Alabama v. Pruitt Petition for a Writ of Certiorari to the US Court of Appeals for the Eleventh Circuit (Prior to Final Judgment)

    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
PETITION FOR A WRIT OF 

CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR 
THE ELEVENTH CIRCUIT 

(PRIOR TO FINAL JUDGMENT)
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





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
PETITION FOR A WRIT OF 

CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR 
THE ELEVENTH CIRCUIT 

(PRIOR TO FINAL JUDGMENT)
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



iSiŜ iJ-i f:-;.r'-l i/--- ^
Tit: -  '

3v;V"••' . ..• ■ ■ ■ ::



STATEMENT OF ISSUES PRESENTED
1. Should this Honorable Court 

grant certiorari prior to final judgment 
in the Court of Appeals to review a 
decision by a United States District 
Court declaring an important state 
statute unconstitutional, where said 
decision is on appeal to the Court of 
Appeals and where;

A. This Honorable Court has granted 
review of a similar ruling from another 
circuit,

B. There is a great public interest 
in the case, because the state statute 
defines the limits of the force which is 
justified, to the extent that it is 
necessary, in making a lawful arrest, and 
the statute's invalidation creates great 
confusion, in officers and citizens alike 
as to what force may be justified in 
making a felony arrest.



C. There is a need for prompt 
action to clear up confusion in a funda­
mental aspect of the administration of 
criminal justice and,

D. There are no factual disputes 
relating to the constitutionality of the 
statute?

2. To what extent, if any, does the 
United States Constitution underwrite 
illegal resistance to lawful felony 
arrest?

3. Does the U.S. Constitution 
authorize a state to establish a legal 
defense based on established common law 
principles, in the interest of 
discouraging resistance to arrest, 
protecting human life and guaranteeing 
that the law is not impotent in dealing 
with lawlessness?

4. Is a state statute which creates 
a defense to claims and charges arising 
out of the use of force by police

II



officers, to the extent that such force 
is necessary to effect lawful felony 
arrests, repugnant to the U. S.
Constitution?

THE PARTIES
In the District Court, the parties 

were Darryl Pruitt, Plaintiff, who is 
Respondent herein, and the City of 
Montgomery, Alabama, and Lester G. Kidd, 
Defendants, who are not parties herein.
In the United States Court of Appeals for 
the Eleventh Circuit, the parties are the 
City of Montgomery, Alabama, and Lester 
G. Kidd, Appellants, Darryl Pruitt, 
Appellee, and the State of Alabama and 
Charles A. Graddick, Attorney General, 
interveners under 28 U.S.C. 2403, who are 
Petitioners herein.

The matters at issue here were 
raised by the Respondent in the District 
Court and have been at issue throughout 
this litigation.

Ill



*•-'.: I: %i?rf ; - a.j;

?;.25S t K T j d»-.■ '* ''-•* - - = -I df' "''d
■“- - :,. i-“ •*

‘ d- -
 ̂ wld# /i Vdi’asl̂! ;;*r; " d-d;

&rs-  ̂dr

;% s d f e :d ;- i  f. r « ^ i i s t ? a s : i a Q

. i r o  S's^smCy, Ti~ t^l

,-s •* - ;̂-nf  ̂3 ' • d csd * t~ " r ;

vd '̂1;'’“'
.  ̂ >.d-. d̂-d-̂3 ' '*3 '-ft.'- d~'̂

- 'f i;.. --• * d:--̂»;.-i-3-iqA

--d IT- d- - ;*
j . d  d 3 d 3 X 3 | f e i # % * c f  d d d d ; | ; # | 3 | g f S |  

:  ̂ %r:ŝis . dddd - ' d—.■ -de

- V '3, ' t 3.  ̂3
3-.4 '. ------ I-'

•. . .--■'̂:?3d::3d:3 :;3d34:d ‘d -'.3■'-'—333sL;d33d4d|;

. .

■ -■■■■ 3-t
■ ■■ ■■>

;̂lii
-34., 33 - --̂4-Vr ̂'-.'V

'■'■3- '̂3
■ '43
V;;3

■■ ■„ :3i
33

■ •'. .

33
*
»

*



TABLE OF CONTENTS

PAGE

STATEMENT OF ISSUES
PRESENTED-------------------  ante, I

THE PARTIES-------------------  ante. Ill
TABLE OF CONSTITUTIONAL

PROVISION-------------------  iii
TABLE OF CASES---------------- iii
TABLE OF STATUTES------------  vii
TABLE OF OTHER AUTHORITIES----  viii
OPINIONS BELOW---------------- 1
JURISDICTION------------------  1
CONSTITUTIONAL PROVISIONS

INVOLVED--------------------  2
STATUTORY PROVISIONS

INVOLVED--------------------  3
STATEMENT OF THE CASE--------- 3
STATEMENT OF THE FACTS--------  9

SUMMARY OF THE ARGUMENT-------- 16
ARGUMENT----------------------  21

I. REASONS FOR GRANTING THE 
WRIT PRIOR TO FINAL JUDG­
MENT IN THE COURT OF 
APPEALS----------------  21



TABLE OF CONTENTS CONT'D

PAGE

II. REASONS FOR GRANTING
THE WRIT GENERALLY---------- 27

INTRODUCTION: SECTION 13A-3-27,
WHAT IT IS, WHAT IT IS NOT AND THE 
CRITICISMS OF IT-----------------  27

1. PROTECTION OF HUMAN
LIFE----------------------  36

2. UPHOLDING THE LAW AS A
POTENT FORCE AGAINST 
LAWLESSNESS---------------  46

3. SUMMATION-----------------  47
A. A NOVEL QUESTION-------------  49
B. CONFLICT WITH THE PRIOR

DECISIONS OF THIS HONOR­
ABLE COURT ON HINDSIGHT 
JUDGMENTS--------------------  49

C. CONFLICT WITH U.S.
CIRCUITS AND STATE
SUPREME COURTS---------------  53

CONCLUSION-----------------------  54
CERTIFICATE OF SERVICE-----------  56

11



TABLE OF CONSTITUTIONAL PROVISIONS

PAGE

U.S. Constitution,
Amendment Fourteen-

TABLE OF CASES

PAGE

Ashcroft V. Mathis,
431 U.S. 171,
52 L.Ed.2d 219,
97 S.Ct. 1739 (1977)------ 7,42

