure the area in 
accordance with standard practice. (K. 18, 21-23, 27-28, 30-31).

According to former officer Kidd's deposition, he was 
familiar with the wooded area behind 614 West Fairview. (K. 17). 
He walked towards the store, checking his path from time to time 
with a flashlight. (K. 17-19, 32). As he approached the back of 
the store, his senior officer reported to him on the walkie- 
talkie that two suspects were in custody in front of the 
building. (K. 17). Kidd walked two or three steps further and 
then saw Pruitt. (K. 18-19, 33). Kidd was then very close to 

(K. 33). Kidd testified that he believed Darryl was the

, Citations in the form of Pl. Ex.__ are to the exhibits tothe depositions taken below.



third of the three youths suspected of burglarizing the store. 
(K. 19). To Kidd, Darryl appeared to be a "young black male... in 
his teens." (K. 35). He saw that Darryl was dressed in a light- 
colored T-shirt, dark trousers, and tennis shoes, and he observed 
no weapons in Pruitt's possession. (K. 33-34, 38; PI. Ex. 1).

The interveners, the State of Alabama and Attorney General
Graddick, claim that as Kidd approached the store, "Pruitt
jumped out from behind a bush and charged the officer [Kidd]."
Interveners' Brief, Statement of Facts at 8 (emphasis added). The
record does not support their claim. As Kidd stated in his
deposition, Pruitt did not "charge" Kidd. Instead, according to
Kidd, Pruitt "came out of [some] bushes" (K. 33), "took about
three steps" toward Kidd, and then "veered off to the right" and
ran "like he was O.J. Simpson" (K. 39). Kidd explained that:

I guess he was waiting for me to walk by 
and then he was going to be gone. But I 
must have walked straight into his path. I 
boxed him in.

Q. He had to go around you to get out?
A. (Witness nods head in the 

affirmative.)
(K. 41-42).

Just as he saw Pruitt, Kidd heard a second patrol car pull 
up in front of the store. (K. 24). Within seconds, he heard 
another patrol car arrive at the same location. (K. 25). Kidd did 
not know whether other patrol cars had arrived on the streets 
bordering the area behind the store, including the street on to 
which he had earlier been left off. (K. 31-32). However, Kidd 
knew that in accordance with standard procedure patrol cars would 
be converging on these neighboring streets. (K. 18, 21).



when he first saw Pruitt, Kidd raised his shotgun to a high 
port position. (K. 19). Then as Pruitt was running away from him, 
he fired two shotgun blasts:

At this time I was thinking this was the 
third subject that was involved in the 
burglary coming from the back. I knew the 
subject had to have been looking at me 
because I didn't hear anything until I 
more or less ran up on this bush. When I 
got too close, he jumped out.

... the subject came at me and veered 
off to the right. I said, "Halt, police."
The subject kept running. I yelled, "Halt, 
police" again ... Then I yelled a third 
time and the subject went down into a 
ditch. And when he came up out of the 
ditch I had to make a decision whether I 
was going to stop this fleeing felon or 
what I was going to do.

... And I shot the first round and the 
subject kept moving, and I shot the second 
round and ... I heard the subject yell and 
he fell.

(K. 19-20). Pruitt was some distance from Kidd when Kidd shot 
him. {M.i K. 21, 39, 44).

Kidd did not use his walkie-talkie to inform his senior 
o^^ficer, or the other patrol cars present or converging on the 
scene, that he had spotted Darryl (K. 34), despite the fact that 
he had been trained to arrest fleeing suspects in such 
circumstances by relying on other units to cut off the suspect's 
avenues of escape (K. 21-24, 27-28, 42-44, 56-58). He did not see 
Sharon Brown, Pruitt's sexual partner, before he shot. (K. 62).

Pruitt's body was raked by buckshot. (P. 20, 38-39; Tr. 111- 
112). He was treated on the scene by emergency medical 
technicians and then taken to a hospital, where he remained for 
more than six weeks. (K. 22, 25-26; Tr. 75). It was more than a



year before he was able to walk again (P. 27), a feat he finally 
accomplished after being fitted with a permanent leg brace. (Tr. 
79, 92, 120). His right leg is paralyzed. (Tr. 80, 90).

As the police discovered after Pruitt was shot, no burglary 
had been in progress at 614 West Fairview Avenue. (R. 77). Pruitt 
was charged with statutory rape, see Ala. Code §13A-6-2 (1975) 
(rape in second degree), but a grand jury refused to return an 
indictment, and Pruitt was not prosecuted. (P. 32; R. 77).

After the shooting, Kidd wrote out for his superiors a
narrative account of his version of the incident. (K. 64-65).
The narrative, which the City claims has been lost, was not
produced in discovery. Kidd also gave a statement to
investigators from the Montgomery County Sheriff's Department.
(K. 66; PI. Ex. 1). In that statement, Kidd made no mention of
Darryl's "coming toward him."

I heard some bushes move and saw a black 
male come from them. I yelled "Halt,
Police," and the subject turned to his 
right running north through the wooded 
area. At this time I fired ... from my 
shotgun ...

(PI. Ex. 1 at 1).

Kidd, in his deposition, justified shooting Pruitt in part 
on the ground that when Pruitt "came out of the bushes" (K. 33), 
he "took about three steps" toward Kidd and then "veered off to 
the right (K. 39), actions that Kidd characterized as indicating 
that Pruitt had thought of harming him. Kidd testified in his 
deposition that when he shot Pruitt, he thought that Pruitt "had 

attempt to physically harm a police officer but he



avoided that attempt." (K. 84) (emphasis added) .6 When asked why
he shot Pruitt, Kidd adverted to this "avoided" (not abandoned 
but "avoided") attempt to harm him and the fact that Darryl was a 
fleeing felon:

At the time I shot Darryl Pruitt my 
thinking was that he was a fleeing felon 
coming from a burglary; that he also had 
made an attempt to physically harm a 
police officer but he avoided that attempt 
and he was a subject that I felt needed to 
be stopped.

(K. 84). Before the date that Kidd was deposed, neither he nor 
the City had ever suggested that Kidd shot Darryl because of an 
"avoided" attempt to harm Kidd. As noted above, Kidd did not 
mention the "avoided" attempt to harm him in the statement Kidd 
gave to the Sheriff's Department after the shooting. (PI. Ex. 1). 
And the City made no mention of the "avoided" attempt in any of 
the public statements made after the shooting. (PI. Ex. 8).

In the proceedings below, the City argued that Kidd feared 
for his life when he shot Pruitt. (R. 85-89; City's Petition for 
Permission to Appeal). The City has renewed this argument on 
appeal. City's Brief 19, 41-42, 44-45. Indeed, it appears that 
the primary justification offered on appeal for Kidd's conduct is

 ̂ Kidd testified:
[OJnce I walked up on him he tried to come 
out of the bushes and he was coming toward 
me and I felt he was going to try to hit 
me and knock me down and either try to get 
away or either we were going to tangle or 
whatever.

(K. 35-36).

10



Kidd's alleged fear for his life when he shot Pruitt. Jd. Yet, 
Kidd acknowledged in his deposition that when he shot Pruitt, 
Pruitt was running away from him "like O.J. Simpson" (K. 39), and 
he did not believe that Pruitt presented a danger to him.

Q. When you shot Darryl Pruitt did 
you think he was about to kill or 
seriously harm yourself or some other 
person?

A. When I shot Darryl Pruitt my 
thoughts were not as far as [him] trying 
to harm another person but myself when the 
subject initially came at me. ...

