Alabama v. Pruitt Appendices to the Petition for Writ of Certiorari to the US Court of Appeals for the Eleventh Circuit

    NO.

IN THE SUPREME COURT OF THE 
UNITED STATES

OCTOBER TERM, 1984
STATE OF ALABAMA AND 
CHARLES A. GRADDICK, 

ATTORNEY GENERAL, PETITIONERS
VS.

DARRYL PRUITT, RESPONDENT
APPENDICIES TO THE PETITION 

FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE ELEVENTH CIRCUIT
OF

CHARLES A. GRADDICK 
ATTORNEY GENERAL

AND
JOSEPH G. L. MARSTON III 

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL 
250 Administrative Building 

64 North Union Street 
Montgomery, Alabama 36130 

(205) 834-5150
ATTORNEYS FOR PETITIONER



1 ®

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NO.

IN THE SUPREME COURT OF THE 
UNITED STATES

OCTOBER TERM, 1984
STATE OF ALABAMA AND 
CHARLES A. GRADDICK, 

ATTORNEY GENERAL, PETITIONERS
VS.

DARRYL PRUITT, RESPONDENT
APPENDICIES TO THE PETITION 

FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR 

THE ELEVENTH CIRCUIT
OF

CHARLES A. GRADDICK 
ATTORNEY GENERAL

AND
JOSEPH G. L. MARSTON III 

ASSISTANT ATTORNEY GENERAL

OFFICE OF THE ATTORNEY GENERAL 
250 Administrative Building 

64 North Union Street 
Montgomery, Alabama 36130 

(205) 834-5150
ATTORNEYS FOR PETITIONER



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TABLE OF APPENDICIES

PAGE

APPENDIX "A", ORDER AND AMENDED 
OPINION OF DISTRICT COURT 
DECLARING SECTION 13A-3-27, 
CODE OF ALABAMA, 1975, UN­
CONSTITUTIONAL AND SUMMARILY 
GRANTING JUDGMENT FOR THE 
PLAINTIFF-------------------

APPENDIX "B", TEXT OF SECTION
13A-3-27, CODE OF ALABAMA,1975----------------------

APPENDIX "C", MOTION OF THE 
STATE OF ALABAMA AND 
CPiARLES A. GRADDICK, 
ATTORNEY GENERAL, UNDER 
28 U.S.C. 2403, TO 
INTERVENE FOR THE SOLE 
PURPOSE OF DEFENDING THE 
CONSTITUTIONALITY OF 
SECTION 13A-3-27, CODE OF 
ALABAMA, 1975 AND THE 
PUBLIC INTEREST OF THE 
PEOPLE OF ALABAMA--------

14

20

APPENDIX "D", ORDER OF U.S.
COURT OF APPEALS GRANT­
ING THE ABOVE----------

APPENDIX "E", MOTION OF
APPELLEE (RESPONDENT HERE) 
TO STAY PROCEDURES IN THE 
COURT OF APPEALS----------

CERTIFICATE OF SERVICE-

27

28
35



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE MIDDLE DISTRICT OF 

ALABAMA, NORTHERN DIVISION

APPENDIX A

DARRYL PRUITT, 
Plaintiff,

V .

THE CITY OF 
MONTGOMERY; et al

Defendants

)
)
)
))CIVIL ACTION NO 
)83-T-903~N 
)
)
)

ORDER
Plaintiff Darryl Pruitt has brought 

this cause of action under 42 U.S.C.A. § 
1983 and Alabama constitutional and tort 
law against defendants City of 
Montgomery, Alabama and Lester Kidd, 
formerly a city police officer. Pruitt 
seeks to recover for injuries he suffered 
when he was shot by Kidd.

This cause is now before the court 
on Pruitt's May 17, 1984, motion for 
summary judgment and the defendants' May 
29, 1984, motion for summary judgment.



For reasons which follow, Pruitt's motion 
is due to be granted in part and denied 
in part, and the defendants' motion is 
due to be denied.