Ayler v. Hopper,
532 F.Supp. 198
(M.D.Ala., 1981)---------- 2,4-8,

43
Beech v. Melancon,

409 U.S. 1114,
34 L.Ed.2d 696,
93 S.Ct. 927 (1972)--- --- 29

Beech v. Melancon,
465 F.2d 425
(6th Cir., 1972)----------  29

Clark V. Ziedonis,
513 F.2d 79, 83
(7th Cir., 1975)----------  33

Connors v. McNulty,
697 F.2d 18
(1st Cir., 1983)----------  53

• f •111



TABLE OF CASES CONT'D

PAGE

8,9,16
17,22,
42

Gamble v. State,
48 Ala.App. 605,
266 So.2d 817 (1972)------ 39

Garner v. Memphis Police 
Department,

710 F.2d 240
(6th Cir., 1983)----------

Hilton V. State,
348 A.2d 242
(S.J.Ct. Maine, 1975)----- 53

Illinois V. Gates,
___ U.S. __,
76 L.Ed.2d 527,
103 S.Ct. __  (1983)------  20,51

Jones V. Marshall,
528 F.2d 132
(2nd Cir., 1975)---------- 53

Massachusetts v. Upton,
___ U.S. __,
80 L.Ed.2d 721,
104 S.Ct. __  (1984)------  20,51

Mathis V. Schnarr,
547 F.2d 1007
(8th Cir., 1976)---------- 42

IV



TABLE OF CASES CONT'D

PAGE

Memphis Police Department v, 
Garner,

___ U.S, ___,
L.Ed.2d ,

104 S.Ct. 1589,
52 U.S. L. Wk. 3687 
(1984)------------- 16,23

Norman v. B & O. R.R. Co., 
294 U.S. 240,
79 L.Ed. 885,
55 S.Ct. 407,
95 A.L.R. 1352 
(1935)--------------- 25

Railroad Retirement Board v.
Alton R.R. Co.,

330,295 U.S.
79 L.Ed.2d 1468, 
55 S.Ct. 758 
(1935)---------- 17,25

Reese v. Seattle,
414 U.S. 832,
38 L.Ed.2d 67,
94 S.Ct. 169 (1972) 53

Reese v. Seattle,
81 Wash. 2d 374, 
503 P.2d 64,
83 Al.L.R. 3d 157 
(1972)----------- 53



TABLE OF CASES CONT'D

PAGE

Schumann v. McGinn,
307 Minn. 446,
240 N.W.2d 525
(1976)-------------------  53

Schumann v. St. Paul,
___ Minn. ___ ,
268 N.W.2d 903
(1978)-^----------------- - 53

Strickland v. Washington,
___ U.S. ___,
80 L.Ed.2d 674,
104 S.Ct. ___ (1984)----- 20,51

Taylor v. McElroy,
360 U.S. 709,
3 L.Ed.2d 1528,
79 S.Ct. 1428 (1959)----  16,23

Taylor v. State,
48 Ala.App. 443,
265 So.2d 886 (1972)----  39

Tennessee v. Garner,
___ U.S. ___,

L.Ed.2d ,
104 S.Ct. 1589,
52 U.S.L.Wk. 3687 
(1984)-------------------

United States v. Nixon,
418 U.S. 683,
41 L.Ed.2d 1039,
94 S.Ct. 3090 (1974)----  25

16,23,
26

VI



TABLE OF CASES CONT'D

TABLE OF STATUTES

Code of Alabama, 1975

PAGE

Wellington v. Daniels,
717 F.2d 932
(4th Cir., 1983)---------- 30

Wilson V. Girard,
354 U.S. 524,
1 L.Ed.2d 1544,
77 S.Ct. 1409 (1957)------ 17,25

Youngstown Sheet & Tube Co. v.
Sawyer,

343 U.S. 579,
96 L.Ed. 1153,
72 S.Ct. 863,
26 A.L.R.2d 1378
(1952)--------------------  25

PAGE

Section 13A-3-27---------- 1-8,17
22,23,
35,36

Section 13A-6-62---------- 10

United States Code
Title 28,
Section 1254-
Section 2403-

1,21
1
vii



TABLE OF STATUTES CONT'D

PAGE

Title 42, 
Section 1983- 4,7

TABLE OF RULES OF COURT

PAGE

Rules of the Supreme Court, 
Rule 18--------------- 17,24

TABLE OF OTHER AUTHORITY CITED

PAGE

American Jurisprudence, 
Second------------

American Law Reports,
Third Series------

Corpus Juris Secundum—  

Harvard Magazine-------

23,27,
38

23,27
23,27,
38,39
32

• • •Vlll



OPINIONS AND ORDERS BELOW 
The order and opinion of the United 

States District Court for the Middle 
District of Alabama, declaring Section 
13A-3-27, Code of Alabama, 1975, uncon­
stitutional, are not reported. A copy of 
the same is submitted as Appendix "A" to 
this petition.

The order of the United States Court 
of Appeals allowing your Petitioners to 
intervene under 28 United States Code, 
Section 2403 submitted as Appendix "D" to 
this Petition.

JURISDICTION
This cause is now pending in the 

United States Court of Appeals for the 
Eleventh Circuit.

The Jurisdiction of this Honorable 
Court is invoked under 28 United States 
Code, Section 1254(1).



CONSTITUTIONAL PROVISIONS INVOLVED 
The United States District Court for 

the Middle District of Alabama decided 
this case under Ayler v» Hopper (532 
F.Supp. 198 [M.D.Ala., 1981]) wherein the 
same District Court and Judge had ruled 
as dicta that Section 13A-3-27, Code of 
Alabama, 1975, is unconstitutional, 
apparently under section one of the 
Fourteenth Amendment to the Constitution 
of the United States, which reads as 
follows;

"...All persons born or natur­
alized in the United States, 
and subject to the jurisdiction 
thereof, are citizens of the 
United States and the state 
wherein they reside. No state 
shall make or enforce any law 
which shall abridge the pri­
vileges or immunities of citi­
zens of the United States; nor 
shall any state deprive any 
person of life, liberty, or 
property without due process of 
law; nor deny any person within 
its jurisdiction the equal pro­
tection to the laws..."



STATUTORY PROVISIONS INVOLVED 
The sole issue in this case is the 

constitutionality of Section 13A-3-27, 
Code of Alabama, 1975. The same is 
submitted as Appendix "B" to this 
Petition.

STATEMENT OF THE CASE
After the June 12, 1984, decision of 

the District Court declaring the statute 
unconstitutional, the Defendants 
attempted to take an interlocutory 
appeal. This attempt failed because the 
District Court took no action at all on 
it. Thus, this case did not get to the 
Court of Appeals until September 5, 1984. 
The record still has not been filed. 
Therefore, this statement cannot refer to 
the record.