Q. Listen to the question this time if 
you would. When you shot Darryl Pruitt did 
you think he was about to kill or 
seriously harm you or some other person?A. Yes.

Q. Was it you you thought he was 
about to harm or kill?

A. ... As far as what you're saying, 
as far as immediately when I shot him[,] 
right then was he going toharm somebody, 
no, because he was running at the time.

(K. 83-84).

7 Immediately following this testified: testimony, Kidd further

Q. So is it correct then that at the 
time you shot Darryl Pruitt you didn't 
think he was about to kill or harm 
some other person?

A. No. At the time I shot Darryl 
Pruitt my thinking was that he was a 
fleeing felon coming from a burglary; that 
he also had made an attempt to physically 
harm a police officer but he avoided that 
attempt and he was a subject that I felt 
needed to be stopped.

Q. Is it also true then that at the 
time you shot Darryl Pruitt you didn't 
think he was about to kill or harm you?

A. As far as at that point, no.
(K. 84-85).

11



standard Review;

This appeal presents two questions of law, namely (1) whether 
the district court erred in ruling that the City of Montgomery's 
deadly force policy is unconstitutional and (2) whether the 
district court erred in entering summary judgment against the 
City on the issue of liability.

SUMMARY Q£ ARGUMENT
The City of Montgomery's deadly force policy is 

unconstitutional; it violates both the Due Process and Equal 
Protection clauses of the Fourteenth Amendment. Due process 
forbids a city from authorizing its police officers to shoot in 
order to arrest a person suspected only of a property crime or a 
minor, nonviolent offense. £^., Mattjs y*. Schnarr. 547 F.2d 1007 
(8th Cir. 1976) (en banc), vggated as moot sub nom. Ashcroft y. 
MatiLls, 431 U.S. 171 (1977). The purpose of arrest is to bring a 
suspect to trial, a forum in which, if the suspect is found 
guilty, an appropriate sentence can be formulated. Killing or 
endangering a suspect's life in order to arrest him defeats the 
end for which the arrest is sought. The consensus of the 
professional police community is that broad discretion to use 
deadly force is not necessary for effective law enforcement. 
Comment, gg^dly £oj,ce to Afrggt; Triggering Constitutional 

11 Harv.Civ.R.-Civ.Lib.L.Rev. 361, 374 (1976). Nor is 
such discretion needed to protect officers on the job. Experience 
demonstrates that police deaths and injuries actually decline 
when police use of deadly force is appropriately restricted. See, 

f J. Fyfe, MlP.inistrativ$ interventions on Police shooting

12



Discretion. ^  HlDPHrical Eyamination. 7 J.Crim.Just. 309 (1979). 
A majority of states have abandoned the "fleeing felon rule," 
Brief of Appellee-Respondent at 86, Tennessee Garner, n o s . 
83-1035, 83-1070 (U.S. argued Oct. 30, 1984), as have most major 
law enforcement agencies in the states in which the rule has not 
been statutorily abrogated, ^  k. Matulia, A Balance o£ Forces: 
A Export t M  International Association m  chiefs Police 
(National Institute of Justice 1982), demonstrating that a 
restrictive deadly force policy is both practical and workable.

In modern times there has been a great proliferation in the 
numbbr and kinds of crimes that are considered felonies. C. 
Milton, policy nsn ^  Deadiy Force 39 (Police Fd. 1977). Often 
the crimes designated as felonies by state legislatures are less 
grave, present less risk to the public, and display less 
depravity on the part of the offender than crimes that have been 
designated as misdemeanors, fî e MP<̂ el Penal Code §3.07 Comment at 
57 (Tent. Draft #8 1958). This is the case in Alabama, where, for 
example, it is a felony to shoplift property worth more than $25, 
Ala. Code §13A-8-4(e) (Supp. 1984), but a misdemeanor to commit 
criminally negligent homicide, incite to riot, or use a firearm 
while fighting in a public place. Ala. Code §§13A-6-4, 13A-11-4, 
13A-11-56 (Supp. 1984). Thus, the felony-misdemeanor distinction 
is an inherently irrational basis for determining which fleeing 
suspects the police may shoot.

The district court properly granted summary judgment against 
the City on the issue of liability. Former officer Kidd would not 
have been permitted to shoot Pruitt under a constitutional deadly

13



x:orce rule. Pruitt did not use violence in committing the felony 
for which he was sought, and he presented no threat to Kidd. Kidd 
did not believe that Pruitt was likely to seriously injure Kidd 
or a member of the public if not immediately apprehended, and in 
fact Kidd had no reasonable basis for such a belief.

Even if the City's deadly force policy is constitutional, 
the City is liable for Pruitt's injuries. Under Alabama law, a 
city is liable under the doctrine of respondeat superior when one 
of its police officers uses excessive force in effecting an 
arrest. City ^  Birm ingham v. Thompson. 404 So.2d 589 (Ala.
1981). The record shows that it was neither necessary nor 
reasonable for Kidd to use deadly force to arrest Pruitt.

ARGUMENT
I. THE CITY OF MONTGOMERY'S DEADLY FORCE 

POLICY IS UNCONSTITUTIONAL.
The district court held that the City:of Montgomery's deadly 

force policy, which incorporates the common law "fleeing felon 
rule," was unconstitutional. (R. 92-93). The court's ruling
follows a modern trend in judicial decisions that finds the 
common law rule unlawful insofar as it permits law enforcement 
officers to use deadly force to arrest property crime suspects 
who present no threat to either the police or the community. See. 
SjuS.f fiarpor M^jdeM s Police Dept.. 710 F.2d 240 (6th Cir.
1983), pjrob. juris, noted and cert, granted. ---u.S.---, 104
S.Cti 1589 (1984); Hatt js Schnarr. 547 F.2d 1007 (8th Cir. 
1976) (en banc) , vacated ^  moot sub nom. Ashcroft v. Matt is , 431 
U.S., 171 (1977) ; Jacobs y^ gjty o£ W itchita. 531 F.Supp. 12 9 (D. 
Kan. 1982); cf. £anl v.. Hutto, 304 F.Supp. 124 (E.D. La. 1969).

14



This development in the law has been overwhelmingly endorsed by 
both legal commentators and the professional police community. 
Comment, H^adly Fgcce to Arrest; Triggering Constitutional 
Entity, 11 Harv.Civ.R.-Civ.Lib.L.Rev. 361, 374 (1976), C. Milton.

ns£ fit E^adly Force 40 (Police Fd. 1977).  ̂The "fleeing 
felon rule" is the law in fewer than one-half the states. Brief 
of Appellee-Respondent at 86, Tennessee Garner. Nos. 83-1035, 
83-1070 (U.S. argued Oct. 30, 1984). And in those states that 
have not yet abandoned the rule, the majority of police 
departments have restricted the use of deadly force by 
regulation to those circumstances in which the suspect is 
believed to have committed a violent crime or to be a threat to 
the police or to the community. See K. Matulia, A Balance of 
£or<??S: A Egport Oi thg international Association of chiefs of
PQlidg (National Institute of Justice 1982).

