Wiley v. Memphis Police Department Court Opinion

    WILKY V. MEMP
<’llc as 518 F

il

Martha WILEY, mother and next of kin 
of Fred I,ee Ilcrry, a l)eceas«“<l minor, 

Plaintiff-Appellant,
V.

MEMPHIS POLICE DEPARTMENT et 
al., Defendants-Appellees.

No. 75-2.321.
United States Court of Appeals, 

Sixth Circuit.
Argued Oct. 13, 1976.
Decided Feb. 10, 1977.

Mother of boy who was shot and killed 
while fleeing scene of burglary brought civ­
il rights action against city, its mayor and 
police department, city police officers, and 
others. The United States District Court 
for the Western District of Tennessee, Har­
ry W. Wellford, J., entered judgment in 
favor of defendants, and plaintiff appealed. 
The Court of Appeals, Weick, Circuit Judge, 
held that Tennessee statute authorizing po­
lice officer to use deadly force if necessary 
to effect arrest of felon was not unconstitu­
tional; that police officer had a right to 
a.ssume that statute was constitutional and 
was not required to assume that burglars 
were unarmed, especially since sporting 
goods store burglarized sold weapons and 
ammunition; that there was substantial ev­
idence to support factual findings of district 
court that police officers were justified in 
using deadly force under Tennessee law; 
and that there was substantial evidence 
supporting findings that neither police offi­
cers nor other defendants discriminated 
against plaintiff or against her son because 
of their race.

Affirmed.
McCree, Circuit Judge, filed a concur­

ring opinion.

1. Civil Rights 13.10
City police officers had a right to as­

sume that Tennessee statute which autho­
rized them to use all means necessary to 
effect arrest was constitutional where, at 
time police officers shot and killed fleeing

Ills  POLICE DEIT. 1247
.2(1 1247 (1977)

burglar wborn they were pursuing, federal 
courts had ruled that state statute was con­
stitutional and no court hail ever ruled that 
Tennessee statute, or any similar statute, 
was unconstitutional. T.C.A. § 40 808; 42 
U.S.C.A. §§ 1981, 1983, 1985, 1986, 1988; 
U.S.C.A.Const. Amends. 4-6, 8, 13, 14.
2. Arrest e=>68

Tennessee statute authorizing police of­
ficer to use deadly force if necessary to 
effect arrest of a felon was constitutional. 
U.S.C.A.Const. Amends. 4-6, 8, 13, 14.
3. Death <s=> 103(3)

Under Tennessee law, determination of 
whether there was a reasonable necessity 
for killing of felon by police officer to ef­
fect arrest of felon and determination of 
reasonableness of grounds upon which po­
lice officer acted in shooting at such felon 
are questions for the jury. T.C.A. § 40-808.
4. .\rrest <3=63.3

Under Tennes.see law, burglars who 
were still being hotly pursued by police as 
they were fleeing from scene of burglary 
were regarded as being engaged in the com­
mission of the burglary at the time they 
were pursued.
5. Civil Rights <s=» 13.13(3)

In civil rights action against city, police 
officers, and others, in which mother sought 
to recover damages for wrongful death of 
her 16-year-old son who was killed by police 
while fleeing scene of burglary, there was 
substantial evidence to support district 
court's finding that police officers acted 
reasonably and out of necessity in using 
deadly force to effect arrest of the son, in 
view of evidence indicating that police offi­
cer saw burglars in sporting goods store at 
time of burglary, that sporting goods store 
sold firearms and ammunition, and that 
burglars probably would have escaped if 
police officers had not fired upon them. 42 
U.S.C.A. §§ 1981, 1983, 1985, 1986, 1988; 
U.S.C.A.Const. Amends. 4 6, 8, 13, 14; 
T.ttA. § 40 808.
6. Federal Courl.s <3=178

f Hiici[)alities may be sued directly in 
civil ghts action for F'ourteenth Amend- 
meiil iolations through statute giving fed-

■ U



1248 r.i8 > uiorouiKK, 2d skimks

eral courts jurisdiction over certain cases 
involvinfj federal law. 28 II.S.C.A. 
§ 1331(a); lI.S.f'.A.tanist. Amend. 11; 42 
(J.S.C.A. §§ 1981, 1983, 1985, 198(1, 1988.
7. Civil Rights <5== 13.13(3)

In civil rights action brought against 
city, police officers, and others, in which 
mother sought to recover damages for 
wrongful death of her 16-year-old son, who 
was killed by police while fleeing scene of 
burglary, there was substantial evidence to 
support finding that defendants had not 
discriminated against her or against her son 
because of their race, in view of absence of 
evidence showing racial animus or basis un­
derlying policy authorizing police officers to 
use deadly force if neces.sary to effect ar­
rest of a felon. 42 U.S.C.A. §§ 1981, 1983, 
1985, 1986, 1988; U.S.C.A.Const. Amends. 
13, 14; T.C.A. § 40 808.