I.
On the night of September 2, 1982, 

Officer Kidd and another officer respond­
ed to radio reports of a suspected 
burglary in progress in a building on 
West Fairview Avenue in Montgomery. The 
suspects were described as black males. 
As Kidd walked near the rear of the 
building he encountered Pruitt, who is 
black, emerging from a bush. Pruitt 
immediately began to flee on foot. Kidd 
ran a few steps after Pruitt before 
deciding that he would be unable to over­
take Pruitt. Kidd then shouted 
directions to Pruitt to "halt, police." 
When Pruitt failed to stop Kidd fired 
two shots at Pruitt from a twelve-gauge



shotgun. At least one of the shots 
struck Pruitt in the area of the 
buttocks, bringing him to the ground. 
Pruitt was searched at the scene and 
found to be unarmed.

Pruitt was subsequently arrested and 
charged with commission of a rape that 
had allegedly occurred in the building.
A Montgomery County grand jury failed, 
however, to return an indictment on this 
charge. Also, there was no burglary as 
suspected.

The regulations of the Montgomery 
City Police Department authorize the use 
of deadly force if necessary to stop a 
fleeing felony suspect. These 
regulations are based upon an Alabama 
statute permitting law enforcement 
officers to use deadly force "[t]o make 
an arrest for a felony or to prevent the 
escape from custody of a person arrested



for a felony, unless the officer knows 
the arrest is unauthorized." 1975 Ala. 
Code §13A-3-27 (Supp. 1982).

Kidd testified by deposition that, 
relying on the State and City's deadly 
force policy, he shot Pruitt to prevent 
him from escaping arrest. Kidd stated 
that when he fired his weapon he 
considered Pruitt a prime burglary 
suspect, but he did not believe Pruitt 
posed a danger of death or bodily injury 
to anyone. Kidd stated that he would not 
have fired had he believed that other 
officers responding to the call would 
have intercepted Pruitt and effected an
arrest.

II.
The parties have moved for a summary 

judgment on the issue of the liability of 
the City and Kidd for violation of



Pruitt's civil rights under § 1983 and 
Alabama constitutional and tort law.

Summary judgment is appropriate only 
if "there is no genuine issue as to any 
material fact and .., the moving party is 
entitled to judgment as a matter of law." 
Fed. R. Civ. P. 56(c). Furthermore, even 
when the underlying facts are undisputed, 
summary judgment should not be granted 
unless reasonable minds could not differ 
on the inferences to be drawn from those 
facts. See Warrior Tombigbee Transpor­
tation Co. V. m / Nan Fung, 695 F.2d 1294, 
1296-97 (11th Cir. 1983). This is an 
appropriate case for summary judgment.

In Ayler v. Hopper, 532 F. Supp. 198 
(M.D.Ala. 1981), the court held that use 
of deadly f o r c e t o  stop a fleeing or

^• Alabama law defines deadly force as 
"Cfjorce which, under the circumstances 
in which it is used, is readily capable



escaping felon constituted a civil rights 
violation actionable under § 1983 "unless 
the official has good reason to believe 
that the use of such force is necessary

Footnote 1 continued;
of causing death or serious physical 
injury." 1975 Ala. Code § 13A-3-20(2) 
Supp. 1982). The Model Penal Code 
^ofinition of deadly force is

force which the actor uses with 
the purpose of causing or which 
he knows to create a substan- 

risk of causing death or 
serious bodily harm. Purposely 
firing a firearm in the direct­
ion of another person or at a 
vehicle in which another person 
is believed to be constitutes deadly force.

Model Penal Code § 3.11(2)(1962). See 
Mattis V. Schnarr, 547 F.2d 1007, lM9  
n.2 (8th Cir. 1976), vacated as moot sub 
n^. , Ashcroft v. Mattis. 43lU.s7~T7l—  
9"7 S.Ct. 1739 (1977). Under these 
definitions of deadly force, the 
defendants; contention that Kidd was not 
using deadly force because he intended to 
and did only wound Pruitt is untenable.



to prevent imminent, or at least a 
substantial likelihood of, death or 
great bodily harm." Id. at 201. See 
^Iso Garner v. Memphis Police Department, 
710 F.2d 240, 246 (6th Cir. 1983), cert.
granted. U.S. , 104 S.Ct. 1589
(1984); Mattis v. Schnarr, 547 F.2d 1007, 
1020, (8th Cir. 1976), vacated as moot 
sub nom., Ashcroft v. Mattis, 431 U.S. 
171, 97 S.Ct. 1739 (1977). Ayler held § 
13A—3—27 of the 1975 Code of Alabama 
unconstitutional to the extent that it 
permitted use of deadly force in other 
circumstances. 532 F. Supp. at 201.