The U.S. Supreme Court is currently considering the 
constitutionality of a state statute allowing officers to use 
deadly force to arrest property crime suspects who present no
danger to the police or the community. Tennessee y. Garner, ---

, 104 S.Ct. 1589 (1984) (granting cert.). Garner was argued 
on October 30, 1984. It seems probable that the Supreme Court's 
ruling in Sapper will ultimately affect the disposition in this

8 There is "virtually unanimous support ... in legal and 
professional police commentary" for a rule that would limit the 
use of deadly force to those circumstances in which its use is 
essential to the protection of human life or bodily security, or 
in which violence was used in committing the felony. Comment, 

£̂ r..pg io Arrest; Triggering Constitutuional Review. ll 
Harv.Civ.R.-Civ.Lib.L.Rev. 361, 374 (1976).

15



case of the issue concerning the City of Montgomery's deadly 
force policy. Accordingly, plaintiff will address the issue only 
briefly below.

A. The City of Montgomery's Deadly Force Policy 
-----Offends the Due Process Clause.________

The "fleeing felon rule" codifies a fifteenth century common 
law rule designed for a society far different from today's, one 
in which the felony-misdemeanor distinction had a meaning 
altogether different than it does today. See Boutwell, Use of 
DsMly Force to Air.gst a. Fleeing Felon. 46 F.B.I. Law Enforcement 
Bull. 27, 29 (1977). At common law felonies were punishable by 
death.9 Pearson, filaht io Kill in Making Arrests. 28 
Mich.L.Rev. 957, 974 (1930). Relatively few protections were 
afforded criminal suspects, and "[t]o be a suspected felon was 
often as good as being a dead one." T. Taylor, Tm Si Studies in 
Constitutlpn^l interpretation 28 (1969). Accordingly, "it made 
little difference if the ... felon were killed in the process of 
capture since, in the eyes of the law, he had already forfeited 
his life." Pgtrie v^ Cartw right. 114 Ky. 103 , 70 S.W. 297 , 299 
(1902) .

Since the emergence of the "fleeing felon rule," our 
society has undergone changes that have rendered the rule 
"manifestly inadequate." Model Penal Code §3.07 Comment at 56

u England's foremost commentator on the common law wrote 
that "the idea of felony is indeed so generally connected with 
that of capital punishment, that we find it hard to separate 
them." 4 W. Blackstone, Commentaries 98 (1800).

16



(Tent. Draft #8 1958). Under modern law the use of the death 
penalty has been severely curtailed and is available only for 
crimes causing loss of life under special, aggravating 
cirumstances. £o.Jc?r Georgia. 43 3 U.S. 58 4 (1977) ; Greaa v^ 
SeorgiQ, 428 U.S. 153 (1976). There has also been a tremendous 
growth in the number and kinds of crimes that are considered 
felonies, C. Milton, Police Use Deadly Force 39 (Police FD. 
1977). While there were fewer than ten crimes recognized as 
felonies at common law, scores of crimes are classed as felonies 
today, many of which involve relatively minor property offenses,

Ala. Code §13A-8-4(e) (Supp. 1984)(shoplifting of property 
worth more than $25), or relatively minor infractions of state 
regulatory schemes, £^g ., Ala. Code §13A-7-25 (Supp. 
1984)(tampering with service rendered by public utility).

Transplanted from an age for which it was suited to one for 
which it is not, the common law rule is "inherently incapable of 
separating out those persons of such dangerousness that the 
perils arising from [the] failure to accomplish [their] immediate 
apprehension justify resort to deadly force." M odel Penal Code 
§3.07 Comment at 57 (Tent. Draft #8 1958). Today, the balance 
struck by the rule between a person's fundamental right to life, 

Mllllams Kelly 624 F.2d 695, 697 (5th Cir. 1980), 
and the state's interest in effective law enforcement offends the 
precepts of due process. ILtSt / Mattis v. Schnar r. 547 F.2d 1007 
(8th Cir. 1976) (en banc), vacated as moot sub nom Ashcroft y, 
Mattj.s, 431 U.S. 171 (1977). Since life is a "fundamental right," 
its deprivation "may be justified only by a 'compelling state 
interest ... and ... [governmental policies endangering life]

17



must be drawn to express only the legitimate state interests at 
stake." 410 U.S. 113, 155 (1973). SAS. also Cleveland

al’ £dll£ati9n ^  LaFleur. 414 U.S. 632 (1974). The "fleeing 
felon rule" is not narrowly drawn, and the sweeping authority it 
affords to take or endanger life is disproportionate to the state 
interests asserted on its behalf.

A suspect is ordinarily apprehended for the purpose of 
turning him over to the judiciary for a determination of guilt. 
If' found guilty, he is sentenced in a process that includes 
consideration not only of the need for punishment but also of the 
need and opportunity for rehabilitation. Shooting the suspect as 
a means of apprehension is excessive in light of both these 
goals. If death results, it frustrates the determination 
concerning guilt that is the purpose of apprehension, obliterates 
both the substance and the appearance of due process that is 
central to the operation of the criminal justice system, and 
prevents the judicial determination of punishment, frustrating 
the possible rehabilitative goals of the sentencing process.

The "fleeing felon rule" is not only ill-tailored to the 
state's interest in the apprehension of suspects but also invites 
tragic and sometimes fatal errors by authorizing the use of 
deadly force upon only probable cause. The rule allows the 
maiming or killing of a suspect with no more or more certain 
information than is required for arrest; thus, an officer is 
authorized to take or endanger life upon information no more 
reliable than that which suffices for a trip to the station 
house. Relying on this standard, law enforcement officers

18



frequently shoot persons who are not guilty of the offenses of 
which they were suspected. Darryl Pruitt, who was partially 
paralyzed by the Montgomery police, had not committed a burglary. 
In fact, many of the persons shot by the Montgomery police in 
recent years have been innocent of the offenses of which they 
were suspected.^0

The "fleeing felon rule" is not necessary to ensure the 
safety of law enforcement officers. No court, legal commentator, 
or police authority has ever suggested that the rule be modified 
in such a way that it would prevent law enforcement officers from 
using deadly force when necessary for their own protection. For 
example, the restrictive deadly force rules proposed by the 
American Law Institute, the National Commission on Reform of 
Federal Criminal Laws, and the President's Commission on Law 
Enforcement and the Administration of Justice would all permit an 
officer to shoot to protect himself from possible death or bodily 
injury. MadeI £enal Code §3.07 (Proposed Official Draft 1962), 

Report ^  the National Commission on Reform of Federal 
ĴLllDUiaJ. IiAMSf §607 (1971), President's Commission on Law
Enforcement and the Administration of Justice, Task Force Report; 
I!lia RQlice 189-190 (1967). Moreover, the experience of law 
enforcement agencies throughout the nation has been that police 
deaths and injuries decline when more restrictive deadly force

For example, one man was shot because he was believed to 
be an escapee from a jail; he in fact was not, A young man was 
shot because he was believed to have stolen from a store; he in 
fact had not. Both were shot as they fled.

19



policies are implemented. e.g., J. Fyfe, Administrative 
iJlterventions iin, PPlidO shooting Discretion; An Empirical 
Ê î rninatlOllf 7' J.Crim.Just. 309 (1979). When police authority to 
shoot is curtailed, officers are encouraged to use arrest 
strategies that are both safer and more effective. Cf. id.H if 
the district court's rule had been in effect in the instant case, 
for example, former officer Kidd might have chosen to radio 
police units already present and others converging on the scene 
in order to direct them to mass at Pruitt's anticipated exit 
point, at which they could have either captured him or continued 
pursuit. Kidd endangered himself by not involving other officers 
in Pruitt's arrest, and he also endangered his fellow officers by 
shooting without knowing whether other officers were present in 
the area behind the store. (R. 31-32, 50-51).