G. Philii) Arnold, Ratner, Sugarmon, Lu­
cas & Salky, Memphis, Tenn., William K. 
Caldwell, Paul R. Dimond, Washington, 
D.C., Jack Greenberg, New York City, for 
plaintiff-ap|iellant.

Arthur J. Shea, Charles V. Holmes, Asst. 
City Attys., Memphis, Tenn., for defend- 
ants-appellees.

Robert S. Catz, Howard S. Scher, Gerald 
J. Wein, Urban Law Institute, Inc., Wash­
ington, U.C., amicus curiae.

Before WBIICK and McCRPlK, Circuit 
Judges, and MILLPJR,* Judge of the United 
States Court of Customs and Patent Ap­
peals.

Wp]ICK, Circuit Judge.
This is an appeal from a judgment for tlû  

defendants after a non-jury trial of an ac­
tion seeking $1,000,000 damages and declar­
atory relief, brought by Martha Wiley 
against police officers and municipal de­
fendants. Wiley sued for the alleged 
wrongful death of her son, Fredilie Lee 
Berry, who was nearing his seventeenth 
birthday when he was shot and killed in the

night sinison while fleeing frotn a sporting 
goods store in wdiich the police officers had 
observed him anil two companions in the 
comiiussion of a burglary.

Jurisdiction of the Court was invoked un­
der 28 U.S.C. §§ 1331(a), 1343(3), and 
1343(4) for alleged causes of action under 42 
U.S.C. §§ 1981, 1983, 1985, 1986, and 1988, 
and under the B’ourth, Fifth, Sixth, Eighth, 
Thirteenth and Fourteenth Amendment to 
the Constitution. Pendent jurisdiction was 
invoked seeking similar relief under Ten­
nessee law.

Plaintiff challenged the deadly force (xili- 
cy of the City of Memphis and the Memphis 
Police Department (MPU), which jwlicy au­
thorized police officers to use deadly force 
whenever they deemed it necessary to ef­
fect the arrest of a felon. Plaintiff claimed 
that such [lolicy was a violation of the con­
stitutional rights of her decedent. The de­
fense was that such policy was specifically 
authorized by and conformed to Tenn. Code 
Ann. § 40 808, which provides;

Resist!tncc to Officer.—If, after notice 
of the intention to arrest the defendant, 
he either flee or forcibly resist, the offi­
cer may use all the necessary means to 
I’ffect the arrest.
Jury was waived and the trial was held 

by the Court over a period of four days. 
The Court gave careful consideration to all 
of the issues and handed down a Memoran­
dum Opinion consisting of twenty-two 
pages, in which it made findings of fact and 
adopted conclusions of law. The findings 
with respect to the burglary, the attempts 
of the officers to arrest the burglars, and 
the shooting, are a|)|)ended hereto as Exhib­
it “A”.

Briefly, the facts are that on the night of 
January 8, 1972, officers Calliham, Roleson, 
('.ox and Richards responded to a radio dis­
patch about prowlers inside a sporting 
goods store in Memphis, Tennessee. Offi­
cer Calliham wi ld to the front door of the 
stori; and saw three black males inside, in 
the area of a soft drink machine. Officer

ot fh t ' U n ite d  S tu trs  (.'ourt o f C iis tiM ijs  and f^UeiU



WILKY V. MEMPHIS POUCE DEIT.
C ite  a s  548 K 2d  1247 (1977)

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Callihani yelled to the males lo come out; 
they looked uji and dispersed. Officers Cox 
and Richards were informed by t'allihain as 
to what he had seen, and those officers 
drove to the northeast area behind the 
building. As they were getting out of their 
car they saw two black males run from the 
rear of the south portion of the building. It 
was raining but the storage lot was lighted 
and the officers could see the two youths 
who either climbed over or went under the 
fence into a large drainage ditch. As found 
by the Court, it was “dark and obscure" 
along the drainage ditch, and the area was 
cluttered with brush and debris. Officers 
Richards and Cox repeatedly yelled for the 
fleeing youths to “halt,” but they jiaid no 
heed and kept on running. Roth officers 
decided to fire at the youths. A subsequent 
search of the area revealed Freddie Lee 
Berry, plaintiff’s decedent, critically 
wounded, lying apiiroxirnately 208 feet 
down the ditch from the jioint where Cox 
and Richards had fired. The officers’ inves­
tigation revealed also a “stash” consisting 
of two shotguns and ammunition taken 
from the sporting goods store and jilaced in 
the ditch near the spot where Rerry was 
found. The second suspect escaped but la­
ter surrendered at police headquarters. 
The third youth was captured when he was 
found hiding in the sjiorting goods store.

The complaint named as defendants the 
Memphis Police Department (MPD), the 
City of Memphis, Tennessee, Rill Price, 
Chief of Police of Memphis, Wyeth Chan­
dler, Mayor of Memphis, Henry Loeb, for­
mer Memphis Mayor, .M. .1. Calliham, R. I). 
Roleson, B. J. Cox, J. K. Richards, W. W. 
Wannamaker, and Jule Ray, all Police Offi­
cers of the City of Memphis, and .John Doe 
and others similarly situated.