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. Kidd's use of deadly force under



these circumstances did not meet the
standard and, therefore, violated 

Pruitt's civil rights.2.
Municipalities are subject to § 1983 

liability when a cognizable injury is 
inflicted by "execution of a government's 
policy or custom, whether made by its 
lawmakers or by those whose edicts or 
acts may fairly be said to represent 
official policy...." Monell v. Depart­
ment of Social Services, 436 U.S. 658,
694, 98 S.Ct. 2018, 2037-38 (1978). See

In Garner v. Memphis Police Depart- 
5ient, 710 F . 2d 240, , 246 (6th Cir. 1983),

granted, ___ U.S. ___, 104 S.Ct.
1589 (1984), the Sixth Circuit stated 
that "officers may be justified in using 
deadly force if the suspect has committed 
a violent crime or if they have probable 
cause to believe that he is armed or that 
he will endanger the physical safety of 
others if not captured." at 246.
Kidd's use of deadly force fails to meet 
the constitutional standard announced in Garner.

8



g • 9 »/ William v, city of Valdosta, 
689 F.2d 964, 969 (11th Cir. 1982).
Here, the policy of the Montgomery City 
Police Department authorized the 
unconstitutional use of deadly force, and 
Pruitt s shooting was merely an execution 
of this policy. Taylor v. Collins, 574 
F. Supp. 1554, 1559 (E.D. Mich. 1983).
The City of Montgomery is, therefore, 
liable to Pruitt under § 1983 for the 
unconstitutional use of deadly force upon 
him.3.

Kidd, on the other hand, maintains 
that, even if his use of deadly force was 
unconstitutional, he is "qualified 
immune" from any liability. Harlow v.

The only issue left for trial on 
Pruitt's § 1983 claim against the City is the amount of damages.



Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 
(1982).'^* The court declines to reach 
this issue at this time. Pruitt has 
informed the court that he may dismiss 
his claims against Kidd in the event the 
city is found liable on the § 1983 claim.

Pruitt has also asserted causes of 
action under Alabama consitutional and 
tort law under the pendent claims 
doctrine of United Mine Workers v. Gibbs, 
383 U.S. 715, 86 S.Ct. 1130 (1966). In 
light of the court's disposition of the § 
1983 claim against the City, the court 
does not see a need to address the state 
law claims at this time.

Accordingly, for the reasons stated 
above, it is ORDERED;

The good faith or qualified immunity, 
if any, of a municipal agent executing 
city policy does not alter the 
municipality's liability. Owen v. City 
of Independence, 445 U.S. 622, 100 S.Ct. 1398 (1980).

10



(1) That the plaintiff's May 11, 
1984, motion for summary judgment be and 
it is hereby granted in his favor and 
against defendant City of Montgomery 
Alabama on the issue of liability under 
42 U.S.C.A. § 1983; and that said motion 
be and it is hereby denied in all other 
respects; and

(2) That the defendants' May 29, 
1984, motion for summary judgment be and 
it is hereby denied.

If is further ORDERED that this 
cause be and it is hereby set for a 
second pretrial conference on June 13, 
1984, at 4:00 p.m. at the federal court­
house in Montgomery, Alabama. The clerk 
of the court is DIRECTED to notify the 
parties by telephone.

DONE, this the 12th day of June,
1984.

/s/ Myron Thompson
UNITED STATES DISTRICT JUDGE

11



IN THE DISTRICT COURT OF THE UNITED 
STATES FOR THE MIDDLE DISTRICT OF 

ALABAMA, NORTHERN DIVISION
DARRYL PRUITT, 

Plaintiff,
V.

