Order Granting Motion in Limine

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An?Z3 3  25 A H -
T,n. m? iraiTED ST4T(ESp.?;p,f̂ .:i'?MEF!'.TM THE DISTRICT COURT OF THE UNiir. U. S. D;c:?.iCT CMr̂ TINTHEDIST N 0 R T H E ^ S | | W S 1 ^ < | «

m i d d l e district of ALABAMA,

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CIVIL ACTION NO. 80-341-N

EUGENE AYLER, etc.,
Plaintiff,

V.

JOSEPH HOPPER. Deputy

sued in his indxvxdual 
capacity,

Defendant.
g R n E R

■ - . .  before th e 'c IJ t  on the p la in t i f f s  February

This cause rs rhe plaintiff
25. 1981. "fitst motron xn  ̂ alternatively,
requests a decision by plaintiffs request

prior to ,^,,;^ated that ■'because it is
that the jury xn  ̂ statute. Alaba2 a_Co^
unconstitutional. Alabama s ^ defendant Hopper to use
S 13A-3-27 (Supp. 1980)1 dx no ^

jaedly fotce to _ s  that unless the
-  Stounds for the ^  te the
court's decxsxon ^ least prior to closing argument, the
parties prior t t -  n .  .^le

plaintiff, wxll X p^,3ant
■ prepare adequately his case fo

adequately his argument to and briefs of the parties
consideration of the motxon. .

in connection ,,ailion on the plaintiffs
opinion that the motxon for a p
requested instruction  ̂ .aquested inst^ction.

Accordingly, as to t e j^^.^^tion must be refused,
the decision of the Court xs that



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In this case, the plaintiff seeks recovery from the defendant on 
essentially two causes of action: (1) bis federal cause of action
unvler 42 U.S.C. § 1983 for deprivation of a constitutional right 
under color of state law, and (2) his pendent state cause of action 
xjnder Ala. Code § 6-5-410 for wrongful death.

As to the first, section 1983 cause of action, it has long 
been established that in interpreting the scope of section 1983, 
courts are

not botmd by the state law of torts or the 
defenses of privilege that law provides. In 
an unbroken line of Supreme Court cases which 
includes Ex parte Virgihia, 100 U.S. 339,
346, 25 L.Ed. b'76 a H 7 9 V̂ njnited States y .
Classic, 313 U.S. 299, 326, 61 S.Ct. iuoi,85 LTEH:. 1368 (1941); Screws v. United States^,
325 U.S. 91, 109-11, 65 S.Ct. 1031, 89 L.Ed.1495 (1945); Williams v. United States, 341 
U.S. 97, 71 STCt. 576, 95 L.Ed. 7/4 (1951);.

■ Monroe v. Pape, 365 U.S. 167, 183-87, 81 S.Ct.
473, 5 L.Ed.2d 492 n q 6 1 ^ Pierson v. Rax,
386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed. Ztta 
C1967) . and Scheiier v. Ehodes, 416 U.S. 232,
237-38, 94 S.Ct. 1683, 40 LTEd.2d 90 (1974), 
the conduct of police officers and other 
state officials has, both civilly (Monroe,
Pierson, Scheuer) and criminally (Classic,
Screws, Williams) , been held subj ect to 
standards demanded by the Constitution of ̂ 
the United States, regardless of approbation by 
state law.

Jones V. Marshall, 528 F.2d 132,- 137 (2d Cir. 1975) (footnote 
omitted). As the Fifth Circuit recently stated, the question 
for decision in a section 1983 action is "whether [the defendant s] 
conduct— independent of its lawfulness or unlawfulness at state 
law— was sufficiently egregious as to be constitutionally' 
tortious." Williams v. Eelley. 624 F.2d 695, 697 (5th Cir. 1980). 
The existence of a state statute, regulation or policy purporting 
to authorize allegedly constitutionally tortious conduct is not 
relevant to the determination of whether such conduct is in fact 
constitutionally tortious. Such a state statute, etc., becomes 
relevant in a section 1983 action only insofar as, a constitutional 
deprivation haying been established, the statute tends to support

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or undercut a defense of good faith inmunity. gee> / WillTainh _v. •
Board- of Regents. 629 F.2d 993 (5th Cir. 1980). As is well 
established, a state official such as the defendant here does not 
enjoy good faith inununity from liability for damages under section 
1983 (1) "if he knew or reasonably should have kno\m that the actxon 
he took within his sphere of official responsibility would violate 
the constitutional rights of the [person] affected.’̂ W o o ^ .  
Strickland. 420 U.S. 308, 322, 95 S.Ct, 992, 1001 (1975);- see. e_̂ ., 
Cruz V. Beto. 603 F.2d 1178, 1185 (5th Cir. 1979); or (2) "if he 
took the action with the malicious intention to c<a.use a deprivat* 
of constitutional rights or other injury to the [person]," Wood_v. 
Strickland.- supra, 420 U.S. at 322. 95 S.Ct. at 1001; see, e^ .
Cruz V. Beto. supra, 603 F.2d at 1185-86. The first condition is 
commonly said to embody a test for objective good faith, and the 
second a test for ‘subjective- good faith. A state statute authori­
zing or prohibiting certain conduct might be relevant evxdence on 
the question of whether the asserted unconstitutionality of the . 
conduct was 'clearly established,’ a determination essential to a 
finding as to ‘objective’ good faith, gee •generally  Frocunxer jv. . 
Navarette. 434 U.S. 555, 98 S.Ct. 855 (1978). Such a statute mxght 
also be relevant evidence on the question of a defendant’s actual 
intent, a determination essential to a finding as to subjective 
good faith. In either case, the relevant consideration is not the 
constitutionality of the statute but rather whether.a defendant 

■ believed and should reasonably have believed that the statute was 
valid. Thus, even if a state statute is unconstitutional, a 
defendant relying on the statute in ’objective’ and ’subjective’ good 
faith is entitled to immunity from liability for damages under 
section 1933. Because the plaintiff’s requested instruction suggests 
otherwise, it must, \J±th regard to the plaintiff’s •sectxon 1983 
claim, be refused.