The State of Alabama and Attorney General Graddick argue 
that the "fleeing felon rule" should be maintained because even 
an unarmed suspect running away from a police officer presents a 
danger to the officer. Interveners' Brief at 23-24. The State and 
Attorney General Graddick argue that an officer places his life 
in danger when he pursues and physically subdues a fleeing 
suspect. Whenever a physical confrontation develops, they assert, 
a suspect may seize an officer's weapon and seriously injure him. 
Thus, they argue, an officer should be free to shoot even an

In the absence of a shooting option, police typically 
mass numbers of officers around a suspect or at the site of a 
crime. Not only does such a strategy usually persuade the suspect 
to surrender without resistance, but it also provides arresting 
officers with safety in numbers.

20



unarmed fleeing suspect, rather than give chase, in order to 
avoid possible harm from physical contact. This argument reflects 
a disturbing misundertanding of the common law rule. According to 
the State and Attorney General Graddick, a police officer may 
shoot at a fleeing suspect even when the officer believes that he 
can pursue and catch the suspect by nondeadly means. But this is 
precisely what the common law forbids.^2 indeed, in Alabama an 
officer who shoots a suspect despite a reasonable belief that he 

capture the suspect by nondeadly means would be subject not 
only to civil liability. Union Indemnity Co. v. Webster. 218 Ala. 
468, 118 So. 794 (1928), but to criminal prosecution as well, 

^  Derricott. 161 Ala. 259, 49 So. 895 (1909).13 
As the brief of numerous law enforcement amici in the Garner 

case makes plain, the "fleeing felon rule" does not deter crime, 
nor is it required for effective law enforcement.

All the available evidence indicates 
that expansive use of police deadly force

12 This rationale is also at odds with the common law for 
another reason. It would justify the shooting of fleeing 
misdemeanants who, after all, are just as capable of seizing an officer's weapon.

TO
In their brief, the State and Attorney General Graddick 

imply that Kidd did not pursue Pruitt because Kidd feared for his 
life should a physical confrontation ensue between them. 
Interveners' Brief at 9. This version of the facts is flatly 
contradicted by Kidd's own testimony;

I ... made my decision once I initially 
ran those few steps and saw that I was not 
going to catch up with the subject. That's 
when I made the decision whether to fire 
or not fire.

(K. 52-53).

21



to apprehend fleeing suspects is in no 
way associated with reduced rates of 
crime ... For example, in 1968, the 
Oakland, California Police Department 
established an administrative policy 
prohibiting the use of deadly force to 
apprehend fleeing auto theft and burglary 
suspects. In a 1971 evaluation of that 
policy, then Police Chief Charles Gains 
reported that:
There is absolutely no evidence supporting 
the proposition that restrictive [deadly 
force] policies adversely affect the 
arrest rate for burglary and auto theft.
Our own experience in Oakland indicates 
that the institution of a policy 
restricting the use of deadly force 
against burglars had no effect, one way or 
another, upon the arrest rate for 
burglary.

*  *  *

[Moreover,] not a single [police] 
officer has been injured, killed or placed 
in jeopardy because of the restrictions 
upon his authority to fire, [citation 
omitted]

A 1979 study of the effects of a New 
York City Police Department regulation 
that restricted police officers' authority 
to employ deadly force against fleeing 
suspects reached similar conclusions. ...
[citation omitted]

A study published just last year of 
police use of deadly force in Atlanta 
similarly reported that restriction of 
police shooting discretion in that city 
was accompanied by a decrease in police 
use of deadly force and that there was no 
effect upon violent crime rates, arrest 
rates, or police injury and death rates.
[citation omitted]

Amici are aware of no empirical 
evidence, reports or studies that 
establish a public benefit flowing from 
broad use of police deadly force.

Appendix A at 17-20 (Brief of Amici Police Foundation, Nine

22



National and International Associations of Police and Criminal 
Justice Professionals, the Chiefs of Police Associations of Two 
States, and Thirty-One Law Enforcement Chief Executives,
■lennespgg :!L..Gai:ngr/ n o s . 83-1035, 83-1070 (U.S. argued Oct. 30, 
1984)).

Contrary to the assertions of the interveners, rules 
limiting the use of deadly force in arrest situations are not 
"utterly impractical." Interveners' Brief at 11. Restrictive 
deadly force rules, like those proposed by the American Law 
Institute, and by the courts in Mattis and in the instant case,^^ 
provide clear and workable guidelines for law enforcement 
officers. Under the rule enunciated by the district court, for 
example, a police officer may use deadly force if he reasonably 
believes, first, that there is probable cause that the suspect 
has committed a felony; second, that the use of deadly force is 
necessary to secure the suspect's arrest; and third, that the 
suspect is likely to physically harm the officer or another if he 
is not immediately captured.^5 rule is clear and, like the 
common law rule, focuses on the subjective state of mind of the

14
Infra.. Some of these proposed rules are set out at note 18,

Plaintiff does not take the position that the district 
court's opinion contains the best formulation of the 
constitutional rule. However, as plaintiff will demonstrate 
below, the district court's entry of summary judgment in 
plaintiff's favor on the issue of liability was appropriate under 
both its own formulation of the constitutional rule and the other 
formulations offered by courts, commentators, and police 
professionals.

23



officer and the information available to him at the time he 
makes the difficult decision whether to shoot. If the officer has 
reason to believe that the use of deadly force is necessary to 
effect a felony arrest and that the fleeing suspect presents a 
serious danger to the officer or the community, he is permitted 
to shoot. The officer is not liable if it later develops that the 
officer's reasonable belief was m i s t a k e n . T h e  rule does not 
permit a court or jury to second-guess the officer or to hold him 
liable as a result of "hindsight" or an "after-the-fact review of 
[the] officer's actions." Intervenors' Brief at 13, 19.

Rules restricting the use of deadly force do not, as the 
intervenors imply, ask police officers to make determinations 
beyond their abilities. Under the common law, an officer must 
already determine before shooting that a felony has occurred and 
that the use of deadly force is necessary to effect an arrest. 
Rules like the one adopted by:the district court require merely 
that the officer make an additional determination before he 
shoots, namely, that the suspect poses a grave danger to the 
community if not immediately captured. Like the first two 
assessments, this final determination is subjective, but it is 
one that law enforcement officers not only are uniquely qualified 
to make, but that they do routinely make in the course of their

For example, officer Kidd in this case mistakenly 
believed that Pruitt had committed a burglary. Plaintiff does not 
contend that Kidd's belief that a burglary was in progress was 
unreasonable.

24



work.1̂7 ££nal Code §3.07 Comment at 60 (Tent. Draft #8
1958) .