THE CITY OF 
MONTGOMERY; et al.

Defendants

)
)
)
)
)CIVIL ACTION NO. 
)83-T-903-N 
)
)
)
)

ORDER
The court is of the opinion that the 

order entered in this cause on June 12, 
1984, should be amended by substituting 
the following paragraph for the final 
paragraph at the end of Part I of the 
order, appearing on page 2.

Kidd testified by deposition 
that, relying on the State and 
City's deadly force policy, he 
shot Pruitt to prevent him from 
escaping arrest. Kidd testi­
fied that, when he first en­
countered Pruitt emerging from 
a darkened bush, Pruitt was 
about to attack him so he 
raised his shotgun to "high 
port", whereupon Pruitt veered

12



and began running away. Kidd 
stated tbat be began to give 
chase but quickly became con­
vinced that the could not over­
take Pruitt and effect an 
arrest. At that point, Kidd 
shouted a command for Pruitt to 
stop and fired when that com­
mand was unheeded. Although 
Kidd testified that he initial­
ly feared an attack from Pru­
itt, his deposition testimony 
repeatedly indicates that 
Kidd's own subjective concern 
was for effecting Pruitt's ar­
rest, and not for his own or 
another's safety.
Accordingly, it is ORDERED that the

June 12, 1984, order be and it is hereby
amended as indicated above.

DONE, this the 26th day of July,
1984.

/s/ Myron Thompson
UNITED STATES DISTRICT JUDGE

13



§13A-3-26

APPENDIX B

DEFENSES
* * * * *

§13A-3-27

§13A-3-27. USE OF FORCE IN MAKING AN 
ARREST OR PREVENTING AN ESCAPE.

(a) A peace office is justified in 
using that degree of physical force which 
he reasonably believes to be necessary, 
upon a person in order:

(1) To make an arrest for a 
misdemeanor, violation or violation of a 
criminal ordinance, or to prevent the 
escape from custody of a person arrested 
for a misdemeanor, violation or violation 
of a criminal ordinance, unless the peace 
officer knows that the arrest is 
unauthorized; or

(2) To defend himself or a third 
person from what he reasonably believes 
to be the use or imminent use of physical

14



force while making or attempting to make 
an arrest for a misdemeanor, violation or 
violation of a criminal ordinance, or 
while preventing or attempting to prevent 
an escape from custody of a person who 
has been legally arrested for a 
misdemeanor, violation or violation of a 
criminal ordinance.

(b) A peace officer is justified in 
using deadly physical force upon another 
person when and to the extent that he 
reasonably believes it necessary in 
order;

(1) To make an arrest for a felony 
or to prevent the escape from custody of 
a person arrested for a felony, unless 
the officer knows that the arrest is 
unauthorized; or

(2) To defend himself or a third 
person from what he reasonably believes 
to be the use or imminent use of deadly

15



physical force.
(c) Nothing in subdivision (a)(1), or 

(b)(1) or (f)(2) constitutes justifica­
tion for reckless or criminally negligent 
conduct by a peace officer amounting to 
an offense against or with respect to 
persons being arrested or to innocent 
persons whom he is not seeking to arrest 
or retain in custody,

(d) A peace officer who is effecting an 
arrest pursuant to a warrant is justified 
in using the physical force prescribed in 
subsections (a) and (b) unless the 
warrant is invalid and is known by the 
officer to be invalid.

(e) Except as provided in subsection
(f), a person who has been directed by a 
peace officer to assist him to effect an 
arrest or to prevent an escape from 
custody is justified in using physical 
force when and to the extent that he

16



reasonably believes that force to be 
necessary to carry out the peace 
officer's direction.

(f) A person who has been directed to 
assist a peace officer under circum­
stances specified in subsection (e) may 
use deadly physical force to effect an 
arrest or to prevent an escape only when:

(1) He reasonably believes that 
force to be necessary to defend himself 
or a third person from what he reasonably 
believes to be the use or imminent use of 
deadly physical force; or

(2) He is authorized by the peace 
officer to use deadly physical force and 
does not know that the peace officer 
himself is not authorized to use deadly 
physical force under the circumstances.

