Pruitt v. Montgomery Court Opinion

    PRUITT V. CITY OF MONTGOMERY. ALA. 6381

Darryl PRUITT, Plaintiff-Appellee,
V .

The CITY OF ^MONTGOMERY, ALA­
BAMA, et al., Defendants-Appellants.

No. 84-7571.

United States Court of Appeals, 
Eleventh Circuit.

Sept. 24, 1985.

Suspect, who sustained permanent and 
serious injuries in his buttocks area requir­
ing extensive medical treatment and hospi­
talization after he was shot by city police 
officer, filed § 1983 action against, inter 
alia, city for alleged violations of his 
Fourth, Fifth, and Fourteenth Amendment 
rights. The United States District Court 
for the Middle District of Alabama, Myron 
H. Thompson, J., entered judgment in favor 
of suspect, and city appealed. The Court 
of Appeals, R. Lanier Anderson, III, Circuit 
Judge, held that city was liable to suspect 
for officer’s intentional firing of shotgun at 
suspect s legs in an attempt to stop suspect 
from fleeing from alleged burglary site, 
pursuEnt to city s deadly force policy, where 
officer did not have probable cause to be- 
lieve that suspect posed physical threat to 
himself or to others, or that suspect had 
committed a crime involving the infliction or 
threatened infliction of serious physical 
harm.

Affirmed.

1. Civil Rights «=13.7

If a police officer acts pursuant to a 
city policy, city can be held liable for dam-

Synopsis. Syllabi and Key Number Classification 
COPYRIGHT ® 1985 by WEST PLBLISHING CO.

The Synopsis, Syllabi and Key Number Classifi- 
cation constitute no part of the opinion of the court.

ages, despite officer’s "good faith’’ execu­
tion of that policy. 42 U.S.C.A. § 1983.

2. Arrest <^68(2)

Police officer’s intentional firing of 
shotgun at suspect’s legs in an attempt to 
stop suspect constituted “deadly force” 
that was constitutionally reasonable only if 
suspect had threatened officer with a weap­
on or if there was probable cause to believe 
that suspect had committed crime involving 
infliction or threatened infliction of serious 
physical harm. U.S.C.A. Const.Amend. 4.

See publication Words and Phrases 
for other judicial constructions and 
definitions.

3. Federal Courts «=802
In reviewing district court’s grant of 

summary judgment. Court of Appeals must 
construe evidence and all reasonable infer­
ences therefrom in light most favorable to 
nonmoving party, and must resolve all 
doubts in nonmoving party’s favor.

4. Civil Rights «= 13 .7

City was liable to suspect, under 42 
U.S.C.A. § 1983, for police officer’s inten­
tional firing of shotgun at suspect’s legs in 
an attempt to stop suspect from fleeing 
from alleged burglary site, pursuant to 
city’s deadly force policy, where officer did 
not have probable cause to believe that 
suspect posed physical threat to himself or 
to others, or that suspect had committed a 
crime involving the infliction or threatened 
infliction of serious physical harm.

5. Civil Rights ^ 1 3 .9
Existence of an “adequate” state rem­

edy did not bar action under 42 U.S.C.A.
§ 1983 for alleged violations of plaintiffs 
substantive Fourth Amendment rights. 
U.S.C.A. Const.Amend. 4.



6382 PRUITT V. CITY OF MONTGOMERY. ALA.

Appeal from the United States District 
Court for the Middle District of Alabama.

Before FAY and ANDERSON. Circuit 
Judges, and GIBSON *, Senior Circuit 
Judge.

R. LANIER ANDERSON, III, Circuit 
Judge:

Appellant City of Montgomery (the 
“City”) challenges a jury verdict in favor of 
appellee Darryl Pruitt (“Pruitt”) on Pruitt’s 
claim under 42 U.S.C.A. § 1983 that a 
Montgomery police officer’s unconstitution­
al use of 'deadly force” caused him severe 
and permanent physical injury. The dis­
trict court held, based upon its earlier deci­
sion in Ayler v. Hopper, 532 F.Supp. 198 
(M.D.Ala. 1981), that the City’s “deadly 
force” policy was unconstitutional as ap­
plied to the shooting of an unarmed fleeing 
burglary suspect. Finding no issue of dis­
puted material fact on the question of the 
City’s liability, the district court granted 
partial summary judgment to Pruitt. The 
court then submitted the issue of damages 
to the jury which came back with a $100,- 
000 verdict in Pruitt’s favor. We affirm.