That a constitutional rule such as the one enunciated by the 
district court is workable is demonstrated by the fact that more 
than half of the states have already restricted the use of deadly 
force by statute to the arrest of violent or serious offenders. 
Brief of Appellee-Respondent at 86, Tennessee ^  Garner. Nos. 83- 
1035, 83-1070 (U. S. argued Oct. 30, 1984). In addition, in
states that have not abandoned the "fleeing felon rule," most law 
enforcement agencies nonetheless restrict their officers' use of 
deadly force to situations in which such force is necessary to 
prevent death or serious bodily injury. K. Matulia, A Balance
ol’Egrcgg; A Report Qt the international Association of Chiefs 
of Polige (National Institute of Justice 1982). For example, the 
State of Alabama's three largest law enforcement forces -- the 
Alabama State Troopers and the police departments of the cities 
of Birmingham and Mobile —  by regulation limit the use of deadly 
force to such situations. Alabama Dept, of Public Safety, Rules 
and Regulations, Order No. 4 (Jan. 1, 1981); Birmingham Police 
Dept., Qndei i-lfi. (July 7 , 19 80); Mobile Police

17 In fact, law enforcement officers rarely shoot a suspect 
whom they do not believe to present an imminent danger, even when 
they are authorized by law or regulation to do so. This is true 
of officers in the Montgomery police department, as well as 
officers in other law enforcement agencies. Few officers wish to 
live with having killed a petty, often youthful, offender 
who was committing an offense for which he is unlikely even to be 
imprisoned. A. Cohen, I've Killed That Man 10.000 Times. 3
Police 17 (1980).

25



Department, Ero^gdupal Order #14-B (Sept. 6, 1982). The
common sense of law enforcement professionals across the nation 
is that restrictive deadly force standards are workable and do 
not hamper effective law enforcement. See. Comment, Deadly Force

Arrest; Triggering Constitutional Review, ll Harv.Civ.R.- 
Civ.Lib.L.Rev. 361, 374 (1976).

B. The City of Montgomery's Deadly Force Policy 
— Offends the Egual Protection Clause.______

The Equal Protection Clause requires that when a state draws 
distinctions among classes of persons, the distinctions must be 
minimally rational. As the Supreme Court has explained:

The Equal Protection Clause requires 
more of a state than non-discriminatory 
application within the class it 
establishes ... . it also imposes a
requirement of some rationality in the 
matter of the class to be singled out. To 
be sure, the constitutional demand is not 
a demand that a statute necessarily apply 
equally to all persons ... . But the 
Equal Protection Clause ... require[s] 
that the distinctions that are drawn have 
"some relevance to the purpose for which 
the classification is made." Baxstrom v.
Herold. 383 U.S. 107, 111 (1966).

Rinaldi v. Yeager. 384 U.S. 305, 308-309 (1966).
The City of Montgomery's deadly force policy, and the

t

Alabama statute upon which it is based, Ala. Code §13A-3-27 
(Supp. 1984), do not meet this test because the felony- 
misdemeanor distinction is an inherently irrational basis for 
determining which suspects police officers may shoot in order to 
arrest. It is widely recognized that "legislatures often use the 
words 'felony' and 'misdemeanor' with little or no 
discrimination." R_e.statement of Torts. §131, Comments at 304

26



(1934). As a result, the distinction between a felony and a 
misdemeanor is in many instances "an arbitrary one" based on 
neither the dangerousness of the offense, Pearson, The Right to 
Kill in Majjlna Airgsts, 28 Mich.L.Rev. 957 , 974, (1930), nor the 
depravity of the offender, Boutwell, ol Deadly Force
hi f $s t ^ ipg Z_£lon, 48 F.B.I. Law Enforcement Bull. 27, 29
(1977). 2^  §3.07 Comment at 57 (Tent. Draft #8
1958). Alabama is no exception; among the offenses defined in 
Alabama as felonies are:

a. theft of property in the second 
degree, defined as "the theft of property 
which exceeds $100.00 in value but does 
not exceed $1000.00 and which is not taken 
from the person of another," Ala. Code 
§13A-8-4(a) (Supp. 1984);

b. shoplifting of property worth 
more than $25.00, Ala. Code §13-8-4(e)
(Supp 1984);

c. unlawful use of a vehicle, or 
joyriding, Ala. Code § 13A-8-11 (Supp.

d. bigamy, Ala. Code S13A-13-1 (Supp. 19 8 4);

e. obscuring the identity of a 
vehicle, Ala. Code §13A-8-22 (Supp. 1984);

f. installing an eavesdropping 
device, Ala. Code §13A—11—33 (Supp. 1984);

g. illegal possession of a credit 
card, Ala. Code §13A-9-14 (Supp. 1984).

The following offenses, however, are misdemeanors:
a. criminally negligent homicide,

Ala. Code §13A-6-4 (Supp. 1984);
b. inciting to riot, Ala. Code §13A- 11-4 (Supp. 1984);

c. reckless endangerment, defined as

27



"recklessly engag[ing] in conduct which 
c^^^^hes a substantial risk of serious 
physical injury to another," Ala. Code 
S13A-6-24 (Supp. 1984);

d. unlawful imprisonment in the first 
degree, defined as "restrain[ing] another 
person under circumstances which expose 
the latter to a risk of serious physical 
injury," Ala. Code §13A-6-41 (Supp. 1984);

e. assault in the third degree,
Ala. Code §13A-6-22 (Supp. 1984);

f. sexual abuse in the second degree,
Ala. Code §13A-6-67 (Supp. 1984);

g. using a firearm while fighting in a 
public place, Ala. Code §13A-ll-56 (Supp.1984). ^

It.is obvious that of the offenses listed above, the felonies are
less serious crimes, impose less risk to the public, and display
less depravity on the part of the offender than the
misdemeanors. Yet, under the City of Montgomery's deadly force
policy> persons suspected of the felonies may be shot if they
attempt to elude arrest while those suspected of the more serious
misdemeanors may not.

The situation here is identical to the situation that was 
presented to the Supreme Court in Skinner v. Oklahoma, 316 U.S. 
353 (1942). In Skinpgg, the Supreme Court considered a statutory 
scheme that permitted the sterilization of offenders thrice 
convicted of certain designated crimes. Upon finding that the 
offenses for which sterilization was permitted were in many cases 
no more serious or depraved than the offenses for which 
sterilization was forbidden, the Court held that Oklahoma's 
statutory scheme offended the Equal Protection Clause.

When the law lays an unequal hand on 
those who have committed intrinsically the

28



same quality of offense it has made
an invidious discrimination as if it had 
selected a particular race or nationality 
for offensive treatment.

1^. at 541.
Montgomery's deadly force policy lays "an unequal hand on 

those who have committed intrinsically the same quality of 
offense." SKinngr teaches that such treatment, especially when it 
impinges on a fundamental interest, ses_ generally. Gray, 
Ilgyelppmentp in the Law nl Equal Protection. 82 Harv.L.Rev., 1065 
(1969), offends the constitution.

II.THE COURT DID NOT ERR IN GRANTING 
SUMMARY JUDGMENT AGAINST THE CITY OF MONTGOMERY.

The summary judgment entered by the court was proper on two 
grounds. First, the record shows that under a constitutional 
deadly force policy^ former officer Kidd would not have been 
permitted to shoot Pruitt. Second, the record demonstrates that 
contrary to Alabama law, Ala. Code. §13A-3-27 (Supp. 1984); see 
ilninn Indemnity Webster . 218 Ala. 468, 118 So. 794 (1928);
£nell’ Pnixlcptt, 161 Ala. 259, 49 So. 895 (1909), in his 
effort to effect Pruitt's arrest, Kidd did not use deadly force 
only as a last resort.

A. There Is No Genuine Issue of Fact Concerning Whether 
Kidd Would Have Been Permitted to Shoot Pruitt 

___Under a Constitutional Deadly Force Policy.______
Plaintiff does not claim that the rule enunciated by the 

district court governing the use of deadly force is the best or 
most appropriate replacement for the common law rule. But the 
outcome of this case does not depend on what specific formulation 
of a constitutional rule is ultimately adopted by this Court or

29



by the Supreme Court. No constitutionally acceptable rule would 
sanction former officer Kidd's conduct in shooting Pruitt.