(g) A private person acting on his own 
account is justified in using physical 
force upon another person when and to the

17



extent that he reasonably believes it 
necessary to effect an arrest or to 
prevent the escape from custody of an 
arrested person whom he reasonably 
believes has committed a felony and who 
in fact has committed that felony, but he 
is justified in using deadly physical 
force for the purpose only when he 
reasonably believes it necessary to 
defend himself or a third person from 
what he reasonably believes to be the use 
or imminent use of deadly physical force.

(h) A guard or peace officer employed 
in a detention facility is justified;

(1) In using deadly physical force 
when and to the extent that he reasonably 
believes it necessary to prevent what he 
reasonably believes to be the escape of a 
prisoner accused or convicted of a felony 
from any detention facility, or from 
armed escort or guard;

18



(2) In using physical force, but not 
deadly physical force, in all other 
circumstances when and to extent that he 
reasonably believes it necessary to 
prevent what he reasonably believes to be 
the escape of a prisoner from a detention 
facility.

(3) "Detention facility" means any 
place used for the confinement, pursuant 
to law, of a person:

a. Charged with or convicted of an 
offense; or

b. Charged with being or adjudicated a 
youthful offender, a neglected minor or 
juvenile delinquent; or
c. Held for extradition; or
d. Otherwise confined pursuant to an 

order of a criminal court. (Acts 1977, 
No. 607, p. 812, § 630; Acts 1979, No. 
79-599, p. 1060, § 1)

19



APPENDIX C
IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

NO. 84-7571

DARRYL PRUITT,
(PLAINTIFF)-APPELLEE 
VS.

CITY OF MONTGOMERY AND LESTER G. KIDD,
(DEFENDANT)-APPELLANTS

AN APPEAL FROM THE UNITED STATES 
DISTRICT COURT FOR THE MIDDLE DISTRICT

OF ALABAMA
(CIVIL ACTION NO. 83-T-903-N)

ON MOTION TO INTERVENE BY THE STATE 
AND THE ATTORNEY GENERAL OF ALABAMA

(28 U.S.C. 2403)
MOTION OF THE STATE OF ALABAMA AND

CHARLES A. GRADDICK, ATTORNEY GENERAL,
UNDER 28 U.S.C. 2403, TO INTERVENE
FOR THE SOLE PURPOSE OF DEFENDING THE

CONSTITUTIONALITY OF SECTION 13A-3-27,
CODE OF ALABAMA, 1975 AND THE PUBLIC

INTEREST OF THE PEOPLE OF ALABAMA

20



Come the State of Alabama and 
Charles A. Graddick, Attorney General of 
Alabama, and move to intervene in the 
above styled cause under Title 28, United 
States Code, Section 2403 for the sole 
purpose of defending the Constitution­
ality of Title 13A, Section 13A-3-27,
Code of Alabama, 1975 and the public 
interest of the People of the State of 
Alabama. The grounds for this motion are 
as follows;

1. Your movant, Charles A. Graddick, 
is the duly elected Attorney General of 
Alabama.

2. In the instant case the District 
Court ruled that Section 13A-3-27, Code 
of Alabama, 1975, is unconstitutional to 
the extent that it excuses the use of 
deadly force by a police officer, where 
such force is necessary to overcome

21



resistance to lawful arrest for a felony, 
in situations where the officer has no 
"...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 
harm...." (Mns. Op. p. 3).

3. The public interest of the People 
of Alabama, including the protection of 
life, the control of violence and the 
advancement of the Rule of Law, requires 
that clear limits be set by the law on 
the nature and extent of force which is 
justified in overcoming resistance to a 
lawful arrest. Such limits must be 
susceptible to practical application in 
emergency situations where police 
officers must make quick decisions based 
on a minimum of information.

22



4. Section 13A-3-27, Code of 
Alabama^ 1975  ̂ represents the State of 
Alabama's effort to set such limits. 
Under Section 13A-3-27 prosepective 
arrestees know the exact limits of the 
force which may be used against them, 
should they choose to resist arrest, and 
police officers know the exact extent to 
which the law will hold them justified, 
if they use force to overcome resistance 
to a lawful arrest.