The complaint charged that MPD, the 
City, the Chief of Police, the Mayor and 
former Mayor, all were responsible for the 
policies, practices, customs and usages jier- 
taining to the use of firearms by the police 
officers, which jiolicies violated the consti­
tutional rights of plaintiff’s decedent re­
sulting in his death.

.ns f 2d-

The facts as found by the District .fudge, 
however, were that the.se policies, practices, 
customs and usages were autliori/.ed by the 
Legislalur(( of 'retuiessee in its enactment 
more than one hundred years .ago, of the 
present language of T.C.A. § 40 808, here­
inabove set forth. This language appeared 
as Section 5040 of the Tennessee Code of 
1858, the first official code of Tennessee, 
and embodied the common law of that 
State. Love v. Ba.s.s, 145 Tenn. 522, 529, 238 
S.W.94 (1921); Reneau v. State, 70 Tenn. 
720 (1879).

The Court made the following findings 
with res|)ect to |)laintiff’s decedent:

Rerry, beginning at a very early age, 
had been the subject of frcapient proceed­
ings in the Meni|)his .Juvenile Court, in­
cluding two formal adjudications in the 
nature of criminal proceedings. He was 
found guilty of burglary at age 13 and 
|)laced on jirobation, but a year later he 
was expressly found to have committed a 
delinquent act and ordered as a delin- 
(pjent to a slate juvenile institution in­
definitely. After release, he was later 
the subject of other charges, including 
school problems similar in character to 
those preceding commitment. [Footnotes 
omitted].

(Ai>p. 0002:18)
The Court further found that the officers 

did not know that two of the burglars were 
juveniles, and that the officers acted in 
good faith. The Court slated:

Roth defendants Cox and Richards 
were familiar with the SR.M Co. location; 
both had investigated prior burglaries 
there; they had driven around the build­
ing through its front parking lot onto 
Ferguson Street; and they had driven lo 
the back of the building through the ad­
jacent parking area lo tlu; south and be­
hind neighboring buildings to the south. 
Tlu;y both knew about the ditch and the 
direction in which it ran and the fence 
surrounding it. At the time there was 
considerable brush and bushes in the 
area, and d(4)ris in the ditch. It was 
possible for Cox and Richards lo have 
Iriven along side the ditch by proceeding

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1250 548 FfOl :KAL KKl'ORTKH, 2d SKFilES

back on Ferguson, turning onto Hellevuc 
and going around to the parking area to 
the south nearby the place the youths 
were running down the ditch, but it was 
likely they would have escaped just as 
Lurry actually did that very night.

Under the peculiar circumstances— 
night darkness, rain, intervening barbed 
wire fences, the distance between them 
and the suspects and availability of cover, 
neither Cox nor Richards could reason­
ably expect to chase or otherwise catch or 
capture the fleeing felons. They could 
not be sure the suspects were not armed. 
The court finds that these alternatives to 
the use of deadly force in the circum­
stances of this case were not available to 
defendants Cox and Richards, if they 
were to attempt to apprehend Berry and 
his companion in crime.

Both officers Cox and Richards testi­
fied that they shot without attempting 
merely to wound or incapacitate the flee­
ing two, and that they were trained that 
whenever they use their firearms to 
shoot to kill.” At the distance involved 

and under these circumstances, any at­
tempt merely to cripple or to wound 
would probably have been ineffectual. 
Defendant Lux denied that Memphis po­
lice were, in fact, instructed to shoot to 
kill in all fleeing suspect circumstances.
It would appear that they were instruct­
ed to fire at the torso.

(App. 000242-43) 
The defendants, Cox and Richards, em­

ployed the only practicable means availa­
ble to them under peculiarly difficult cir­
cumstances requiring split second judg­
ment to prevent the deliberate attempt to 
escape of one caught in the midst of a 
felonious burglary. Plaintiff failed to 
carry the burden of proving that Cox or 
Richards either knew or should have 
known that Berry was a juvenile. These 
officers could not surely have known 
whether defendants were or were not 
armed, and it later developed that stolen 
weapons were indeed nearby and availa­
ble to them. To ascribe to plaintiff’s 
counsel’s contentions under these facts

would be to recognize a felon’s constitu­
tional right to escape if the only reasona­
ble and practicable means to prevent it 
were to employ potentially lethal force by 
use of a firearm. This is indeed borne 
out by Lurry's successful escape under 
these identical circumstances. In a real 
sense, this court is being called upon by 
plaintiff to rule the allowable Tennessee 
law procedures, more stringently applied 
in Memphis by the MPD, to be declared 
unconstitutional in the face of a three 
judge court’s contrary determination less 
than a year before this episode. This 
court agrees with the opinion there ex­
pressed, 323 F.Supp. 1075, that ‘‘this is a 
policy decision for the Tennessee Legisla­
ture or perhaps the Tennessee courts and 
not for federal courts in the guise of 
constitutional adjudication. Compare the 
concurring opinion of Judge McCree in 
Beech V. Meliincon, supra. In any event, 
Cox cannot be held liable because his 
actions cause no harm or damage to 
plaintiff. Berry died shortly after he was 
shot without gaining consciousness. Nor 
can the court hold the other defendants 
liable under the circumstances for consti­
tutional or illegal deprivation of plain­
tiff’s rights. [Footnote omitted.]