I. BACKGROUND
On the night of September 1, 1982, 

Pruitt, an 18-year old, and four of his 
friends were walking in a commercial dis­
trict in downtown Montgomery, Alabama.

* Honorable Floyd R. Gibson. U.S. Circuit Judge 
for the Eighth Circuit, sitting by designation, 

i. The parties agree that the police officers who 
arrived on the scene had probable cause to 
believe that a burglary of the auto parts store, a 
felony under Alabama law, see Ala.Code 
§§ 13A-7-1—13A-7-7 (1982 & Supp. 1984), had 
taken place. The parties also agree that no 
burglary in fact took place. Stipulation. 
Record, vol. II at 77. Pruitt was charged in city 
court with statutory rape, see Ala.Code § I3A-6-

Pruitt went to a wooded area behind an 
auto parts store located at 614 Fairview 
Avenue with one of his friends, a young 
woman, and had sexual intercourse with 
her. Meanwhile, a citizen who had heard 
noises behind the store reported to the 
police that a possible burglary was in 
progress.' Among the first two police offi­
cers to respond to the reported burglary 
was Lester Kidd (“Kidd”). He arrived as a 
passenger in a police car driven by his 
senior officer. The senior officer dropped 
Kidd off at a street intersecting with Fair- 
view Avenue about two doors from the 
auto parts store. The senior officer pro­
ceeded in the police car to the front of the 
store. Meanwhile, Kidd walked through a 
wooded area toward the rear of the store.

As Kidd approached the rear of the 
store, the senior officer informed Kidd by 
walkie-talkie that two suspects had been 
apprehended in front of the store. Kidd 
walked two or three steps further toward 
the rear of the store and then Pruitt came 
out from behind some bushes or brush, 
approached or “came at” Kidd (at which 
point Kidd and Pruitt were in close proximi­
ty to one another), and then took off run­
ning away from the back of the store 
through the woods. To summarize,^ at this 
point Kidd yelled “halt, police” several 
times, Pruitt failed to heed Kidd’s com­
mand, and Kidd fired his weapon at Pruitt. 
Kidd believed that this shot had not hit 
Pruitt, and he fired his shotgun a second

62. The grand jury, which was presented with 
evidence concerning the incident, declined to 
indict Pruitt. Stipulation, Record, vol. II at 77. 
The officers called to the scene of the reported 
burglary had no knowledge of any act of alleged 
rape, statutory rape, or sexual intercourse prior 
to the shooting of Pruitt.

2. The events leading up to the shooting, as ex­
plained in Kidd’s deposition, will be discussed 
in much greater detail in Part II.B„ infra.



PRUITT V. CITY OF MONTGOMERY, ALA. 6383

time. This second shot hit Pruitt in the 
buttocks area. Pruitt’s injuries required 
extensive medical treatment and hospital­
ization, and have resulted in permanent and 
serious injury to one of Pruitt’s legs which 
has been described in expert testimony as 
paralysis.

In August 1983, Pruitt filed suit under 
42 U.S.C.A. § 1983 against the City, Mont­
gomery Mayor Emery Folmar, Chief of Po­
lice Charles Swindall, and Kidd, alleging 
violations of the Fourth, Fifth, and Four­
teenth Amendments. However, the only 
defendant before us on appeal is the City.  ̂
Pruitt also alleged pendent Alabama state 
claims of assault and battery, and negli­
gence. On July 12, 1984, after presenta­
tion of affidavits and other evidence, and 
full briefing of the issues, the district court 
issued an order in response to the parties’ 
cross-motions for summary judgment. 
First, relying on its prior holding in Ayler 
V. Hopper, 532 F.Supp. 198 (M.D.Ala. 1981), 
the district court reiterated (1) “that the 
use of deadly force to stop a fleeing or 
escaping felon constitute[s] a civil rights 
violation actionable under § 1983 ‘unless 
the [state] official has good reason to be­
lieve that the use of such force is necessary 
to prevent imminent, or at least a substan­
tial likelihood of, death or bodily harm,’ ’’ 
and (2) that Ayler had held the Alabama