The Petitioners have no interest in 
this litigation save in the constitu­
tionality, vel non, of Section 13A-3-27, 
Code of Alabama, 1975. The Petitioners 
are neither authorized to argue nor do 
they argue any other issue in the Court 
of Appeals or here. This statement of 
the case is, therefore, limited to the 
rulings relating to the statute.

The history of this case goes back 
to Ayler v. Hopper (532 F.Supp. 198 
[M.D.Ala., 1981]). In that case a
convict sued a prison official under 
42 U.S.C. 1983. The official had seen 
the convict escaping and, having no 
other means of stopping the convict, shot 
at him and wounded him. The plaintiff 
convict claimed damages for his injuries.



The defendant prison official raised the
defense of good faith reliance on Section
13A-3-27, and the plaintiff asked the
District Court for a ruling on the
constitutionality of the statute. The
Court ruled that, whether the statute was
constitutional or not, the prison
official had relied on it in good faith
and had the right to his defense. Ayler
V. Hopper, 532 F.Supp. 198, 199-200 (M.D.
Ala. 1981). The Court then wrote:

"...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 stan­
dards governing the plaintiff's 
section 1983 claim and the de­
fendant's asserted good faith 
immunity defense. Because 
these standards have been the 
subject of extensive briefs by 
the parties, and because pre­
trial knowledge of the Court's



understanding of these stan­
dards is likely to be crucial 
to the effective prosecution 
and defense of this case and in 
general to its orderly disposi­
tion, the Court finds it appro­
priate and desirable to inform 
the parties at this time of its 
understanding of these stan­
dards. " (532 F.Supp. 198,
2 0 0 )

There then followed an advisory opinion 
declaring Section 13A-3-27 unconstitu­
tional. The Court held that officers 
were barred from using deadly force to 
overcome resistance to any arrest. Such 
force, the Court opined, could only be 
used to prevent imminent death or great 
bodily harm. The Court wrote:

"...It is clear to the Court 
that the use of deadly force by 
a prison official to stop an 
escaping felon is consitu- 
tionally tortious unless the 
official has good reason to 
believe that the use of force 
is necessary to prevent immi­
nent, or at least a substantial



likelihood of, death or great 
bodily harm...." (532 F.Supp.
198, 201)

Since the defendant prison official 
prevailed on both his right to raise the 
statute as a defense and in the final 
judgment and the plaintiff convict did 
not appeal, there was no occasion for 
appellate review of Ayler. See Ashcroft 
V. Mattis, 431 U.S. 171, 52 L.Ed.2d 219, 
97 S.Ct. 1739 (1977).

The instant case began as a near 
carbon copy of Ayler. An injured 
arrestee sued a police officer and the 
City of Montgomery under 42 U.S.C. 1983. 
The cause came before the same court and 
the same judge as Ayler. It seemed 
that if Section 13A--3-27 is valid, then 
the Defendants had a valid defense. If 
Ayler is correct then the defendants had 
violated the Constitution. On June 12,



1984, the District Court re-affirmed its 
decision in Ayler and, rely-ing on Ayler 
and Garner v. Memphis Police Department 
(710 F.2d 240 [6th Cir., 1983], now 
pending in this Court) ruled Section 
13A-3-27, unconstitutional and granted 
summary judgment for the Plaintiff. 
(Appendix "A")

An attempt by the Defendants to 
appeal the June 12, 1984, order inter- 
locutorily failed when the District 
Court took no action on the Defendants' 
motion. After a final judgment for the 
Plaintiff, the Defendants appealed to the 
U.S. Court of Appeals for the Eleventh 
Circuit. The Appeal was docketed on 
September 5, 1984, and your Petitioners' 
motion to intervene was granted on 
October 9, 1984. (Appendicies "C" & "D")

The Appellee in the Court of Appeals 
(Respondent here) has moved to stay

8



proceedings in the appeal pending a 
decision by this Honorable Court in 
Garner v. Memphis Police Department  ̂
above. (Appendix "E")

STATEMENT OF THE FACTS 
The issue in this case is the 

constitutionality vel non of state 
statute which codifies a common law rule. 
The facts of the case are relevant only 
in suggesting the context in which the 
statute operated. The District Court 
granted summary judgment on the basis of 
depositions. The most significant of 
these are briefly digested below.

FROM THE DEPOSITION OF 
DARRYL W . PRUITT;

The incident took place shortly
before Pruitt's twentieth birthday.
(pp. 4 Sc 6) Prior to the incident,
Pruitt had amassed a minor criminal



record for third degree theft and traffic 
offenses. (pp« 9-11)

At one o'clock in the morning on the 
date of the incident, Pruitt, two male 
friends and two young ladies went to a 
closed auto parts store on West Fairview 
Avenue, in Montgomery Alabama. (pp» 
11-12) One of the young ladies was 
fifteen year old Sharon Brown. (pp. 12 & 
16) Pruitt took Miss Brown into a shed 
behind the parts store and had sexual 
intercourse with her.l* (pp. 12-15 & 18) 
After Pruitt dressed and while he waited 
for Miss Brown to dress, the two other

"§13A-6-62. Rape in the second degree
"(a) A male commits the crime of rape in 
the second degree if:
"(1) Being 16 years old or older, he 
engages in sexual intercourse with a 
female less than 16 and more than 12 
years old; provided, however, the actor 
is at least two years older than the 
female...." (Code of Alabama, 1975)

10



men broke and ran from the scene.
(R.p.l9) Pruitt heard two commands from 
officer Kidd to halt, but he did not 
believe that the person was an officer.
He continued moving away .walking... at 
maximum speed....". (p. 22-23) The first
shot "...sprinkled ...[his] arm and 
back...." (p.20) The second shot struck
him in the lower back, (ibid) He was 
three or four yards from a ditch, but his 
momentum carried him into the ditch.
(pp. 23-24) Pruitt described the officer 
who shot him as "...a black guy...."
(p.22)

Th incident was investigated by the 
Montgomery County District Attorney's 
office. (p.32)

Pruitt was charged with rape in the 
second degree. The case was no billed by 
the grand jury, but Pruitt does not know 
why. (p.32)

11



FROM THE DEPOSITION OF 
OFFICER LESTER G. C. KIDD;

Officer Kidd testified that he
understood, based on his training, that
(1) where an officer was absolutely
certain that a person has committed a
felony and cannot otherwise be stopped,
the officer has discretion to shoot and
that (2) that discretion is be exercised
to protect human life. (p.11-14)

On the night of the incident, he and
his partner received a radio call that
there was a burglary in process at 614
West Fairview Avenue. They proceeded to
the scene, and Kidd was dropped off in
the wooded area behind the store. (pp.
15-16) Kidd went into the dark thicket.
He received word from his partner that
he, the partner, had two suspects in
custody, and that the original report had
come from an adjacent store and had