(App. 000252-53) 
The constitutionality of T.C.A. § 40-808 

had already been upheld in this Circuit by a 
three-judge District Court consisting of Cir­
cuit Judge Harry Phillips and District 
Judges Bailey Brown and Robert M. 
McRae, Jr., in Cunningham v. Ellington, 323 
F.Supp. 1072 (W.D,Tenn.l971). In that case 
the statute was attacked in a case similar to 
the present one, involving the Memphis po­
lice, where the decedent was shot and killed 
by police officers who were investigating a 
burglary attem|)t and while he was fleeing 
from arrest by the 'officers. It was claimed 
that the statute was unconstitutional on its 
face because it permitted the use of cruel 
and unusual punishment in violation of the 
Eighth Amendment; that it was unconsti­
tutionally overbroad; that it was an uncon­
stitutional incursion with resj)ect to a [)er- 
son s right to a trial by jury, confrontation



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WILKY V. MKMl’ IIIS I’OLICK nKl>1'.
( i l c a s 5 4 8 I - .2 d  1247 ( l ‘J77 )

1251

of witnesses, assistance of counsel, etc.; 
that the statute vi,'ito,l thv il..c 
clause of the Four'.ei nth Arc.i it.v.v.i-.-.t

The Court stated at 1074 75:
It is agreed l>y all parties that, as con­

strued by the Tennessee courts, this stat­
ute means, in the [iresent context, that an 
officer may use force that may result in 
death in preventing the escape of a (ler- 
son that he is attempting to arrest if (1) 
he reasonably believes that the jierson 
has committed a felony and (2) he noti­
fies the person that he intends to arrest 
him and (3) he reasonably believes that 
no means less than such force will pre­
vent the escape. The parties also agree 
that, so construed, the statute merely 
states the common law. Renemi v. Slutc, 
70 Tenn. 720 (1879); Love v. Uiiss, 145 
Tenn. 522, 238 S.W. 94 (1921); Scar­
brough V. State, 168 Tenn. 106, 76 S.W.2d 
106 (1934); Johnson v. State, 173 Tenn. 
134, 114 S.W.2d 819 (1938).
With respect to the Flight!) Amendment 

the Court stated at 1075, “ . we
simply are not dealing with i)unishment.” 
The Court further held that the statute was 
not unconstitutionally vague and tluit it did 
not violate the F‘'ourteenth Amendment.

We considered the constitutionality of 
T.C.A. § 40-808 in another case. Beech v. 
Melancon, 465 F.2d 425 (6th Cir. 1972), cert, 
denied, 409 U.S. 1114, 93 S.Ct. 927, 34 
L.Ed.2d 696 (1973), wherein two robbers 
were shot and one of them killed by Mem­
phis police when they were attempting to 
rob a gas station and to esca|>e from the 
scene of the felonious activity. They had 
been informed that the defendants were 
police officers and hail been warned to halt, 
but they did not do so. In that case the 
single issue was whether the trial judge 
was clearly in error in concluding that the 
defendants were justified in the use of 
deadly force in order to ap|irehend the cul­
prits.

In finding that the District .Iiidge had 
evidence to justify his finding that the "of­
ficers used only the necessary means to 
effect the arrest,” this Court, with .Judge 
McCree concurring in the result, followed

and Cunningham v. Ellington, .supra, in uphohl-
i'Vg the constitutier'.ah.ty ef the statute

Ho\Mver, what is moiv ur.jMitarit is tin- 
fact that the Court stated at page 426;

In any event the police officers were 
entitled to assume the constitutionality of 
the Tennessee Statute. “State statutes 
like federiil ones are entitled to the pre- 
sumiition of constitutionality until their 
invalidity is judicially declared.” Davies 
Warehouse Company v. Bowles, 321 U.S. 
144, 153, 64 S.Ct. 474, 479, 88 L.Ed. 635 
(1944), and see also McDonald v. Board of 
Election, 394 U.S. 802, 808, 809, 89 S.Ct. 
1404, 22 L.Ed.2d 739 (1969); Davis v. 
Department of Labor, 317 U.S. 249, 257, 
63 S.Ct. 225, 87 L.Ed. 246 (1942).

m  In the present case, at the time the 
officers were pursuing the burglars in the 
dark of a rainy night, there was considera­
ble brush and bushes in the area, and debris 
in the ditch, and the officers did not have 
the opportunity or the time to ascertain 
whether the statute which authorized them 
to use all means necessary to effect the 
arrest was constitutional. They had a right 
to assume that the statute was constitution­
al. It had been twice so declared in this 
Circuit, first by the Ihree-Judge Court, and 
later by this Court, and its invalidity, or 
thiit of a similar statute, up to that time 
had never been declared by any Court. The 
plaintiff has not cited a single case to the 
contrary decided prior to the burglary in­
volved in the present case.