3. Pruitt's motion to dismiss defendants Fulmar 
and Swindall was filed on April 2, 1984, and 
granted by the district court three days later 
leaving Kidd and the City as the only remaining 
defendants. See Record, vol. II at 55-57. 
Thereafter, at a pre-trial hearing on July 26, 
1984, Pruitt dismissed Kidd from the § 1983 
claim. See Record, vol. I at 5. The City is. 
therefore, the only defendant left in the § 1983 
claim, which is the only claim before this court 
on appeal. See infra note 6.

4. On July 26, 1984, the district court issued an 
order amending its earlier partial summary 
judgment order and substituting new language 
to the effect that Kidd had indicated in his

“fleeing felon’’ statute unconstitutional to 
the extent that it authorized the use of 
deadly force by police in other circumstanc­
es. District Court Order at 3-4, Record, 
vol. II at 92-93 {quoting Ayler, 532 F.Supp’ 
at 201).

[1] 'The district court then proceeded to 
grant partial summary judgment in favor 
of Pruitt under the standard set out in 
Ayler, concluding that no issue of material 
fact had been raised by the instant case. 
Based on Kidd’s deposition testimony, the 
district court found that the sole reason 
Kidd shot Pruitt, a fleeing unarmed burgla­
ry suspect, was to prevent Pruitt from 
escaping, not because Pruitt posed a threat 
of death or bodily injury to Kidd or others. 
District Court Order at 4, Record, vol. II at 
93.  ̂ The court, therefore, granted summa­
ry judgment against the City and in favor 
of Pruitt on the issue of § 1983 liability 
only.* In addition, the court found that the 
City was liable for Kidd’s unconstitutional 
use of deadly force because Kidd had been 
acting pursuant to the City’s deadly force 
policy (which itself was based upon the 
Alabama statute).* Id. at 93; see also Kidd 
Deposition (hereafter cited as “K.Dep ’’) at 
9-14.

The district court sent the § 1983 claim 
to the jury on the issue of damages and the

deposition that he feared an attack by Pruitt 
when Pruitt first came out of the bushes but 
that his only concern at the time of the shooting 
was the effectuation of Pruitt’s arrest. See 
Record, vol. II at 196; see generally Part II.B 
infra. ' ’’

5. The district court, of course, denied the de­
fendants' motion for summary judgment. Dis­
trict Court Order at 5, Record, vol. II at 94.

6. See Monetl v. Department of Social Services 
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 
(1978). There was no real dispute over the fact 
that Kidd was acting pursuant to the City's dead­
ly force policy, and the City does not appeal the



6384 PRUITT T. CITY OF MONTGOMERY. ALA.

jury returned a verdict for $100,000. Pur­
suant to Fed.R.Civ.P. 54(b). the court en­
tered final judgment for Pruitt against the 
City. This appeal ensued.^

II. DISCUSSION

A. Legal Standard

On March 27, 1985, the United States 
Supreme Court decided the case of Tennes­
see V. Gamer, —  U.S. ----- , 105 S.Ct
1694, 85 L.Ed.2d 1 (1985). In Gamer, the 
Court considered the constitutional validity 
of the Tennessee “fleeing felon” statute 
which codified the common law rule that 
after a police officer pves a felony suspect 
notice of intention to arrest the officer 
“may use all necessary means to effect the 
arrest” if the suspect flees or forcibly re­
sists. Tenn.CJode Ann. § 40-7-108 (1982);
see Gamer, —  U.S. a t -----  & n. 5, 105
S.Ct. at 1698 & n. 5, 85 L.Ed.2d at 5 & n. 5. 
The evidence produced at trial in Gamer 
indicated that a Memphis police officer shot 
and killed an unarmed, fleeing burglary 
suspect in order to apprehend him.