12



stated that three black males had been 
breaking into the parts store. (pp- 
16-18) As Kidd moved on into the thicket, 
Pruitt jumped out from behind a bush and 
charged the officer. When Kidd brought 
his shot gun to high port in order to 
repel the attack, Pruitt veered off and 
fled toward a ditch. (p.l8) What 
happened next takes more time to describe 
than it did to occur. Kidd called out, 
"Halt, police 1" at least twice. (pp. 
19-20,25,30-31,34) Officer Kidd tried to 
pursue Pruitt, but the conditions of the 
thicket prevented it. (pp» 39-40) There 
was not enough time nor light to 
determine if Pruitt had anything in his 
hands. (pp« 16,32,34 & 38) Kidd judged 
that if he did succeed in overtaking the 
suspect, a fight would insue, in which 
the officer would be disadvantaged by

13



his encumbering equipment, would risk 
losing his weapons and having them turned 
on himself. (p. 39-40) After calling at 
least twice for the running suspect to 
stop, Kidd fired and, when the suspect 
continued to run, fired again. (p. 20)
In each case he aimed for the suspect's 
legs. (ibid)

Pellets from the second shot struck 
Pruitt in the buttocks. (p. 45)

Kidd later found out that the crime 
was rape, not burglary. (p. 46)

On the question of whether he 
considered Pruitt dangerous. Officer Kidd 
testified:

"Q. Now, at the time that you 
fired the shots, did you think 
that Pruitt was dangerous?
"A. When the subject came at 
me, that let me know right then 
that the subject would use 
physical force if necessary, so 
as far as my thinking he's

14



dangerous. 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 if I were to be knocked 
down and he were to take my 
shotgun then I'm through with.
"Q. Any other —  did you have 
any other reasons for believing 
he was dangerous at the time?
"A. None other than being a 
felon coming out of a building, 
just those two reasons, the 
strongest one being him coming 
at me..." (p. 40)

■k *  *  ie

"Q. So is it correct then that 
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 that 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...." (p. 84)

15



SUMMARY OF THE ARGUMENT 
I. This Honorable Court has 

jurisdiction to issue certiorari to a 
Court of Appeals before final judgment in 
said Court. 28 U.S.C. 1254(1) The Court 
should exercise this extraordinary power 
in this case because; (1) The primary 
issue in the Court of Appeals and the 
only issue raised by Petitioners is the 
same issue in Garner v. Memphis Police 
Department (710 F.2d 240 [6th Cir., 
1983]), now pending in this Court. Case
Nos. 83-1070 and 83-1035, U.S.

L.Ed.2d , 104 S.Ct. 1589, 52 U.S.
L.Wk 3687 (1984). Compare Taylor v. 
McElroy, 360 U.S. 709, 710, 3 L.Ed.2d 
1528, 1529, 79 S.Ct. 1428 (1959); (2) 
This case is of imperative public 
importance, since at issue is Alabama's 
ability to protect its citizens and

16



enforce the law at the most fundamental 
level. Rule 18, Rules of the Supreme 
Court; Wilson v. Girard, 354 U.S. 524, 1 
L.Ed.2d 1544, 77 S.Ct. 1409 (1957); (3)
There are no issues of fact in this case. 
Railroad Retirement Board v. Alton R.R. 
Co., 295 U.S. 330, 344, 79 L.Ed.2d 1468, 
1473, 55 S.Ct. 758 (1935); (4) The need
for a prompt resolution of the matters at 
issue here is obvious, but the Court of 
Appeals might be well advised to grant 
the Respondent's motion and delay 
decision until this Honorable Court acts 
in Garner v. Memphis Police Department, 
above.

II. The basic issue in this case 
is: when is it reasonable for an officer
to use firearms to effect an arrest? The 
common law, codified in Section 13A-3-27, 
Code of Alabama, 1975, draws the line at

17



felony-misdemeanor. The Courts which 
have rejected the common law rule have 
adopted a wide spectrum of alternative 
lines. The most restrictive being that 
adopted by the District Court in this 
case, which declares deadly force as 
always unreasonable to merely overcome 
resistance to arrest. (See Appendix "A") 

IT IS THE FATE OF THE COMMON LAW 
RULE THAT IT ALWAYS COMES BEFORE THE 
COURTS IN WORST CASE SENARIOS. Thus, 
this rule which seeks to balance rights 
and protection between officers and 
arrestees is always tested in cases 
wherein natural sympathy tends to rest 
with a resisting arrestee. The attempts 
to characterize the common law rule as 
placing resisting arrestees beyond the 
protection of the law and as inflicting 
punishment are false. The rule creates a 
defense and, if it authorizes anything.

18



it does so in the same sence that the 
defense of entrapment authorizes the 
crimes which it excuses. Like all 
defenses, that created by the common law 
rule is based on sound policy considera­
tions. In the case of the common law 
rule, these include: (1) The protection
of human life and limb of officers and 
citizens, including arrestees, by 
discouraging resistance, extending to 
officers a full measure of self defense, 
providing officers who must use force in 
making arrests with clear and practical 
guidance in confusing, life threatening, 
emergency situations, and permitting 
officers, who must deal on an emergency 
basis with volatile and unpredictable 
life threatening situations, with 
sufficient discretion, and (2) Preventing 
the law from underwriting the lawlessness 
of resistance to arrest.

19



A. This Honorable Court has never 
addressed the constitutionality of the 
common law rule nor the Alabama statute, 
and ought to do so in this case.

B. While the courts which have
condemned the common law rule have 
proposed a wide variety of alternatives, 
all agree that the actions of police 
officers are to be judged by hindsight. 
This Honorable Court has condemned the 
use of hindsight in after-the-fact review 
of the decisions of warrant magistrates 
(Illinois V. Gates, U.S. ___, 76
L.Ed.2d 527, 546-547, 103 S.Ct. 
[1983]; Massachusetts v. Upton, U.S.

, 80 L.Ed.2d 721, 727, 104 S.Ct.
[1984]) and defense attorneys (Strickland
V. Washington, ___ U.S. ___, 80 L.Ed.2d
674, 694-695, 104 S.Ct. ___ [1984]). If
hindsight is inappropriate in reviewing 
the actions of those who need not act in

20



emergency situations, how is it appro­
priate in judging the actions of those 
who must do so?

C. Athough two U.S. Circuits have 
condemned the common law rule, two 
Circuits and three state supreme courts 
have recently upheld the constitution­
ality of the rule.

ARGUMENT
I.