Similarly, as to state causes of action for^^rongful death.

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V.

such as the one alleged by the plaintiff in this case, the princxple 
appears to be well established that reliance on a state statute 
authorizing an allegedly wrongful act will constitute a defense to 
an action based on that act, even if the statute itself is 
unconstitutional, if the defendant charged with the act believed and 
had reason to believe that the statute authorizing it was valid.
..a Pierson v. Ray, 386 U.S. 547. 555. 87 S.Ct. 1213. 1218 (1967).
Again, because the plaintiff’s requested instruction suggests 
otherr̂ ise., it must, with regard to the plaintiff’s wrongful death
cause of action, also be refused.

Presumably the plaintiff is familiar with the above and
actually seeks by. his first motion in limine an indication of what 
the Court understands to be the constitutional standards governing 
the plaintiff’s section 1983 claim and the defendant’s asserted 
good faith immunity defense. Because these standards have been the 
subject of extensive briefs by the parties, and because pretrial 
knowledge of the Court’s understanding of these standards is likely 
to be crucial to the effective prosecution and defense of this case 
and in general to its orderly disposition, the Court finds it 
appropriate and desirable to inform the parties at this time of its
understanding of these standards.

It is clear to the Court that the use of deadly force by 
a prison official to stop an escaping felon is constitutionally 
tortious unless the official has good reason to believe that the use 
of such force is necessary to ■ prevent imminent, or at least a sub­
stantial likelihood of, death or great bodily harm. As the Chief 
Justice wrote in his dissent in Bivens v.' Six Unknown' Agen^, 403 
U.S. 388, 91 S.Ct. 1999 (1971):

Freeing either a tiger or a mouse in a 
schoolroom is an illegal act, but no rational 
person would suggest that these two acts should 
be punished in the same way. From time to time 
judges have occasion to pass on regulations 
governing police procedures. I wonder what would 
be the judicial response to a police order 
authorizing "shoot to kill" with respect to 
every fugitive. It is easy to predict our

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collective wrath and outrage. We, xn 
common with all rational minds, would^say 
that the police response must^relate to 
the gravity and need; that a shoot 
order might conceivably be tolerable o prevent the escape of a convxcted kxller 
but surely not for a car thief, a 
pickpocket or a shoplifter.

403 U.S. at 419, 91 S.Ct. at 2016 (Burger, C.J. , dxssentxng).
See, e.g., Hebah v. United States, 456 F.2d 696, 709 (Ct. Cl. 1972) 
("standard by which an officer’s conduct with respect to the use 
.of deadly force is measured is whether he had grounds to reasonably 
believe that his life or the lives of others were in immediate 
danger of death or serious bodily harm.. .  Cf: gaul v. H u t ^ .
304 F. Supp. 124, 131-32 (E.D. La. 1969) (Rubin, J.) (construxng 
Louisiana law). ' gee generally Courtney^.-'Reeves, 635 F.2d 326, 329 
(5th Cir. 1981) (it is clear that the constitutional right to due 
process of law includes not only the right to be tried in a court 
of law for alleged offenses against the state, but also a right not 
to be treated with unreasonable, unnecessary or unprovoked force by 
those charged by the state with the duty of keeping accused and 
convicted offenders in custody);' George v. Evan£, 633 F.2d 413, 416 
(5th Cir. 1980). To the extent that Ala. Code § 13A-3-27 (Supp. 
1980) p^ o r t s  to authorize the use of deadly force in situations

force-is not necessary to prevent i m m ^ n t , 
likelihood of^ death or bodily harm^ras 

rl^r^tlt^^trTIrtllnly appealto do— * it is unconstxtutional..

* Compare Ala. Code § 13A-3-27 (Supp. 1980) with Ala. Code 
§ 13A-3-27 (1977), repealed 1979. The former statute provided in

part that:
(b) A peace officer is justified in using deadly 
nhysical force upon another person...only when he 
reasonably believes it is necessary:(1) To make an arrest or to prevent the escape 

from custody of a person whom he reasonably
believes: ,a. Has committed or attempted to co^xt a 

felony involving the use of deadly physxcal
force, or , ^ ^b. Is attempting to escape by the use of a

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c f

The above stated principle will govern the determination of 
whether there occurred in this case a deprivation of a constitutional 
right. However, because the Court cannot fairly say that this 
principle was 'clearly established’ at the time of Arthur Ayler’s 
death, the principle cannot be used to evaluate the defendant’s claim 
of good faith immunity. ' See generaXly Frocuhief v. ITavarette, Supra. 

Accordingly, it is ORDERED:
(1) That the plaintiff's motion in limine, to the extent that 

it re'^uests that this Court decide prior to trial whether it will 
grant the plaintiff’s jury instruction on the xmconstitutionality 
of Alabama's 'fleeing felon' statute, be and the same is hereby
granted; and . >

(2) That the plaintiff's jury instruction on the unconsti­
tutionality of Alabama’s 'fleeing felon’ statute be and the same
is hereby refused. .

DONE, this 29th day of April, 1981. * *

UNITED STATES DISTRICT JUDGE

deadly weapon, orc. Otherwise indicates that he is likely to 
endanger hxmian life or to inflict serious 
physical injury \anless apprehended without 
delay---

* « t-^ A 4%
(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 the maximum security portion of 

' any detention facility, or from armed escort or 
guard.

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