First, the Supreme Court held that the 
shooting itself was a “seizure” within the

district court’s finding under Monell that
Pruitt’s shooting was merely an execution of 

this policy." District Coun Order at 4, Record, 
vol. II at 93. If an officer acts pursuant to City 
policy, the City can be held liable for damages 
despite the officer’s “good faith" execution of 
that policy. Owen v. City of Independence, 445 
U.S. 622, 100 S.Ct. 1398. 63 L.Ed.2d 673 (1980).

The district court recognized, on the other 
hand^ that the issue of Kidd’s qualified ’’good 
faith immunity, see Harlow v. Fitzgerald 457 
U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982), 
complicated the issue of liability as to Kidd. 
The district coun further noted that it had been 
informed by Pruitt that he might dismiss Kidd 
from the case if the City were found liable. The 
court, thus, declined to reach the issue of Kidd’s 
liability “at this time." District Court Order at

meaning of the Fourth Amendment and 
was thus subject to that amendment's “rea­
sonableness” requirement Id. a t ----- , 105
S.Ct at 1699, 85 LEd.2d at 7. Second, the 
Court held that “[tjhe use of deadly force 
to prevent the escape of all felony sus­
pects, whatever the circumstances, is con­
stitutionally unreasonable.... Where the 
suspect poses no immediate threat to the 
officer and no threat to others, the harm 
resulting from failure to apprehend him 
does not justify the use of deadly force to 
do so----  The Tennessee statute is uncon­
stitutional insofar as it authorizes the use 
of deadly force against such fleeing sus­
pects.” Id. a t ------------- , 105 S.Ct. at
1700-1701, 85 L.Ed.2d at 9-10. The Ck)urt 
continued:

It is not, however, unconstitutional on 
its face. Where the officer has probable 
cause to believe that the suspect poses a 
threat of serious physical harm, either to 
the officer or to others, it is not constitu­
tionally unreasonable to prevent escape 
by using deadly force. Thus, if the sus­
pect threatens the officer with a weapon 
or there is probable cause to believe that 
he has committed a crime involving the 
infliction or threatened infliction of seri­
ous physical harm, deadly force may be

5, Record, vol. II at 94. The court similarly 
declined to address Pruitt’s pendent state 
claims. Id  Thereaher, Pruitt did in fact dis­
miss Kidd from the § 1983 claim. See supra 
note 3.

7. This court granted the State of Alabama inter­
vener status only on the issue of the constitu­
tionality of the "fleeing felon" statute. The state 
filed a brief and presented oral argument. Just 
prior to oral argument, Pruitt moved to dismiss 
the state in light of the United States Supreme
Court’s decision in Tennessee v. Gamer, __ U S
----- . 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985). The
motion was carried with the case. In light of 
our disposition of the case, Pruitt’s motion to 
dismiss the state as intervenor is DENIED as 
moot.



PRUITT T. CITY OF MONTGOMERY. ALA. 6385

used if necessary to prevent escape, and 
if, where feasible, some warning has 
been given. As applied in such circum­
stances, the Tennessee statute would 
pass constitutional muster.

Id. a t ----- , 105 S.Ct at 1701, 85 LEd.2d at
10.

Finally, the Court applied the above-de­
scribed rule to the facts before it, and 
found “the statute unconstitutional insofar 
as it purported to give [the officer] the
authority to act as he did__ ” Id. a t ------ ,
105 S.Ct. at 1706, 85 L.Ed.2d at 16.

As the parties agree, the Alabama “flee­
ing felon” statute also attempts to pre­
serve the common law rule. Gamer, —

8. We note that the prior ruling by Judge Myron 
H. Thompson in Ayler v. Hopper, 532 F.Supp. 
198 (M.D.Ala.l981), set a standard by which the 
constitutional validity of the Alabama statute 
could be assessed which is strikingly similar to 
the one adopted in Gamer. The district court is 
to be commended for its accurate analysis of 
the emerging constitutional standard in this dif­
ficult area.

9. The Alabama "fleeing felon" statute provides, 
in relevant part;

A peace officer is justified in using deadly 
force upon another person when and to the 
extent that he reasonably believes it necessary 
in order:
(1) To make an arrest for a felony or to 
prevent escape from custody of a person ar­
rested for a felony. . . .