REASONS FOR GRANTING THE WRIT 
PRIOR JUDGEMENT IN COURT OF APPEALS

Although this Honorable Court 
clearly has jurisdiction to issue 
certiorari to a Court of Appeals

.before... rendition of judgment or
decree___" (28 U.S.C. 1254[1]), this is
an extraordinary departure from normal 
procedure and will be permitted only in 
extraordinary circumstances. This

21



Honorable Court has by rule and decision 
identified these circumstances. The 
instant case meets all of these criteria.

The primary issue in the Court of 
Appeals and the only issue which the 
Petitioner State and its Attorney 
General are authorized to argue there, is 
the constitutionality of Section 
13A-3-27, Code of Alabama, 1975. In 
Garner v. Memphis Police Department (710 
F.2d 240 [6th Cir., 1983]) the Sixth 
Circuit found a Tennessee statute similar 
to Section 13A-3-27, above, unconstitu­
tional. In invalidating Section 13A-3-27 
in the instant case, the District Court 
cited and relied on Garner. Appendix 
"A", page 8. As the District Court 
noted, this Honorable Court is now 
reviewing Garner on both appeal and 
certiorari. Tennessee v. Garner, No. 
83-1035, and Memphis Police Department v.

22



Garner, No. 83-1070, U.S.
L.Ed.2d , 104 S.Ct. 1589, 52 U.S.
L.Wk. 3687 (1984). The pendency of a 
case involving an identical issue is 
grounds for granting the writ prior to 
judgment in the Court of Appeals. Taylor 
V. McElroy, 360 U.S. 709, 710, 3 L.Ed.2d 
1528, 1529, 79 S.Ct. 1428 (1959).
However, here the pending case not only 
involves the same issue but provided a 
basis for the judgment in the instant 
case. For this reason, the writ should 
issue now.

The need for a rule of law governing 
the use of force in overcoming 
resistance to lawful arrest is obvious. 
For centuries this office has been 
served by a common law rule. See 6A 
C.J.S. Arrest, Section 49(b); 5 AM.
Jur. 2d, Arrest, Section 84; 83 A.L.R. 3d 
157-230. Section 13A-3-27, Code of

23



Alabama, 1975, is a codification of this 
common law rule. In striking down this 
statute, the District Court rejected an 
ancient and successful rule of law. The 
District Court's action leaves Alabama 
officers with no practical rule to guide 
them in the use of force. Because of the 
District Court's ruling the State of 
Alabama's ability to protect the public, 
especially in high crime areas, is 
severely limited. This untenable 
situation will remain until a practical 
rule is established by this Honorable 
Court. For these reasons this case is of 
imperative public importance. Rule 18, 
Rules of the Supreme Court; Youngstown 
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 
584, 96 L.Ed. 1153, 1166, 72 S.Ct. 863,

24



26 A.L.R. 2d 1378 (1952); Norman v. B & O
R. R. Co., 294 U.S. 240, 79 L.Ed. 885, 55
S. Ct. 407, 95 A.L.R. 1352 (1935);
Railroad Retirement Board v. Alton 
R.R. Co., 295 U.S. 330, 344, 79 L.Ed. 
1468, 1473, 55 S.Ct. 758 (1935). This is 
especially so since the matter at issue 
here affects at the most basic practical 
level the ability of the State of Alabama 
to administer the criminal laws. Compare 
Wilson V. Girard, 354 U.S. 524, 1 L.Ed.2d 
1544, 77 S.Ct. 1409 (1957) and United 
States V. Nixon, 418 U.S. 683, 686-687,
41 L.Ed.2d 1039, 1051-1052, 94 S.Ct. 3090 
(1974).

Since the District Court declared 
the statute unconstitutional on its face 
by summary judgment, there are no issues 
of fact in this case. See Railroad 
Retirement Board v. Alton R.R. Co., 295

25



U.S. 330, 344, 79 L.Ed. 1468, 1473, 55 
S.Ct. 758 (1935).

The need for a prompt decision 
either upholding the statute or providing 
Alabama officers with another practical 
rule to guide them in the use of force in 
making arrests is obvious. Yet, the 
Court of Appeals, given the importance of 
the validity of the statute to the 
District Court's decision, would no doubt 
be well advised to grant the Respondent's 
motion (Appendix E) and stay proceedings 
in this case until this Honorable Court 
acts in Tennessee v. Garner, above.

There are, as already outlined, many 
valid reasons for this Honorable Court to 
consider the constitutionality of Section 
13A-3-27, Code of Alabama, 1975, now, 
perhaps in conjunction with Garner, and 
there are no reasons for waiting.

26



Therefore, the writ ought to be granted 
now.

II.
REASONS FOR GRANTING THE WRIT GENERALLY
INTRODUCTION: Section 13A-3-27, WHAT IT
IS, WHAT IT IS NOT AND CRITICISMS OF IT.

Section 13A-3-27, Code of Alabama, 
1975, is the Alabama codification of the 
common law rule limiting the use of force 
in overcoming resistance to lawful 
arrest. See 6A C.J.S., Arrest, Section 
49(b); 5 Am. Jur. 2d, Arrest, Section 84 
and 83 A.L.R. 3rd 157-230. The common 
law rule may be succinctly stated:

An officer is justified in using 
whatever force is (1) necessary in 
overcoming resistance to a lawful arrest, 
provided (2) such force is reasonable.

There is absolutely no controversy 
over this rule. The controversy swirls

27



around the definition of "reasonable."
The common law rule, in an effort to 
establish a standard which is sufficient­
ly certain to be of practical use in 
highly uncertain situations, defines 
"reasonable" in terms of the legal 
definition of the involved crime: Any
force short of deadly force is "reason­
able" in the case of a misdemeanor 
arrest; any force, including deadly 
force, is "reasonable" in the case of a 
felony arrest. The various critics of 
the common law rule have proposed almost 
as many alternative definitions for 
"reasonable" as there are proponents.
The spectrum of these definitions ranges 
from the suggestion that deadly force may 
not be reasonable to overcome resistance 
to arrests for tax evasion, antitrust

28



violation, etc.2« (Judge McCree 
concurring in Beech v. Melancon, 465 F.2d 
425, 426-427 [6th Cir., 1972], cert, 
denied 409 U.S. 1114, 34 L.Ed.2d 696, 93 
S.Ct. 927) to the position taken by the 
District Court in the instant case. That 
position is: Deadly force is never
"reasonable" in overcoming resistance to 
arrest; such force is permissible only 
for the purpose of guarding against

timmanent threats to life of limb. 
(Appendix "A")

Another definition, although one 
about which there is no controversy, is 
that of "deadly force." "Deadly force"

2• Such arrests are seldom made under the 
emergency situations which are the rule's 
usual field of operation. Since the 
officers can usually choose the time, 
place and manner of such arrests, they 
can minimize resistance and, ipso facto, 
minimize the force necessary to overcome 
resistance.