5. Section 13A-3-27, Code of 
Alabama, 1975 is constitutional

6. This case was docketed into this 
Honorable Court on September 5, 1984.

7. The record has not been filed in 
this case and is not due until sometime 
in October.

23



Therefore, the premises considered, 
your movants pray that this Honorable 
Court will allow them to intervene in 
this cause for the limited purposes set
out above.

Respectfully submitted.

/s/ Charles A. Graddick 
CHARLES A. GRADDICK 
ATTORNEY GENERAL

/s/ Joseph G» L. Marston III 
ASSISTANT ATTORNEY GENERAL 
ATTORNEY FOR MOVANTS

24



CERTIFICATE OF SERVICE 
I, Joseph G. L. Marston III, 

Assistant Attorney General of Alabama and 
attorney for the movants herein, do 
hereby certify that on this 14th day of 
September, 1984, I did serve copies of 
the foregoing on the attorneys for the 
parties by mailing the same to them first 
class postage prepaid and addressed as 
follows:

Honorable Robert C. Black 
Attorney at Law 
P. O. Box 116
Montgomery, Alabama 36195-2401
Honorable N. Gunter Guy 
Attorney at Law 
City of Montgomery 
P. O. Box 1111 
Montgomery, Alabama 36192
Honorable Ira B. Burnin &
Honorable Dennis Charles Sweet III Attorneys at Law 
P. O. Box 2087
Montgomery, Alabama 36102-2087

/s/ Joseph G. L. Marston III 
ASSISTANT ATTORNEY GENERAL

25



ADDRESS OF COUNSEL:
Office of the Attorney General 
250 Administrative Building 
64 North Union Street 
Montgomery, Alabama 36130 
(205) 834-5150

26



APPENDIX D
IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

NO. 84-7571

DARRYL PRUITT,

Plaintiff-Appellee,
versus
THE CITY OF MONTGOMERY, 
ALABAMA, et al.,

Defendants-Appellants

On Appeal from the United States 
District Court for the Middle 

District of Alabama
O R D E R :

The motion of the State and Attorney 
General of Alabama for leave to intervene
is granted.

/s/ Robert R. Vance________
UNITED STATES CIRCUIT JUDGE

27



APPENDIX E
IN THE UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

CITY OF MONTGOMERY, 
ALABAMA, ) 

)Defendant-Appellant,)
vs.
DARRYL PRUITT,

Plaintiff-Appellee. )

)
) No. 84-7571
)
)
)

MOTION FOR STAY OF PROCEEDINGS 
ON APPEAL

Now comes the appellee, Darryl 
Pruitt, and moves that this Court stay 
the proceedings on appeal until the U.S. 
Supreme Court issues its decision in 
Memphis Police Department v. Garner,
U-S. ___, 104 S.Ct. 1489 (1984) (granting
cert.), and its companion case. State of
Tennessee v. Garner, ___ U.S. ___, 104
S.Ct. 1589 (1984) (prob. juris, noted).

28



In support of his motion, appellee 
states:

1. The Garner litigation, pending in 
the U.S. Supreme Court, presents an issue 
which controls the disposition of this 
case, namely, whether the U.S. 
Constitution forbids law enforcement 
officers from using deadly force to 
arrest suspected felons who are not 
dangerous. In Garner v. Memphis Police 
Department, 710 F.2d 240 (6th Cir. 1983), 
the U.S. Court of Appeals for the Sixth 
Circuit held that the use of deadly force 
in such circumstances is unconstitution­
al. The Memphis Police Department, 
joined by the State of Tennessee, 
appealed that ruling to the U.S. Supreme 
Court, which granted certiorari on March 
19, 1984. Oral argument in the case is 
scheduled for October 30, 1984. A

29



decision is anticipated by March of next
year

2. The decision of the district
court challenged in the instant case 
rests on the same legal proposition at 
issue in Garner. The instant case 
concerns the shooting of a black teenager 
who was allegedly fleeing from the scene 
of a burglary. A City of Montgomery 
police officer fired two shotgun blasts 
at the plaintiff, leaving him paralyzed 
in one leg. (The police tip that a 
burglary was in progress turned out to be 
mistaken. No burglary was in progress or 
had occurred). The district court 
granted partial summary judgment against 
the City of Montgomery, finding that 
plaintiff had been shot pursuant to an 
unlawful City policy that permitted 
police officers to use deadly force to 
arrest non-dangerous felons.