Ala.Code § 13A-3-27(b)(l) (1982). The deadly 
force policy of the Montgomery Police Depart­
ment incorporates the common law rule as ex­
pressed in the statute, see Plaintiffs Exhibit No. 
5, Montgomery Police Departmental Manual 531 
§ 2.500; K.D^. at 10-12; see generally Deposi­
tion of Charles Swindall; and. as we have indi­
cated, Kidd was acting pursuant to that policy 
when he shot Pruitt. See supra note 6. The 
only question, then, is whether Kidd’s actions 
violated the rule in Gamer.

10. Although not precisely delineated on appeal 
as an issue requiring reversal, the City also 
argues that the shooting in this case did not, as 
a matter of law, constitute "deadly force" be­
cause Kidd had not tried to kill Pruitt but.

U.S. a t -----n. 14. 105 S.Ct at 1703 n. 14,
85 L.£ki.2d at 12 n. 14, and is, therefore, 
under Gamer,* subject to both constitu­
tional and unconstitutional applications.* 
Accord, Acoff v. Abston, 762 F.2d 1543, 
1547 (11th Cir.1985).

[2] We turn, then, to the question 
whether, under the standard set out in 
Gamer, the district court’s grant of sum­
mary judgment in favor of Pruitt was prop­

10er.

B. Summary Judgment

Although the pre-trial depositions of both 
Kidd and Pruitt were presented to the dis-

rather, only shot to stop him by hitting his legs. 
See K.Dep. at 15, 20, 83. The State of Alabama, 
which was granted intervenor status by this 
court only on the issue of the constitutionality 
of the “fleeing felon" statute, also pressed this 
issue at oral argument. We reject this argu­
ment as did the district court. See District 
Court Order at 3 n. 1, Record, vol. II at 92.

The City does not argue, nor could it, that 
"deadly force” occurs only when the victim ac­
tually dies. See Acoff v. Abston. 762 F.2d 1543 
(11th Cir.1985) (Gamer applicable where victim 
was paralyzed). The City points to language in 
Gamer which, when taken in isolation, might 
suggest that the use of deadly force occurs only 
when an officer shoots to kill. Gamer, —  U.S.
a t ---- - , ----- , ----- , 105 S.Ct. at 1699, 1700, 1701,
85 L.Ed.2d at 8, 9, 10. A close analysis, how­
ever, makes clear that although the Court held 
that "[a] police officer may not seize an un­
armed, non-dangerous suspect by shooting him
dead," id. a t ----- , 105 S.Ct. at 1701, 85 L.Ed.2d
at 10, the Court’s prohibition extends more gen 
erally to the “use of deadly force" in such cir
cumstances. Id. a t ----- , ___ , ___ , ___ , ___
----- . ----- . 105 S.Ct. at 1699, 1700, 1701, 1703
1704, 1705, 1706, 85 L.Ed.2d at 8, 9, 10, 12, 13,
14, 15; see also id  a t ----- , 105 S.Ct. at 1705, 85
L.Ed.2d at 15 (citing with approval amicus brief 
of the Police Foundation to the effect that "the 
obvious state interests in apprehension are not 
sufficiently served to warrant the use of lethal 
weapons against all fleeing felons ...").



6386 PRUITT V. CITY OF MONTGOMERY, ALA.

trict court, the City has only placed Kidd’s 
deposition in the record on appeal. We 
now review that deposition in detail, quot­
ing from it liberally, to determine whether 
Kidd “had probable cause to believe that 
[Pruitt] pose[d] a threat of serious physical 
harm to the officers or to others.” Gar­
ner, —  U.S. a t ----- , 105 S.Ct. at 1701, 85
L.Ed.2d at 10.