29



is identified almost entirely, if not 
entirely, with the discharge of firearms. 
High speed automobile chases, blows to 
the head and other activities which can 
and sometimes do cause death, are not 
generally considered "deadly force", 
unless a death actually results. Thus, in 
the instant case even though the officer 
did not intend to kill, did not shoot to 
kill and did not kill, the District Court 
rejected the suggestion that he did not 
use deadly force, since he discharged a 
firearm. However, the striking of a 
resisting traffic law offender in the 
head with a flashlight is not considered 
use of deadly force, even where the 
resulting injuries are far more serious 
than those caused by the firearm in the 
instant case. See Wellington v. Daniels, 
717 F.2d 932 (4th Cir., 1983).

30



It is the fate of the common law 
rule and the statutes based on it that 
they never come before the courts, except 
in "worst case senarios." And, it is on 
the basis of these worst case senarios 
that the rule is always attacked.
Everyday in Alabama and throughout the 
Nation thousands of felony arrests are 
made with no more force than the spoken 
word. The submission of these felony 
arrestees is always effected, at least in 
part, by the knowledge that resistance 
would be futile, since the officer would 
be justified in using whatever force is 
necessary in overcoming resistance. Yet, 
the cases that come before the courts 
arise invariably out of those unusual 
arrests where force is necessitated. In 
fact, the cases most commonly before the 
courts are those rarest of arrests where 
the use of deadly force was compelled.

31



No one would condemn a surgical procedure 
which is 99.9% successful on the basis of 
the occasional failures, without even a 
glance at the benefits of the numerous 
successful operations. Yet, this is the 
basis on which the common law rule is 
condemned. This is an important point. 
The common law rule seeks to balance 
rights and protection between the officer 
and the arrestee. The concern of those 
who condemn the common law rule centers 
almost entirely on the protection of the 
arrestee. One is reminded of Dr. Derek 
C. Bok's controversial observations of a 
year ago;

"...[C]haracteristic of adjud­
ication is the tendency to con­
centrate on the immediate case 
at hand while paying less heed 
to the effects on a wider 
public...." ("A Flawed System" 
by Derek C. Bok, Harvard Maga­
zine, May-June, 1983, p. 38 at 
42.)

32



The common law rule is often chara­
cterized as placing resisting arrestees 
beyond the protection of the law. Such a 
characterization ignores at least two 
thirds of the rule, which balances rights 
and protection between officers and 
arrestees. First, the arrest must be 
lawful. Second and of the greatest 
practical importance, absolutely no force 
is justified beyond that which is 
necessary to overcome resistance. See, 
for example, Clark v. Ziedonis, 513 F.2d 
79, 83 (7th Cir., 1975). This limitation 
has two important effects: It limits the
use of force by the officer to that which 
is necessary, and it places in the 
arrestee the practical power to decide 
how much force will be necessary and, 
therefore, justified.

33



The common law rule is often 
characterized as providing punishment for 
resisting arrest. This is false. Police 
officers who undertake to punish 
arrestees violate the Constitution, the 
criminal law and the civil law of both 
the State and the Nation. In arresting 
even an escaped death row inmate who has 
been convicted of mass murder, an officer 
is justified in using not one scintilla 
more force than is necessary. The 
fallacy of the characterization of this 
ancient rule as relating to punishment is 
demonstrated by the fact that the rule 
distinguishes only between felonies and 
misdemeanors and does not otherwise 
relate to punishment. Punishment is the 
business of judges not police officers.

The common law rule is often 
characterized as "authorizing" the use of

34



deadly force in stopping fleeing felons. 
This is a most unusual use of the word 
"authorize." The common law rule, as it 
is embodied in the invalidated Alabama 
statute, is a defense.^* Does the 
defense of insanity authorize murder or 
rape by insane persons? Does entrapment 
authorize drug trafficking or prostitu­
tion by entrapped defendants? Does 
contributory negligence authorize 
negligence injury? Defenses represent 
policy decisions to hold defendants 
justified or excused for actions normally 
condemned. The basis of the defenses 
above mentioned and that codified in 
Section 13A-3-27, Code of Alabama, 1975,

The defense compares closely with 
assumption of risk: One who undertakes to 
resist a lawful arrest assumes the risk 
of any injuries occasioned by the force 
necessary to overcome the resistance.

35



is sound policy considerations. There 
are at least two general sound policy 
considerations justifying the defense 
established by Section 13A-3-27: The
protection of human life and the 
upholding of the law as a potent force 
against lawlessness.

1 .
PROTECTION OF HUMAN LIFE 

The common law rule protects human 
life by (1) discouraging resistance of 
arrest, (2) permitting officers a full 
measure of self protection in the event 
of resistance, and (3) giving officers 
sufficient discretion to deal with 
confusing and unpredictable life 
threatening situtaions.

Any resistance to arrest situation 
is highly dangerous to innocent bystand­
ers, arrestees and officers. The initial

36



function of any rule governing force 
incident to arrest is not to define the 
officer's civil liability nor even guide 
the officer in overcoming resistance but 
to discourage resistance. Non-resistance 
to arrest is the safest course for 
society, innocent bystanders, officers 
and arrestees. For centuries the common 
law rule has discouraged resistance to 
the great mass of lawful arrests.

Where an arrestee, notwithstanding 
the rule, chooses to resist arrest, the 
inherent danger to the officer is 
universally recognized. Even Courts 
which have rejected the common law rule 
have recognized that officers may resort 
to deadly force to protect themselves 
from death or serious injury. However, 
these courts disregard the fact that an 
officer effecting an arrest is ipso facto

37



deprived of the two best protections 
anyone has: (1) avoiding potentially
violent altercations and (2) leaving the 
scene when a violent altercation occurs. 
In fact, freedom from fault in bringing 
on the difficulty and retreat are 
elements of common self defense. 40 Am. 
Jur.2d Homocide, Section 140. An officer 
undertaking a lawful arrest is always "at 
fault" in bringing on the difficulty, 
and, if the arrest is resisted, the 
officer expected to go forward, not 
retreat. When an altercation between 
private citizens comes to a final 
termination, the law forbids one of the 
citizens to seek out the other and renew 
the combat. 40 C.J.S., Homocide, Section 
133. However, when a resisting arrestee 
makes good his escape, an officer is 
under a duty to seek him out and effect