Courts, legislatures, commentators, and law enforcement 
agencies have all considered similar factors in formulating 
possible rules to replace the common law one. Typically, the 
rules they have devised permit an officer to use deadly force 
when the officer reasonably believes that one of the following 
three circumstances is present: (1) the suspect used violence in
the commission of the felony for which his arrest is sought; (2) 
the suspect is about to inflict serious injury on an officer or a 
membfer of the public; or (3) the suspect would present a serious 
danger to the community if permitted to remain at large.18 g^e.

18 Specific formulations often merge the second and third 
factors. For example, when the Eighth Circuit declared the 
fleeing felon rule" unconstitutional, it proposed in its stead a 
rule that would permit a law enforcement officer to use deadly 

the felon [has] used deadly force in the commission 
of the felony, or the officer reasonably believed the felon would 
use deadly force against the officer or others if not immediately 
apprehended." Mattis Schnarr. 547 F.2d 1007, 1020 (8th Cir. 
1976) (en banc) , vacated moot sub nom.. Aschcrof t y. Mattis .

Sixth Circuit in Garner limited the use 
Of deadly force to situations in which "the suspect has committed 

crime or [the officer] has probable cause to believe 
that he is armed or that he will endanger the physical safety of 

captured." garner Vĵ  Memphis Police Dept.. 710 F.2d 
^5®3) , pjLsb^ jjjxig. noted and cert, granted.

U.S.- , 104 S.Ct. 1589 (1984). The Model Penal Code would
permit the use of deadly force only when "the crime for which the 
arrest is made involved conduct including the use or threatened 
use of deadly force; or ... there is a substantial risk that the 
person to be arrested will cause death or serious bodily injury
iL- ® fPP^®^®^sion is delayed." iladsl Penal Code §3.07 (Proposed Official Draft 1962).

The interveners, the State of Alabama and Attorney General 
Graddick, argue in their brief if the "fleeing felon rule" is 
unconstitutional, its replacement should permit an officer to use 
deadly force if he or she reasonably judges that (note cont.)

30



G^rngl ^  tt£iriELhlS Police Dept.. 710 F. 2d 240 (6th Cir.
1983), prob. juris, noted and cert, granted. ---u.S.---, 104
S.Ct. 1589 (1984) ;. v. Schnarr. 547 F.2d 1007 (8th Cir.
1976) (en banc), yachted aa moot auli nom. Ashcroft Mattis. 431 
U.S.. 171 (1977); tlodel Penal Code. §3.07 Comment (Tent. Draft #8 
1958). None of these circumstances was present in the instant 
case.

Kidd did not believe that Pruitt had used violence in 
committing the crime for which Pruitt's capture was sought. The 
three black males that Kidd and his partner were looking for were 
suspected of burglarizing a commercial building. (K. 23, 37). 
Kidd had not received any report of violence in the commission of 
the alleged burglary (K. 15-15), nor did he have any reason to 
believe that Pruitt had engaged in violent conduct. He did not 
know Pruitt (K. 35) and had no information that Pruitt had ever 
been arrested for or convicted of a violent crime. (Id.). And as 
the City admits, Pruitt has in fact never been arrested for or 
convicted of such an offense (P. 9-11).

Kidd actually stated in his deposition testimony that, when 
he shot Pruitt he did not believe that Pruitt was about to 
inflict serious injury on Kidd or any other person. (K. 83-85). 
Although Kidd says he believed that Pruitt thought about 
"tangling" with Kidd when Pruitt emerged from the bushes (K. 35-

(note 18 cont.)
such force is necessary to apprehend an arrestee, whom the 
Officer reasonably judges to present a serious danger to others 
involved in the incident or to the community as a whole." 
Interveners' Brief at 29.

31



36), Kidd acknowledges that neither he nor any other person was
in danger when he fired two shotgun blasts at Pruitt. (K. 83-85).
At. the time he took aim and fired, Kidd was some distance from
Pruitt (K. 19-21, 39, 44), who was running away from Kidd "like
O.J. Simpson." (K. 39). As Kidd testified:

As far as what you're saying, as far as 
immediately when I shot him[,] right then 
was he going to harm somebody, no ...

(K. 84) .

The City of Montgomery objected below to the entry of
summary judgment on the ground that a genuine factual issue
exists in this case concerning whether Kidd feared for his life
when he shot Pruitt. (R. 85-89; City's Petition For Permission to
Appeal). The City makes this same argument on appeal. For
example, the City contends in its brief that

[i]n spite of the repeated statements of 
Officer Kidd to the effect that at the 
time he shot he thought Mr. Pruitt was 
about to seriously harm him, the Trial 
Judge stated in his order that '[Kidd] did 
not believe Pruitt posed a danger of death 
or bodily injury to anyone.'

*  *  *

This was in spite of Officer Kidd's 
repeated testimony that ... Kidd thought 
Pruitt was about to harm him.

*  *  *

Surely it is material whether Officer Kidd 
believed his life or another's was in danger.

City's Brief at 42, 44-45 (citations omitted). However, as the 
district court determined when it granted summary judgment, 
there is no evidence in the record that would permit an inference

32



that Kidd feared for his life when he shot Pruitt.
Although' Kidd testified that he initially 
feared an attack from Pruitt, his 
deposition testimony repeatedly indicates 
that [when he shot Pruitt] Kidd's own 
subjective concern was for effecting 
Pruitt's arrest, and not for his own ... 
safety;

(R. 196). This conclusion reached by the district court is
compelled by Kidd's own denials that he feared for his life when 
he shot Pruitt.

Q. Is it also true that at the time 
you shot Darryl Pruitt you didn't think he 
was about to kill or harm you?

A. As far as at that point, no.
(K. 84-85). Yan ilunkins and Associates. Inc, IL.. ^
Industries, Inc., 736 F.2d 656 (llth Cir. 1984) (when a party has 
given clear answers to deposition questions, party cannot create 
genuine issue by later contradicting his answers without 
explanation)

Finally, Kidd had no reason to believe at the time of the 
shooting that Pruitt presented a serious danger to the community 
if not immediately captured. Pruitt, who appeared to Kidd to be 
a "young black male ... in his teens" (K. 35), was a property 
crime suspect. Kidd had no information that Pruitt had any 
history of arrests or convictions for crimes of violence (K. 35), 
and in fact, Pruitt had never been arrested for or convicted of 
any such offenses (P. 9-11; Tr. 109-110). Moreover, Kidd's brief

Even if Kidd had actually feared for his life when he 
fired at Pruitt, his fear would have been patently unreasonable 
under the circumstances. Therefore, his subjective fear could not 
in any case have provided a basis for the court to deny summary 
j udgment.

33



encounter with Pruitt gave the officer no reason for believing 
that Pruitt presented a grave risk to the public if not 
immediately apprehended.

Kidd testified that when Pruitt emerged from the bushes,
Pruitt "took about three steps" toward Kidd and then "veered off
to the right" and "went off like he was O.J. Simpson and kept
running". (K. 39). According to Kidd, when Pruitt took those few
steps in his direction, Kidd thought that Pruitt might attempt

to hit me and try to knock me down and 
either try to get away or either we were 
going to tangle or whatever.