Early in his deposition, Kidd gave the 
following description of the incident which 
ensued as he approached the back of the 
auto parts store;

I had the shotgun. After I flipped [my 
flashlight] back down I took the shotgun 
back into my hand. I was going at low 
port I took about three steps and then 
the subject came out of the bushes. He 
came at me and I went up with my 
shotgun at high port, and once I went up 
at high port the subject veered to the 
right and then when he veered then I 
yelled “halt, police”. At this time I was 
thinking this was the third subject that 
was involved in the burglary coming 
from the back. I knew the subject had 
to have been looking at me because I 
didn’t hear anything until I more or less

The Model Penal Code, which recommends 
abandonment of the common law rule and 
whose "deadly force" rule the Gamer Court
adopted in large part, see —  U.S. a t -----n. 4.
1698 n. 4, 85 L.Ed.2d at 6 n. 4, defines "deadly 
force” as follows:

force which the actor uses with the purpose of 
causing or which he knows to create a sub­
stantial risk of causing death or serious bodily 
harm. Purposely firing a firearm in the di­
rection of another person or at a vehicle in 
which another person is believed to be consti­
tutes deadly force.

Model Penal Code § 3.11(2) (1962); see also 
Mattis V. Schnarr, 547 F.2d 1007, 1009 n. 2 (8th 
Cir.1976) (en banc) (adopting Model Penal Code 
definition), vacated as moot sub nom., Ashcroft 
V. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 
219 (1977): Ala.Code § 13A-3-20(2) (1982)

ran up on this bush. When I got too 
close he jumped out

As soon as I said halt the first time— 
the subject came at me and veered off to 
the right I said “halt, police”. The 
subject kept running. I yelled “halt po­
lice” again. At that time I could hear 
[the police car’s] tires screeching and 
they were coming out down around the 
back. 'Then I yelled a third time and the 
subject went down into a ditch. And 
when he came up out of the ditch I had 
to make a decision whether I was going 
to stop this fleeing felon or what I was 
going to do.

I could see the subject’s legs and body, 
his complete body, because it was silhou­
etted and he had a white shirt and white 
tennis shoes. I could tell that. I shot at 
the subject’s legs to stop him. And I 
shot the first round and the subject kept 
moving, and I shot the second round and 
the subject kept going, and maybe two or 
three seconds later I heard the subject 
yell and he fell.

K.Dep. at 19-20.
There are conflicts in the deposition as to

the manner in which Pruitt emerged from

("Force which, under the circumstances in 
which it is used, is readily capable of causing 
death or serious physical injury"). The above- 
quoted definitions clearly encompass Kidd’s ac­
tions in shooting Pruitt; Kidd, at the least, pur­
posely fired his shots at Pruitt’s legs, and in 
doing so used force capable of causing serious 
physical injury.

We find such action a "use of deadly force" in 
the constitutional sense, concluding that such 
finding is consistent with Gamer. See Gamer,
—  U.S. a t -----, 105 S.Ct. at 1705, 85 L.Ed.2d at
15; id. a t ------------- , 105 S.Ct. at 1711-1712, 85
L.Ed.2d at 22-23 (O’Connor, J., dissenting) (de­
crying the majority’s failure to narrowly define 
"use of deadly force" and attempting to limit 
such definition to the shooting of an unarmed, 
non-dangerous burglary suspect).



PRUITT V. CITY OF MONTGOMERY. ALA. 6387

the bushes. In the above-quoted descrip­
tion he “came out of the bushes,” “came at 
me,” and “jumped out.” At another point, 
Kidd stated that Pruitt “took about three 
steps” toward him when he came out of the 
bushes. Id. at 39. At still another point, 
Kidd reasoned that he must have walked in 
Pruitt’s path and “boxed him in.” Id. at 
42.

At several points in the deposition, Kidd 
indicated that he was momentarily put in 
fear by Pruitt’s emergence from the bush 
in Kidd s direction. Kidd stated that he 
thought Pruitt was trying to hit him or 
knock him down or “tangle” with him. Id. 
at 35-36. However, Kidd stated, “[t]he 
subject I guess saw that I had responded to 
him coming at me, then he ran off.” Id. at 
36. Kidd also stated that “I felt that the 
subject was trying to harm my physically 
which means if he’s trying to harm me 
physically and I also have a shotgun and 
another weapon on my side he could easily 
get them and kill me. Once he did that, 
that also prompted me to think about 
shooting the subject to stop him.” Id. at 
83; see also id. at 40 (indicating that Kidd 
thought Pruitt was dangerous when Pruitt 
came at him out of the bushes in that Kidd 
believed that Pruitt might knock him down 
and take the two weapons he was carry­
ing).