The officers knew that the sporting goods 
store sold weapons. They were not re- 
ipiired to assume that the burglars were 
unarmed and would not shoot at them. As 
a matter of fact, the “stash” of stolen arms 
and ammunition was found near the body 
of Berry where he had fallen. Although 
two of the burglars, unknown to the offi­
cers, were juveniles, they were undoubtedly 
iible not only to commit the burglary, but 
also to pul! the trigger of a gun and shoot 
and kill the officers.

In Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 
,868, 1881, 20 L.Ed.2d 889 (1968), the Su- 
reme Court said:

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1252 518 FEDER/ , REI'OKTER, 2d SERIES

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We are now concerned with more than 
the governmental interest in investigat­
ing crime; in addition, there is the more 
immediate interest of the police officer in 
taking steps to assure himself that the 
person with whom he is dealing is not 
armed with a weapon that could unex­
pectedly and fatally be used against him. 
Certainly it would be unreasonable to re­
quire that police officers take unneces­
sary risks in the j)erformance of their 
duties. American criminals have a long 
tradition of armed violence, and every 
year in this country many law enforce­
ment officers are killed in the line of 
duty, and thousands more are wounded.
See also Wolfcr v. Thaler, 525 F.2d 977 

(5th Cir. 1976), cert, denied, 425 U.S. 975, 96 
S.Ct. 2176, 48 L.Ed.2d 800 (1976); Jones v. 
Marshall, 528 F.2d 132 (2d Cir. 1975); Hil­
ton V. State, 348 A.2d 242 (Me.l975); Schu­
mann V. McGinn, 240 N.W.2d 525 (Minn. 
1976).

[2] The decision of the threc-Judge Dis­
trict Court in Cunningham v. Ellington, su­
pra, was followed in Mattis v. Schnarr, 404 
F.Supp. 643 (E.U.Mo.1975), where the 
Court, in considering a statute virtually 
identical with the Tennessee statute, stated 
at 651;

Again the Court notes that any classifi­
cation which would allow deadly force to 
be used against persons who have com­
mitted certain specified crimes, and not 
against other offenders would inevitably 
be subject to the same attack as plaintiff 
wages here. To abolish the use of deadly 
force altogether is to deprive the state 
and its citizens of their rights to security, 
safety and a feeling of protection. To 
pick and choose those crimes warranting 
the application of these statutes is the 
duty of the legislature. It involves a 
determination of the effect and serious­
ness of crimes on society and such a de­
termination lies exclusively within the 
province of the legislative branch. It is 
not the role of a federal judge to legislate 
for the people of a state.
The Court, in its opinion, cited similar 

statutes of thirty-four states authorizing

the use of such force, which use of force is 
sought to be held unconstitutional here. 
These statutes merely embodied the com­
mon law which has been in force for centu­
ries and has been universally recognized.

U()on ap[H!al to the Eighth Circuit, in 
Appeal No. 75 -1849, heard en banc, the 
Court in a four-to-three decision, reversed 
the District Court on December 1, 1976. 
The majority opinion rejected our decision 
in Beech v. Mclancon, supra ; the decision 
of the District Court in the present case; 
the decision of the three-Judge District 
Court in Cunningham v. Ellington, supra ; 
the Second Circuit decision in Jones v. Mar­
shall, supra ; and the Fifth Circuit decision 
in Wolfer v. Thaler, supra. It even errone­
ously stated 528 F.2d 141, n. 21 that the 
Court in Wolfer v. Thaler had held that the 
parents did not have standing to sue despite 
the statement in Wolfer (at 978, n. 1) that 
the |)arents did have standing.

The Eighth Circuit is the only Court to 
our knowledge which has ever held that 
such a statute, which is so necessary even to 
elementary law enforcement, is unconstitu­
tional. It extends to the felon unwarranted 
protection, at the expense of the unprotect­
ed public.

We agree with the dissent in the Eighth 
Circuit case {Mattis v. Schnarr), which was 
highly critical of the majority opinion for 
not following the decisions of other Circuits 
and for embarking on a new course which 
should have been left to the state legisla­
tures where it belongs.

The legislative bodies have a clear state 
interest in enacting laws to protect their 
own citizens against felons, and a right, if 
not a duty, to do so. W'hen the burglar 
escapes pursuit he is free to commit other 
felonies. The dissent appropriately pointed 
out:

In 1934 the ALI, in its First Restate­
ment of Torts, modified the common law 
principle permitting the use of deadly 
force to effect the arrest of a felon. Re­
st atenienl (First) o f Torts § 131 (1934). 
This modification was abandoned in 1948, 
however, and the common law rule was 
readopted. The 1966 Appendix to the



WIU;Y V. MKMIMUS POLICK DKIT.
c i t e  a s  548 F .2d 1247 (1977)