(K. 36). Kidd testified that such a turn of events could have 
been dangerous because

I have two weapons on me. So if I were to 
be knocked down and he were to take my 
shotgun then I'm through,

(K. 40, 83). As it happened, the possible behavior that Kidd 
feared never materialized; Pruitt veered off and ran. Looking 
back on the whole incident, Kidd interpreted Pruitt's movement as 
follows;

I guess he was waiting for me to walk by 
and then he was going to be gone. But I 
must have walked straight into his path. I 
boxed him in.

Q. He had to go around you to get out?
A. (Witness nods head in the 

affirmative.)
(K. 41-42) .

In its brief, the City argues that Kidd was justified in 
shooting Pruitt because it had appeared to Kidd at one time that 
Pruitt might "tangle" with him. That Kidd might have momentarily 
k^Iieved that Pruitt cansid?red "tangling" with him is not a

34



constitutionally sufficient basis for Kidd's conduct. Considering 
the statements both Kidd and the City made shortly after the 
incident (PI. Exs. 1, 8), in which no mention is made of any such 
behavior by Pruitt, it is unlikely that Pruitt even moved towards 
Kidd when Pruitt emerged from the bushes. It seems farfetched 
that Pruitt, who was not armed, should have ever considered 
attacking a large, muscular officer holding a shotgun in a 
position ready for firing. (K. 19; Pi. Ex. 4). And it seems 
equally improbable under the circumstances that Kidd ever 
believed that Pruitt might attack him. Nevertheless, as the 
district court recognized, Kidd's testimony must be credited on 
summary judgment. (R. 90-95, 196). Even if credited, however, 
Kidd's testimony does not provide a reasonable basis for Kidd to 
have believed that Pruitt presented a grave threat to the 
community if not immediately apprehended. Indeed, it does not 
appear that Kidd actually believed that Pruitt presented such a 
threat.

Kidd's deposition testimony shows that when he fired at 
Pruitt, his concern was only with his own safety, not the safety 
of any other persons. (R. 90-95, 196).

Q. Now at the time you fired, did you 
think Pruitt was dangerous?

A. ... Anytime a subject would even 
attempt to use physical force the subject 
has a potential of being dangerous because 
I have two weapons on me. So I were to be 
knocked down and he were to take my 
shotgun then I'd be through.

(K. 40)

Q. When you shot Darryl Pruitt did you 
think he was about to kill or seriously 
harm yourself or some other person?

A. When I shot Darryl Pruitt my

35



thoughts were not as far as [him] trying 
to harm another person but myself ... i 
felt that the subject was trying to harm 
me physically which means if he is trying 
to harm me physically and I also have a 
shotgun and another weapon on my side he 
could easily get them and kill me.

(K. 83). Thus, as this testimony demonstrates, when Kidd fired at
Pruitt, he was not thinking about whether Pruitt presented a
serious risk to the community, and the City cannot justify the
shooting now on the basis that Kidd believed, reasonably or not,
that Pruitt presented any such danger.

Even had Kidd believed that Pruitt presented a serious 
threat to the community, his belief would not have been 
reasonable. Courts have held that in evaluating whether a fleeing 
suspect presents a "serious threat" to the community, one looks 
to the suspect's propensity for violence. See. e.a., Garner y. 
£l£in£]liS £gll.cg Pgpt., 710 F.2d 240 (6th Cir. 1983) , orob. juris. 
i m i M  aM c^rt. axanted, — u.s.— , 104 s.ct. 1589 (1984);
Matils gghparrf 547 F.2d 1007 (8th Cir. 1976) (en banc),
yagatgd ^  maai g»b agm.. Ashcroft V. Mattis. 431 U.S. 171 (197 7) . 
An officer is justified in a belief that a suspect poses a 
"serious danger" if the suspect has either used violence in the 
commission of a felony or demonstrated that he is likely to 
inflict serious bodily injury if he is not immediately captured.

a»a*/ Matt is Schnarr. 547 F.2d 1007, 1020 (8th Cir.
1976) , yasated as maat ayb nom.. Ashcroft yî  Mattis. 431 U.S. 171 
(1977); MPdsl Panai £sda §3.07 (Proposed Official Draft 1962). As 
the record reflects, Kidd had no information that Pruitt had used 
violence in the commission of a felony, nor did Kidd have any 
basis for believing that Pruitt was likely to inflict serious

36



bodily injury if not immediately apprehended. Pruitt was not 
about to harm Kidd while running away from him "like 0. j. 
Simpson." (K. 39). And Pruitt had not demonstrated that he was 
likely to seriously injure a member of the public either if not 
immediately captured. If Kidd is to believed, he thought that 
Pruitt might attack him when Pruitt was emerging from the bushes. 
As it turned out, Pruitt did not attack him. Kidd thought at most 
that Pruitt had considered using force against him. While Kidd 
might have believed that "tangling" with Pruitt could be 
dangerous because Pruitt might take his weapon if. such an 
encounter ensued, no such encounter did in fact ensue. The thread 
of possibilities spun out by Kidd in his deposition testimony, 
possibilities that never materialized, provides no reasonable 
basis for a belief that Pruitt was likely to kill or seriously 
injure anyone if not immediately stopped. £f. 6 M oore's Federal 
Practice §56.15[3] (2d. ed. 1983).

Presented with Kidd's testimony, no jury could find that 
Kidd had a reasonable basis for believing that (1) Pruitt had 
used force in committing the alleged burglary, (2) Pruitt would 
injure Kidd if not shot, or (3) Pruitt posed a threat to the 
community so grave that it was necessary to kill him or to 
endanger his life in order to arrest him. Accordingly, the 
district court properly granted summary judgment against the 
City. 6 Mootg's f.(g.dei;al Practice §56.02[10] at 42-43 (2d ed. 
1983) ("functionally the theory underlying a motion for summary 
judgment is the same as the theory underlying a motion for 
directed verdict"; "the primary purpose of the motion for summary

37



judgment is to avoid a useless trial").

B. There Is No Genuine Issue of Fact Concerning 
Whether Kidd Violated Alabama Law By Using Deadly 

E-Pcce When Other Meang Were Available to Capture Pruitt.
if this Court finds that the City of Montgomery's deadly 

force policy: is constitutional, it should nonetheless affirm the 
judgment below because that judgment is supported by an 
independent state law ground. Alabama statutory law, which 
codifies the "fleeing felon rule", permits a law enforcement 
officer to use deadly force to arrest a fleeing suspect only as 
a last resort. Ala. Code §13-A-3-27 Commentary (Supp. 1984); see 
Ilnisn IHiî IDILi.ty W ebster. 218 Ala. 46 8, 118 So. 7 94 (192 8) ;

Deixicoti, 161 Ala. 259, 49 So. 895 (1909). And under 
Alabama law, a city is liable under the doctrine of respondeat 
superior when a municipal police officer uses excessive force to 
effect an arrest. 23 S City q£ Birm ingham v. T h o m p s o n 404 So.2d 
589 (Ala. 1981); gee generally Survey of Developments in Alabama

33 Ala. L. Rev. 613 , 801-802 (1982). If an 
officer violates deadly force when other nonlethal means of 
arrest are available to him, both he and his municipal employer 
are liable to the injured party, id.