38



the arrest. The Courts which condemn the 
common law rule assume that a felon who 
is running away from an officer is no 
danger to the officer. Yet, the law of 
self defense has always recognized 
strategic withdrawal, as opposed to 
completely breaking off the combat. 40 
C.J.S., Homocide, Section 132. This is 
especially relevant in the case of an 
arresting officer, who is expected to 
pursue. The Courts which reject the 
common law rule assume that an officer 
confronted with an unarmed resisting 
arrestee can safely engage in a phsical 
struggle. Gamble v. State (48 Ala. App. 
605, 266 So.2d 817 [1972]) and Taylor v. 
State (48 Ala. App. 443, 265 So.2d 886 
[1972]) are cases which arose out of just 
such struggles. In both cases the 
struggles cost the officers their guns, 
and in one (Gamble), the struggle with an

39



unarmed teenage drunk driver cost an 
officer his life. Although the courts 
which reject the common law rule seem to 
think that they are authorizing officers 
to fully protect themselves, these Courts 
are in fact leaving police officers with 
bearly half a loaf of the protection 
permitted private citizens. Our society 
sends its police officers into dangerous 
situations to defend our basic human 
rights and our way of life; we owe them 
more than a remnant of common self 
defense. The common law rule balances 
concern for the arrestee with concern for 
the officer.

The state has an interest in 
establishing a practical rule for guiding 
officers in the use of force in making 
arrests. The facts of the instant case 
present a prime example of the usual

40



situation where a rule governing the use 
of force in making an arrest comes into 
play: In a dark thicket a subject first
charges the officer then flees. The 
officer can see only the subject's shirt 
and socks. (Kidd's deposition, p. 34)
The officer has little information or 
time to analyze what he knows and no time 
at all to gather additional information. 
The officers have been dispatched to 
investigate a burglary but discover a 
rape. Any rule governing the use force 
in arrest must allow officers to proceed 
on what they know, not what they don't 
know. The rule must be clear and clearly 
understood. It must be drawn in terms 
which require a minimum of interpreta­
tion. The resisted arrest situation 
cannot be controlled by guessing games. 
Normally, there is not enough time to

41



make social judgments nor to apply 
philosophical principles. The risk that 
the arrestee, the officer and a later 
reviewing court will reach different 
conclusions about how much force is or 
was justified must be minimized if not 
eliminated. For centuries the common law 
rule has served this office well.

The strength of the common law rule 
is demonstrated by the very cases wherein 
it is condemned. The Eighth Circuit 
condemned the common law rule, but 
refused to establish anything in its 
place. Mathis v. Schnarr, 547 F.2d 1007, 
1020 (8th Cir., 1976); vacated 431 U.S. 
171, 52 L.Ed.2d 219, 97 S.Ct. 1739. The 
Sixth Circuit would allow an officer to 
use deadly force against a resisting 
arrestee who "...poses...a danger to the 
community if left at large...." (Garner 
V. Memphis Police Department, 710 F.2d

42



240, 246 [6th Cir., 1983], pend, on cert, 
and app.), but the District Court in the 
instant case would allow the use of such 
force only "...to prevent imminent, or at 
least a substantial likelihood of, death 
or great bodily harm...." Ayler v. 
Hopper, 532 F.Supp. 198, 201 (M.D.Ala., 
1981); Appendix "A".^* All of these 
rules require officers to act only on 
solid information in situations where 
information is scarce. All of the rules 
advanced in place of the common law rule 
are cast in terms which call on officers 
and arrestees to make judgments which

The difference between these rules is 
of great practical importance. If the 
fleeing convicts in Ayler had been death 
row inmates, the rule of that case still 
would not have allowed the guard to 
fire, but the Sixth Circuit rule probably 
would allow him to do so. Of course, as 
a practical matter the guard probably 
would have no way of knowing exactly what 
the escapees' criminal history was.

43



they cannot make and to make them at the 
risk of their lives and civil and 
criminal liability. In rejecting the 
common law rule, the District Court and 
the other lower courts have discarded a 
rule which has worked well for centuries. 
In its place they propose rules which are 
utterly irrelevant to the actual resisted 
arrest situation. If the common law rule 
is rejected, it will take years to estab­
lish a suitable substitute. During those 
years, how many arrestees, officers and 
innocent people will suffer injury or 
death because someone made the wrong 
guess.

From what has already been said, it 
is, obvious that any rule governing the 
use of force in making arrests must 
provide arresting officers with enough 
discretion to deal with highly volatile 
and unpredictable life-threatening

44



situations. An officer who undertakes to 
make a lawful arrest is in the paradox­
ical position of confronting a citizen in 
an effort to take away his freedom, while 
at the same time minimizing the danger to 
innocent bystanders, the officer himself 
and the arrestee. There is no way that 
the law can anticipate all of the condi­
tions of lighting, weather, and terrain 
under which such confrontations will take 
place. Arrestees, like all humans, are 
unpredictable, but arrestees, especially 
those who resist arrest, are highly 
likely to be under the influence of 
alcohol or other drugs or in a state of 
rage or panic, rendering them all the 
more unpredictable. An officer attempt­
ing to deal with such situations 
obviously must have broad discretion.

45



2.

UPHOLDING THE LAW AS A POTENT 
FORCE AGAINST LAWLESSNESS

Resisting a lawful arrest is an 
unlawful act, and it creates a lawless 
situation. The question in this case is: 
Can the law deal with it? The common law 
rule says: "Yes. *' The rule adopted by 
the District Court in this case says:
“No, if deadly force is necessary." The 
various other rules proposed in the place 
of the common law rule say: "Sometimes."

The courts which have struck down 
the common law rule on constitutional 
grounds hold by necessary implication 
that the U.S. Constitution extends its 
protection to certain forms of lawless­
ness. The constitution cannot underwrite 
lawlessness.

46



The rules of these cases will 
necessarily encourage flight and other 
forms of resistance to arrest. Arrestees 
who obey the law and surrender will be 
punished for their crimes, while those 
who successfully resist arrest will have 
as a practical matter an absolute 
defense. The State has an interest in 
preventing such absurd results. We all 
have a vital interest in the potency of 
the law.

SUMMATION
The real issue in this case is:

Does the U.S. Constitution permit the 
states to maintain a rule of law govern­
ing the use of force in overcoming 
resistance to lawful arrest which (1) 
discourages rather than encourages 
resistance to arrest, (2) extends the

47



fullest possible measure of protection to 
innocent citizens, officers and 
arrestees, rather than just to arrestees 
and (3) underwrites lawfulness rather 
than lawlessness?