1253
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1 here, 
e com- 
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uit, in 

nc, the 
■versed

l, 1976. 
iecision 
lecision 
it case; 
District 
supra ; 
V. Mar- 
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ourt to 
Id that 
even to 
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Eighth 
ich was 
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Circuits 
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ct their 
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burglar 
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deadly

m. Re- 
(1934).

in 1948, 
ule was 

to the

Second Restalenient of Torts justifies 
this abandonment on the grounds that 
the modification contained in § 131 had, 
from its incejition, lacked any support 
other than dicta and argument by analo­
gy’
The dissent further states:

There is no constitutional right to com­
mit felonious offenses and to escape the 
consecpiences of those offenses. There is 
no constitutional right to flee from offi­
cers lawfully exercising their authority in 
apprehending fleeing felons.
The majority opinion of the Eighth Cir­

cuit in Mattis does not suggest how law 
enforcement officers are to make the on- 
the-spot constitutional analysis called for by 
its proposal and still react (piickly enough 
to meet the exigencies of an emergency 
situation. How can a police officer ever 
know, reasonably or otherwise, whether the 
felon will use force against others if he is 
not immediately apprehended? It is clearly 
the prerogative of the state legislature to 
decide whether such restrictions on the use 
of force are consonant with public policy.

The facts in this case are significantly 
different from the facts in Mattis v. 
Schnarr, supra. That case involved the 
burglary of the office of a golf driving 
range, while this case involved the burglary 
of a sporting goods store where weapons 
and ammunition were sold. The officers in 
the present case could have assumed, rea­
sonably, that the two young males might be 
armed and reasonably could have feared for 
their lives. Further, the “stash” of shot­
guns and ammunition found in the ditch 
near where the decedent was found, rein­
forces the fact that the officers might have 
been shot had they not reacted (juickly to 
the emergency.

It should always be remembered that 
both officers were shooting in the dark, 20H 
feet away from the youths, and that the 
youths were fast escaping. The bullet fired 
by the pistol of Officer Cox only grazed 
Berry, and Officer Richanis was able l( ,iit 
Berry, using a shotgun by which oidy oi of 
the pellets struck an<l killed him.

13] Under Tennessee law the determina­
tion of whether or not there was a reasona­
ble necessity for the killing, and the reason­
ableness of the grounds upon which the 
officer acted in shooting, are (piestions for 
the jury, IjOvo v. Bass, 145 Tenn. 522, 529, 
238 S.W. 94 (1921). The District Judge 
determined the.se factual issues against the 
plaintiff.

In Qualls v. Parrish. 534 F.2d 690 (6th 
Cir. 1976), this Court, in an opinion written 
by Judge McCree, cited Love v. Bass, supra, 
with a|)proval and held that the law of the 
state should be considered in determining 
the federal law to be fashioned to deter­
mine the liability of the officers. There the 
Court staterl at 694:

Our principal reason for agreeing with 
the district court that the Tennessee rule 
should be made the federal rule in this 
case is that a decision to the contrary 
would be unfair to an officer who relied, 
in good faith, upon the settled law of his 
state that relieved him from liability for 
the particular acts performed in his offi­
cial ca|)acity. Most of the state courts 
that have considered this question follow 
the old common law rule that deadly 
force may be used by a police officer only 
when he has reasonable grounds to l>e- 
lieve that the person he is attempting to 
arrest has committed a felony.

(41 There can be no question but that 
the officers in the present case had such 
reasonable grounds because they actually 
saw the burglars in the store as they were 
burglarizing the store. The officers pur­
sued the burglars as they were fleeing from 
the scene of their crime. Since the burglars 
were still being hotly pursued they are re­
garded as being engaged in the commission 
of the burglary at the time of their pursuit. 
Unita<i States v. Jarhoc, 513 F.2d 33 (8th 
Cir. 1975); Itnitcd Stales v. Von Boeder,
F.2<i 1004 (10th Cir. 1971).

[51 We are of the o|)inion that there was 
substantial evidence to su|)port the factual 
findings of the District Court and they are 
not clearly erroneous. The Court’s conclu­
sions of law are correct.

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1254 548 FEDERAL REl (Rl'ER, 2d SERIES

We are of the opinion further that MI’D, 
the City, the Mayor, ami the former Mayor, 
and the Chief of Police had the same ripht 
to rely on the law of Tennessee and the 
decisions of this Court and the decision of 
the three-Judge Court in formulating their 
policies. Also, they could rely on the pre­
sumption that the Tennessee statute was 
constitutional and on the fact that no court 
at that time had ever held that statute or a 
similar statute to be unconstitutional.

[6] The District Court did not exercise 
pendent jurisdiction although it stated that 
plaintiff’s state court claims would fail un­
der the decision which it reached. Plaintiff 
did not appeal from the Court’s refusal to 
exercise pendent jurisdiction, and therefore 
that issue is not before us. Likewise, the 
Court declined to find subjtH;t matter juris­
diction of plaintiff’s constitutional claims 
against the city, under 28 U.S.C. § 1331(a). 
We note here that this ruling was errone­
ous. Municipalities may be sued directly 
for Fourteenth Amendment violations 
through 28 U.S.C. § 1331(a). Anwn v. 
Dearborn, 532 F.2d 554 (6th Cir. 1976). The 
Court did, however, assume subject matter 
jurisdiction over the other defendants and 
did consider and decide the constitutional 
issue as well as the other issues in the case.

