Order from Hayes v. Memphis Police Department

    i
FILED

OecH 3 3r,l,H'7P
j-JP.T

WESTERK 'jiST. CF TENN.

IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

DORA HAYES,
Plaintiff,

V ,

MEMPHIS POLICE DEPARTMENT, 
et al.,

Defendants.

This document e ---.FRCP on

compliant®

NO. C-74-28

Rule 58 and/or

O R D E R

In light of the Order of remand in this cause by 
the United States Court of Appeals from the Sixth Circuit 
entered earlier this year, the Court has called upon the 
respective parties to submit further memoranda bearing on the 
Court's responsibility to file additional findings of fact 
(based solely upon the present record) as to whether the 
defendant police officers ever identified themselves as 
such before Officer Rooker fired, and whether the deceased, 
on whose behalf the suit was filed, ever aimed his rifle 
at the police or began to raise the muzzle in their 
direction.

This Court has further considered the record in 
this case, its notes taken during trial and the further 
memoranda submitted in making the additional required 
findings. Plaintiff asserted that defendant Rooker 
"suddenly and without warning or announcement that he was 
a policeman or that Hayes was under arrest... fired on [him] 
while his back was burned, inflicting the fatal wound."



Other defendants in the Memphis Police Department were 
charged with sanction and approval of such "reckless use 
of fatal force upon persons who pose no threat to the lives 
or safety of members of the community... under color of TCA 
§ AO-808." Further plaintiff charged that Rooker had in 
similar circumstances used lethal force against black 
citizens "where such force was totally unnecessary," and that 
the Memphis Police Department and named officials "have 
been aware of Rooker's propensities and have tolerated and 
condoned the behavior." Plaintiff contends finally that 
"Rooker and propensities constitute a nuisance to the black 
citizens of Memphis" and that other official defendants 
could and should have curbed "his vicious tendencies."

This Court has dealt with some of the theories of 
the parties in an Order dated December 5, 1974, and then 
submitted a Memorandum Opinion incorporating its findings 
and conclusions on the record in this case after trial on the 
merits. The episode in controversy took place early, on a 
Sunday morning, outside a neighborhood bar or establishment 
known as "Nellie's Place". Rooker and his partner, Cantrell, 
were in the vicinity when they were told that a man was getting 
a shotgun from his car and headed into the street. There was 
some shouting and commotion at the time and the police 
observed Hayes in the street with shotgun in hand and others 
in the immediate locale. The officers both identified 
themselves as they approached the scene as policemen; it 
was one ripe with dangerous potentiality taking into account 
and consideration the time, the place and the evident 
circumstances of persons who had been drinking and who were 
loud and boisterous. Twice there came the shout by Rooker: 
"Police officers, drop the gun I" His partner repeated the 
warning as well.

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These repeated warnings were ignored by Hayes; 
others at the scene heard the officers order him to drop his 
weapon. Most also heard a command for Hayes to halt. The 
officers' testimony was clear and was essentially borne out 
by the other witnesses that they identified themselves and 
ordered Hayes to desist from his then obviously dangerous 
conduct. Police officers are expected, as reasonable 
■ persons charged with the ultimate responsibility of keeping 
the peace, to protect the public and certainly those at the 
scene of this unfortunate happening from what appeared an 
imminent risk of death or serious harm to others in Hayes' 
sight and reach with a loaded shotgun.

Hayes paused in response to the warnings; he began 
to turn toward the direction of Rooker who had his gun 
drawn; he then also began to raise his weapon in the direction 
of officer Rooker. The defendant then fired a shot and struck 
Hayes in the left shoulder area, which passed into his chest 
and spine area, killing him almost instantly. The action of 
Rooker was neither "vicious" nor unreasonable, he was not 
expected to allow Hayes to be in a position to fire the 
first short. The police may arrest one committing even a 
misdemeanor in his presence without a warrant. United States 
V. Watson, 423 U.S. 411 (1976), reh. den., 424 U.S. 979 (1976).

The testimony of others at the scene was somewhat 
confused and unspecific; they had been drinking, some were 
friends and companions of the deceased; and others were 
unsympathetic to or even hostile towards the defendant police. 
The tragic episode happened quickly and some of plaintiff's 
witnesses were simply not in a position, because of a night 
of imbibing, or because of their location, closely and 
accurately to have observed Hayes' conduct after he ignored 
the police officers' proper command.

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Having found that the defendant officers identified 
themselves and ordered Hayes to drop his gun and having found 
the circumstances of Hayes' conduct to involve immediate threat 
to the life and safety of Rooker, his fellow officer, and 
others, the Court concludes that Rooker acted reasonably in 
firing his police revolver. The act involved a split second 
decision with a gun being turned in their direction and was 
an instinctive act of self-protection under these conditions. 
The conduct of the police was neither malicious, reckless or 
unnecessary; it was essentially done for maintenance of 
public and personal safety and protection.

The Court has concluded Rooker's acts to be 
justified, although he and his partner, if not acting in 
haste and in the face of a need for immediate action, might 
have approached Hayes with greater caution and attention to 
their own safety. With the benefit of hindsight, always 
regretting the loss of life in such a confrontation, Cantrell 
and Rooker could have perhaps placed themselves in such 
position that Hayes, seeing the folly of disobedience to 
their command, might have immediately dropped his gun. This 
viewpoint (and desire) of the Court, however, in fairness 
involves speculation and a degree of wishful thinking. The 
Court has examined carefully its conclusions in this respect 
because of Rooker's background in previous use of his firearm 
while in the course of duty.

The Court has examined this record; Rooker's actions 
were not shown in the past to have been racially motivated.
One lethal episode involved a white felon filled while fleeing 
from the scene of a burglary, circumstances strikingly similar 
to Beech v. Melaneon, 465 F.2d 425 (6th Cir. 1972), more than 
five years before the incident in question. The other

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episode involving Rooker and another officer occurred some 
two years later and was a comparable situation. Other 
complaints over the years, none of which were found to be 
sustained, involved both black and white subjects. The 
actions of both officers in the instant situation were not 
shown to have been racially motivated either. Witnesses of 
the same race as Hayes substantially for the most part 
confirmed the version of events recounted by the police 
who were involved at the scene.

Based upon these additional findings on remand, 
this Court again reaches the conclusion that judgment 
should be awarded to defendants and each of them.

This /3 day of December, 1978.

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