The record demonstrates that there were nondeadly means 
available for effecting Pruitt's arrest and that Kidd was aware 
of these alternatives when he shot Pruitt. It is unexplained why 
Kidd failed to use these available nonlethal means to arrest 
Pruitt, but it appears that Kidd did not understand the legal 
requirement that deadly force be used only as a last resort in 
making a felony arrest. Repeatedly, Kidd was asked to identify

38



restrictions imposed by the law on his use of deadly force in 
arresting felons. (K. 12-14). Kidd replied in effect that he 
knew of no such restrictions and that as an officer, he had a 
"blanket right" to shoot fleeing felons.

Q. Now, are there any limitations on 
when you can use deadly force against a 
felon?

A. Well, that would be I guess a 
personal thing. ...

Q. Are there any limitations that are 
written into Alabama law?

A. Of course you have limitations.
It's according to how the felony law would 
read. ... I couldn't really just say that 
there are limitations upon shooting a 
felon because once you commit a felony 
you've got yourself in a position to where 
you might get killed because that's the 
way the law reads.

Q. Okay. What I'm asking is the way 
the law reads about shooting fleeing 
felons, are there any limitations on your 
right to shoot a fleeing felon or does a 
police officer just have a blanket right 
to shoot fleeing felons?

A. Only if he positively thinks that 
the person has committed a felony. ...

(K. 10-12). It is perhaps not surprising then that Kidd failed in
arresting Pruitt to use the nondeadly means at his disposal.

Kidd testified in his deposition that it was necessary for 
him to use deadly force to arrest Pruitt (K. 82), but the 
evidence shows that that his use of deadly force was neither 
necessary nor reasonable. At the time he shot Pruitt, Kidd had at 
least two nonlethal options for effecting Pruitt's arrest. He 
could have involved the other officers present at and converging 
on the scene in the pursuit and arrest of Puritt, thereby 
obviating the necessity for shooting, or he could have obtained 
Prbitt's identity and location from the "accomplices" already 
under arrest, similarly making the use of deadly force

39



unnecessary.

The Montgomery Police Department follows the standard police 
practice of massing officers at a felony crime scene, both to 
protect one another and to display sufficient force to persuade 
suspects to surrender without resistance. (K. 21-24, 27-28, 42- 
44, 56-58; S. 22-25, 29).20 Thus, when the police are informed 
that a felony is in progress, numbers of police units are 
immediately dispatched to the scene , and they are deployed at 
the scene in a manner enabling them to protect one another and to 
"secure" the area against the felon escaping. (Xd..) The police 
responded in accordance with this standard practice when they 
received a report that a burglary was in progress at 614 West 
Fairview Avenue. A number of patrol cars converged on the scene. 
(K. 18, 21, 31). Kidd and his partner were the first to arrive 
(K. 18), another car arrived just as Kidd saw Pruitt (K. 24), 
and within seconds a third car arrived (K. 25). Kidd was aware of 
the presences of both of the other cars. (K. 24-25). Although, 
according to Kidd, he and his partner needed only these two 
additional patrol cars to make the crime scene "secure" (K. 24, 
44), Kidd inexplicably failed to use these units, or the others 
converging on the scene, to secure the area and arrest Pruitt.

Kidd should have known that he could have effected Pruitt's 
capture by involving other police units in the pursuit and arrest 
of Prliitt. He had been trained to coordinate his efforts with

20Citation in the form of S.
Chief of Police Charles Swindall.

are to the deposition of

40



other units and to rely on other units to cut off a fleeing 
suspect's avenues of escape (K. 21-24, 27-28, 42-44, 56-58; S. 
22-25, 29), and it was unreasonable for Kidd to depart from this 
accepted practice in the instant case. He was familiar with the 
wooded area behind the store (K. 17), including the paths that 
traversed it (K. 36, 39, 50-51); he testified that when Pruitt 
veered off and ran north, he expected Pruitt to exit the wooded 
area near an electric power station abutting an intersecting 
street. (X^.). Kidd's training dictated that he direct the other 
police units present and converging on the scene to intercept 
Pruitt at that point and to capture him there or continue the 
pursuit. (K. 21-24, 27-28, 42-44, 56-58; S. 22-25, 29). Kidd was 
equipped with a walkie-talkie (K. 18), he was in continuous 
radio contact with the other units (K. 22-23 , 54), and he could 
easily have followed this procedure (K. 55-56), which is designed 
in part to provide an effective alternative to the use of deadly 
force in circumstances such as the one present in this case. (K. 
22, 43). His failure to pursue this readily available 
alternative violated Alabama law, which permits deadly force in 
making a felony arrest only when an officer reasonably believes 
that the use of such force is his last resort. Ala. Code §13A-3- 
27 Commentary (Supp. 1984).

The fact that Kidd's partner had arrested Pruitt's two 
"accomplices" provided Kidd with another alternative to using 
deadly force. Before he fired at Pruitt, Kidd was informed by his 
senior partner that two suspects had been taken into custody in 
front of the store (K. 17—18), suspects whom Kidd believed to be

41



Pruitt's two "accomplices", (lii.). Instead of using deadly 
force, therefore, Kidd could have relied on the usual police 
practice of interrogating the suspects in order to identify 
Pruitt and locate him for arrest. With the two "accomplices" in 
hand, it was additionally unnecessary and unreasonable for Kidd 
to use deadly force to arrest Pruitt.

CONCLUSION
For the foregoing reasons,22 plaintiff prays that the Court 

affirm the judgment below.

22 In this brief, plaintiff has addressed the questions 
presented in the "Statement of the Issues" in the City's brief. 
In-the body;of the City's brief, the City appears to argue for 
reversal on two additional grounds not covered by the "Statement 
of Issues." First, the City argues that the judgment below should 
be reversed because the district court "severed" the Avler claim 
against the City (that is, the claim that Kidd shot Pruitt 
pursuant to a city policy that violated the standard enunciated 
in c) from plaintiff's other claims against the City. The
City argues that it was improper for the court to try the issue 
of damages ag a i nst the City without trying plaintiff's 
alternative claims. However, the City cannot point to any 
prejudice it suffered as a result of the court's trying the issue 
of damages without trying plaintiff's alternative theories of 
liability. Accordingly, the "severance" of which the City 
complains provides no basis for reversing the judgment below.

The City also argues that the decision of the three-judge 
:Lm. City o± Atlanta. 737 F.2d 894 (11th Cir. 

1984), counsels a reversal here. While the panel decision in 
GJlmeF^ requires that victims of police brutality rely on state 
remedies when such remedies are adequate, that decision is no

Ci^Y of Atlanta. Nos. 82-8457, 82- 
Cir. Oct. 1, 1984) (order directing that case be

reheard bang). Moreover, even if Gilmere were the law of this 
Circuit, it would not require reversal because the State of 
Alabama, which recognizes the "fleeing felon rule," affords no 
remedy for violations of the Ayler standard.

42



Respectfully submitted.

IRA A. BURNIM 
DENNIS C. SWEET 
MORRIS S. DEES

P. 0. Box 2087 
1001 South Hull Street 
Montgomery, Alabama 36102 
(205) 264-0286

ATTORNEYS FOR APPELLEE

CERTIFICATE SERVICE
I hereby certify that I served copies of the foregoing on 

Mr. Robert C. Black and Mr. N. Gunter Guy, Jr., counsel for 
appellants, and Mr. Joseph G. L. Marston III, counsel for the 
intervenors, by U.S. first-class mail, this 22nd day of January, 
1985.

ATTORNEY FOR APPELLEE

43