[7] The District Court held with respect 
to plaintiff’s claim of racial discrimination 
that “plaintiff has failed to persuade the 
court that under the circumstances of this 
case defendants have discriminated against 
her or against her son because of their 
race.”

Nor did the Court find a denial of equal 
protection when it said:

No racial animus or basis is shown to 
motivate the policy involved. Both white 
and black fleeing felons have been shown 
by plaintiff’s own proof to have been 
fired upon or shot by Memphis police as a 
mutter of last resort where otherwise ar­
rest cannot be reasonably accomplished 
and escape is inevitable, even in the case 
of so-called property crimes.

In our o|)inion these findings of fact are 
supported by substantial evidence and are 
not clearly erroneous.

As to racial impact, the Supreme Court in 
Wusbin^ton v. Davis, 426 U.S. 229, 239, 96 
S.Ct. 2040, 2047, 48 L.Ed 2d 597 (1976) stat­
ed:

[Ojur cases have not em­
braced the proposition that a law or other 
official act, without regard to whether it 
reflects a racially discriminatory purjwse, 
is unconstitutional solely because it has a 
racially dis()roportionate impact.
The judgment of the District Court is 

affirmed.

AITENDIX

Exhibit “A”

On the night of Jatiuary 8, 1972, shortly 
after 8:00 P.M., the i)olice radio dispatcher 
for the MPD’s South Precinct put out a call: 
“Bellevue and F’erguson at sporting goods,* 
prowlers inside.” Officers Calliham and 
Roleson in a police patrol car responded to 
the call and were the first to arrive on the 
scene, although defendants Cox and Rich­
ards also arrived on the scene in a patrol 
car almost simultaneously. SBM Co. is lo­
cated at the south-east corner of South 
Bellevue (a street which runs in a north- 
south direction, a major thoroughfare, and 
Ferguson (an east-west street). It has a 
storage yard in the back (to the east) and to 
the northeast of the building which fronts 
on South Bellevue, facing west, with the 
main entrance being in the northwest cor­
ner of the building. The storage yard is 
bordered by a chain-link cyclone fence 
which is about 6 feet high with three 
strands of barbed wire on top. The fence 
separates the storage yard from a large 
drainage ditch which runs north and south 
at the back of the SBM Co. property, and 
which runs through a culvert under Fergu­
son Street. There is al.so a similar east-

4. South Bellevue Marine Company was the lo­
cation, a sporting goods store specializing in

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AI’I’KNDIX 
exhibit “A” 

west chain-link fciua 
Street from the ditch at Ih' 
the street crosses the ditch,

Conlimied
Continued
separatiti)!; l'’efjjuson 

|>oiiU where 
ind a north-

south chain-link fence also sei)arates the 
drainage ditch on the eastern hank from 
the home of one Don Krag. These fences 
prevent access to SBM Co. or the <iitch from 
Ferguson. P'rom the point where it inter­
sects with Ferguson Street, the drainage 
ditch runs due south for several hundred 
feet before curving to the west where it 
intersects with South Bellevue. To the east 
of the southern portion of the ditch, south 
of the Krag home, is a large housing |)rojccl 
inhabited primarily by black families. 
There is a large paved area to the south of 
SBM Co. property along the ditch in (pies- 
tion. This jiarking area is also sei)arated 
from the drainage ditch by a chain-link 
fence, but this fence is not as high as the 
one surrounding SBM Co.

When officers Calliham and Roleson ar­
rived on the scene, they stoi)ped their patrol 
car directly in front of SBM Co. which has a 
large glass front. Officer (hilliham went to 
the front door and officer Rose.son [sic] 
began running south in front of the build­
ing for the purpose of circling around be­
hind the building at the point where the 
parking area adjoins the storage yard to the 
south. The inside of the SMB Co. was well 
lighted and Calliham could sec three male 
blacks inside in the area of a soft drink 
machine. Richards and Cox who had also 
just arrived were so informed, ('ox and 
Richards proceeded in the patrol car north 
and turned east on Ferguson Street along 
the north side of SBM Co. They stopped 
their car near the point where Ferguson 
crosses the drainage ditch. As ('ox and 
Richards were getting out of their car, they 
saw two male blacks running out of the 
rear of the south portion of the building 
near the fence which separates the storage 
yard from the adjacent j)arking lot. It is 
approximately 54 feet from the hack of the 
building along this east-west fence to the

5. Neighboring property owner Don Krag stai 
being fired.

north-south fence along the drairuige ditch. 
It W i ts  raining hut the storage lot was light­
ed and the officers could see the two, who 
kept running and either climbed o v i t  or 
went under the north-south fence into the 
drainage ditch which was chirk and obscure. 
Richards and/or Cox yelled for them to 
“halt” repeatedly as they ran from their 
patrol car to the fence which separates the 
ditch from P'erguson Street. The tw'o flee­
ing males paid no heed to the commands to 
stop, hut instead continued running into 
and down the drainage ditch away from the 
officers.