The controversy over the common law 
rule is primarily a matter of practical­
ity versus philosophy. The common law 
rule has worked well in practice for 
centuries. The critics of the common law 
rule apparently seek in the place of the 
anicent practical rule a rule that is 
philosophically pure, whether it works or 
not.

48



A.
NOVEL QUESTION

This Honorable Court has never ruled 
on the constitutionality of the common 
law rule nor on the validity of the 
Alabama statute. The need for relief 
from the present confusion is obvious. 
This Court should issue the writ and 
address these matters now.

B.
CONFLICT WITH THE PRIOR DECISIONS 

OF THIS HONORABLE COURT ON 
HINDSIGHT JUDGMENTS

As already observed, the courts 
which have condemned the common law rule 
have advanced various conflicting rules 
in its place. However, one thing all of 
these court agree about is that the 
officer's actions are to be judged, not 
on the basis of what the officer knew or 
judged at the time of the event but on

49



the basis of what is known to and judged 
by the court on after-the-fact review.

The instant case falls into this 
pattern. There was no dispute as to the 
fact that, based on a citizen's report, 
officers were dispatched to investigate a 
burglary. However, the crime turned out 
to be rape not burglary. The District 
Court held officer Kidd liable on the 
basis of the finding; "...There was no 
burlgary as suspected...." (Appendix 
"A", p. 3) At the time of the arrest. 
Officer Kidd could see only the 
Respondent's shirt and socks (Kidd's 
deposition, p. 34), but the officer was 
held liable for shooting at an unarmed 
man.

While this Honorable Court has never 
addressed the common law rule governing 
the use of force in making an arrest, the 
Court has condemned hindsight judgments

50



of warrant magistrates and defense 
attorneys. Search warrants are not to be 
subjected to de novo review. Illinois v.
Gates , ___ U.S. ___, 76 L.Ed.2d 527,
546-547, 103 S.Ct. (1983);
Massachusetts v. Upton, U.S. , 80
L.Ed.2d 721, 727, 104 S.Ct. (1984).
In Strickland v. Washington (___ U.S.

, 80 L.Ed.2d 674, 104 S.Ct. ___
[1984]) this court rejected hindsight 
judgments of the acts and omissions of 
defense attorneys. The Court wrote in 
pertinent part:

"...It is all too tempting for 
a defendant to second guess 
counsel's assistance after con­
viction or adverse sentence, 
and it is all too easy for a 
court, examining counsel's 
defense after it has proven un­
successful, to conclude that a 
particular act or omission of 
counsel was unreasonable...
"...[A] court deciding an 
actual ineffectiveness claim 
must judge the reasonableness

51



of counsel's challenged conduct 
on the facts of the particular 
case, viewed as of the time of 
counsel's conduct...." (80
L.Ed.2d 674, 694-695; emphasis 
supplied)

The rules of these cases are as reason­
able as hindsight judgments are unreason­
able. But, warrant magistrates and 
defense attorneys do not act in the dark 
nor on unfamiliar terrain as police 
officers commonly do. A judge, who is 
unsure how to act, can take the matter 
under advisement; a lawyer whose case 
takes an unexpected turn can request and 
will usually receive a recess or 
continuance. An officer confronting a 
resisting arrestee must judge and act in 
a flash. Magistrates and lawyers do not 
act at the risk of life and limb, police 
officers do. If it is wrong, as this 
Court has held, to judge warrant 
magistrates and attorneys on the basis of 
hindsight, what fairness is there in

52



so judging police officers?

C.
CONFLICT WITH U.S. CIRCUITS AND 

STATE SUPREME COURTS
The common law rule was once 

unquestioned as the established law. 
Although it is questioned nowadays, two 
federal circuits and three state supreme 
courts have reaffirmed the constitution­
ality of the common law rule within the 
last decade or so. Connors v. McNulty, 
697 F.2d 18 (1st Cir., 1983); Jones v. 
Marshall, 528 F.2d 132 (2nd Cir., 1975); 
Hilton V. State, 348 A.2d 242 (S.J. Ct. 
Maine, 1975); Schumann v. McGinn, 307
Minn 446, 240 N..2d 525, 531 (1976);
Schumann v. St. Paul, Minn. , 268
N.W.2d 903 (1978); Reese v. Seattle, 81 
Wash.2d 374, 503 P.2d 64, 83 A.L.R.3rd 
157 (1972), cert. den. 414 U.S. 832, 38 
L.Ed.2d 67, 94 S.Ct. 169.

53



CONCLUSION
In conclusion, the Petitioners 

respectfully submit that the decision and 
opinion of the District Court in this 
case erroneously decides a novel question 
and conflicts with the prior decisions of 
this Honorable Court on the use of 
hindsight in judging official actions and 
with the decisions of numerous circuit 
and state supreme courts upholding the 
constitutionality of the common law rule. 
For these reasons, as well as the urgency 
and simplicity of the issue, the 
Petitioner prays that this Honorable 
Court will issue the writ of certiorari 
now and review the decision and opinion 
of the Honorable United States District 
Court for the Middle District of Alabama 
and on such review will reverse the

54



decision of said Court to the extent that 
the same holds that Section 13A-3-27,
Code of Alabama, 1975, repugnant to the 
United States Constitution.

Respectfully submitted.

n /CHARLES A. GRADDICK 
ATTORNEY GENERAL

JpSEPH G. L. MARSTON III 
ASSISTANT ATTORNEY GENERAL
ATTORNEYS FOR PETITIONER

55



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 
Alabama, Petitioners, 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

56



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

JOSEPH G. L. MARSTON III 
ASSISTANT ATTORNEY GENERAL

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

57



' €
I i i, i A € a i» ~ A A

X -■ '••n/
= x" V -

a;.

-i\t, /.

i,; ■■ :':■ X-.J ':: ai ' cv i/

'■ >.

" ' .# A .
%At i»i '* A A p v ,  A

.AsîAA©/- ■;a *
'-vA':;.:,' ■? ... 'r- -.'■ ... X A'-

-::-M,S.Bl... Bilsscf * I  A -, -A -,- .- ^ >.-5,.. •

■'- - A, '■-;■■
'© ? -1 -AAir A vaa:©"- A--' ' --' - .r-''; \ A ^ '.A;,:;3;Aa$Â:A :;

’A-%-;e rloCwA'rA 'a a  
Sit : a ' ̂  r A ̂ I- A 
A , C ̂ C ~ I ' C« w   ̂ a :x' . - -  - -

A *‘‘^ t A A ' A- , ©
:% !:*i
#C"“ ^q-asAATr#-'-  ̂ • a A  -A: 3*"*. A

■A;'A