30



Relying on its decision in Ayler v. 
Hopper, 532 F.Supp. 198 (M.D.Ala., 1981), 
the district court held that "the use of 
deadly force to stop a fleeing ... felon 
constituteCs] a civil rights violation 
actionable under §1983 'unless the 
[police] 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 harm." Pruitt v. City of 
Montgomery, No. 83-T-903-N, slip. op. at 
3 (June 12, 1984) (order granting partial 
summary judgment).^* The court found 
that the defendant City's shooting policy 
did not conform to the standard laid down 
in Ayler. Moreover, the court found that 
no genuine issue of fact existed

^• A copy of the court's order and a 
later amendment to the order is attached 
to this motion.

31



concerning whether the officer who shot 
plaintiff believed that his use of deadly 
force was necessary to prevent death or 
great bodily harm. The court wrote:

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. Kidd's use of deadly 
force under these circumstances 
... violated Pruitt's civil 
rights.

Id. at 4. The court therefore granted 
summary judgment in the plaintiff's favor 
on the issue of liability. A jury later 
awarded plaintiff damages in the amount 
of $100,000.

3. Because the outcome of Garner 
will have a profound impact on the law 
that controls this case, plaintiff 
submits that it would be appropriate for 
this Court to stay the instant appeal

32



until a decision is issued in Garner. It 
would require a substantial investment of 
time and resources for the parties to 
brief, and for this Court to decide, the 
determinative question in this case of 
whether it violates the constitution for 
a city to permit its police officers to 
use deadly force to arrest non-dangerous 
felons. Because in the end this Court's 
resolution of this issue will be 
controlled by the U.S. Supreme Court's 
decision in Garner, the expenditure of 
such time and resources will not 
materially advance this litigation.

WHEREFORE, plaintiff prays that this 
Court enter an order staying the instant 
proceedings until the U.S. Supreme Court 
issues a decision in the Garner 
litigation.

33



Respectfully submitted,

/s/ Dennis Sweet
IRA A. BURNIM 
DENNIS SWEET 
MORRIS DEESPost Office Box 2087 

Montgomery, AL 36103-2087 
205 264-0286

ATTORNEYS FOR APPELLEE

CERTIFICATE OF SERVICE 
I hereby certify that a copy of the 

foregoing has been served upon counsel 
for appellants and upon the Attorney 
General of the State of Alabama by first 
class U.S. mail, this 11th day of 
October, 1984.

/s/ Dennis Sweet
Attorney for Appellee

34



CERTIFICATE OF SERVICE
I, Joseph G. L. Marston III, an

Assistant Attorney General of Alabama, a
member of the Bar of the Supreme Court of
the United States and one of the
Attorneys for Charles A. Graddick,
Attorney General and the State of
Al^ama, do hereby certify that on this

day of November, 1984, I did serve
the requisite number of copies of the
foregoing on the Attorneys for all of the
other parties in the Court of Appeals, by
mailing the same to them first-class
postage prepaid and addressed as follows;

Honorable Robert C. Black 
Attorney at Law 
P. O. Box 116
Montgomery, Alabama 36195-2401
Honorable N. Gunter Guy 
Attorney at Law 
City of Montgomery 
P. O. Box 1111 
Montgomery, Alabama 36192

35



Honorable Ira B. Burnin & 
Honorable Dennis Charles Sweet III 
Attorneys at Law 
P. O. Box 2087Montgomery, Alabama 36102-2087

G.""L. MARTSON III
;tant attorney general

ADDRESS OF COUNSEL;
Office of the Attorney General 
250 Administrative Building 
64 North Union Street 
Montgomery, Alabama 36130 
(205) 834-5150

36



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