V. MEMIMIIS POLICE DEn. 1255
c i t e  as  .MS r . 2d 1247 (1977)

At this time Cox and Richards both decid­
ed to fire at the two fleeing suspects, con­
cluding they could not apprehend them oth­
erwise. ('ox fired twice with his .38 caliber 
police special pistol and Richards fired three 
times with a shotgun loaded with buckshot. 
The firing was almost simultaneous.* Rich­
ards did not exhaust his available shots. 
Defendant Richards saw one of the suspects 
apjiear to stumble upon his second or third 
shot. An ambulance was immediately 
called and a search of the ditch revealed 
Freddie Lee Berry lying face down a dis- 
tiince of some 208 feet down the ditch from 
where Cox and Richards had fired, and 
roughly 20 feet from where the youths had 
gone into the drainage ditch. Subsequent 
investigation by these officers after firing 
also revealed a “stash” consisting of two 
shotguns and ammunition apjiarently taken 
from SBM ('o. and placed in the ditch near­
by where Berry was found. It is reasonable 
to assume Berry and his comiianion had not 
only broken in SBM Co. but had burglarized 
it, and were in the [irocess of continuing the 
felony when interrupted. Berry had l>een 
wounded in the back of the head with a 
shotgun pellet and had also received a chin 
“graze” from another gunshot. He was 
alive but unconscious at the lime he was 
found and was liiken to the hosjiital where 
he died shortly thereafter.

The other black male fleeing with Berry 
was Thonuis B. Lurry, age 17, who esca|>ed.

tIuU it soum led to b iin  as it o n ly  one nun was

- I



1256 548 FHDKHAI HKI’OUTEH, 2d SI:KIP:S

I \

APPEN Dl X—Continued 
Exhibit “A”—Continued 

He later turned himself in at police head­
quarters and was adjudicated as a delin­
quent juvenile.

(Apj). 0002;39 42)

McCREE, Circuit Judge (Concurring),
I concur in the result because I do not 

regard this appeal as requiring us to decide 
whether the rule that permits a police offi­
cer to use deadly force to a|)prehend a 
fleeing felon when there is no threat to 
human life is constitutional. On .several 
occasions, we have ai)proved a rule that 
permitted the use of deadly force by police 
officers to apprehend a suspected felon 
when the felon appeared to present a threat 
to human life. A])pellants urge that these 
decisions do not control this case because 
there was no such threat here. The district 
court, however, relied both on the fact that 
the officers could not have known whether 
the fleeing persons were armed and on the 
fact that no other means existed by which 
they could have been apprehended. There 
is sufficient evidence in the record to sup­
port the conclusion that the fleeing felons 
in this case did present an apparent threat 
to human life, and therefore I join in the 
decision of the court.

Although I agree that reliance on the law 
by a state officer may exonerate him from 
personal liability in damages, I do not re­
gard reliance by the officer as precluding 
declaratory relief if action in reliance on an 
existing rule violated the constitutional 
rights of the decedent.

UNITED STATES of America, 
Plaintiff-Appellant,

(O t  keynuMBEBSYSIEM̂
. T .

v.
Cleveland Dean EDMOND, 

Defendant-Appellee.
No. 76-2097.

United States Court of Appeals, 
Sixth Circuit.

Argued Dec. 13, 1976.
Decided Feb. 10, 1977.

ReliE'aring and Rehearing En Banc 
Denied March 22, 1977.

The United Stsites appealed from an 
order of the United States District Court 
for the Eastern District of Michigan, Da­
mon J. Keith, Chief Judge, supjEre.ssing evi­
dence seized by police officers during a 
warrantless search of an automobile. The 
Court of Ap[)oals, Weick, Circuit Judge, 
held that the officers had probable cause to 
arrest defendant and to search his automo­
bile as an incident to such arrest.

Reversed.
McCr(!e, Circuit Judge, dissented and 

fikal opinion.

1. Searches and Seizures ■s=>3.6(3)
Hearssty may be basis for search war- 

r;int, and where hearsay has been verified 
by surveillance by lYolice officers there is no 
good reason why evidence obtained in 
search should be suppressed. U.S.C.A. 
Const. Amend. 4.

2. Searches and Seizures «=>3.3(7)
Automobile may be searched without 

warrant under circumstances that would 
not justify search of house, provided there 
is probable cause to believe that vehicle 
contains articles that officers are entitled to 
seize. U.S.C.A.Const. Amend. 4.
3. Arrest «::=6,3.4(9), 71.1(3)

C'riiiiiiial Law '*^394.4(12)
Police officers had jErobable cause to 

arrest defendant on suspicion of illegal 
drug activity and search his automobile as 
incident thereto when, after they received 
tip from nonjEroven informer that illegal