At several points in his deposition, Kidd 
described in detail the sequence of events 
from the point at which Pruitt emerged 
from the bushes and when he was shot.

II. This must be a reference to Kidd's "halt, 
police" order. Earlier in the deposition, Kidd 
stated that he yelled "halt, police" once when 
Pruitt first emerged from the bush and three 
times right before he went down into the ditch. 
K.Dep. at 19-20. As indicated in the text, Kidd 
stated later in his deposition that the "halt, po­
lice commands were issued after Pruitt came 
back out of the ditch and that he was not sure

When Pruitt came out of the bushes, he 
was 7-10 feet away from Kidd. I±  at 33. 
Then, Pruitt “took about three steps . . . , ” 
at which point he was very close to Kidd. 
Id. at 39. Pruitt then “veered off to the 
righ t” Id. At this point, Kidd took four 
or five steps to go after him but realized he 
couldn’t catch him. Kidd stated that Pruitt 
“went off like he was O.J. Simpson and 
kept running.” Id.; see also i± at 36 
(“When he ran off he was just running. I 
don’t know whether he knew exactly where 
the path was through there or what. He 
was just running”).

Kidd’s deposition describes that Pruitt 
ran off into a wooded area down into a 
ditch, where apparently Kidd lost sight of 
Pruitt temporarily, and then back up out of 
the ditch. Id. at 34. At this point Kidd 
yelled at Pruitt two or three times, /d.*' 
Pruitt kept running. Kidd shot at Pruitt 
once. Pruitt continued to run.'^ Kidd 
fired again. According to Kidd’s deposi­
tion, Pruitt continued to run for a few 
seconds more, and then he fell to the 
ground. Id. at 44.

Kidd also testified as to his reasons for 
shooting Pruitt. Kidd testified;

I thought the subject had broken in and 
tried to get away and so forth so I 
thought for certain that the subject had 
broken into the building or was trying to 
get away and I decided, I had to make a 
decision whether I was going to stop the
subject or just let the subject go__  I
didn’t know where I was going exactly

exactly how many times he gave the command. 
In any event, this discrepancy is unimportant.

12. Apparently, Pruitt claimed on deposition that 
this first shotgun blast hit him, spraying him 
with ammunition on his back and arm. Kidd 
was under the impression, however, that the 
first shot did not hit Pruitt.



«388 PRUITT T. CITY OF MONTGOMERY. ALA.

back there. That’s when I knew for a 
fact there was no way I was going to run 
the subject down because he was famil­
iar—from the way he was going and as 
fast as he was going he knew exactly 
where the trail was and how he was
going to get out of there___ I took the
initial two or three steps there and 
looked and there was nothing I could do 
as far as running. I couldn’t run the 
subject down. I had to make a decision 
whether to stop him or let him go.

Id. at 38, 39-40. Kidd further testified, 
with respect to why he took the action that 
he did rather than radioing for police as­
sistance:

I still could not have gotten to the radio 
if I had to make a decision whether I was 
going to shoot the subject or not to stop 
him by gunfire. I had made my decision 
once I initially ran those few steps and 
saw that I was not going to catch up 
with this subject. ’That’s when I had to 
make the decision whether to fire or not 
to fire. If I had of gone for the radio 
then without a doubt the subject would 
have gone.

Id. at 52-53.
Finally, the deposition concluded with the 

following colloquy between Pruitt’s counsel 
and Kidd:

Q. Now, on that evening when you shot 
Darryl Pruitt, was it necessary to shoot 
him in order to arrest him?
A. It was necessary to shoot him in my 
thinking, in my judgment in order to stop 
that subject
Q. When you say stopped you mean 
arrest?
A. All right. Arrest is one thing you 
understand. ’The subject is going to be 
placed under arrest but first I’ve got to

get the subject and to place him under 
arrest In order to have stopped that 
subject that night I had to shoot him. 
Once I stopped the subject I would place 
the subject under arrest for whatever 
crime was committed.

Q. When you shot Darryl Pruitt did you 
think he was about to kill or seriously 
harm yourself or some other person?
A. When I shot Darryl Pruitt my 
thoughts were not as far as trying to 
harm another person but myself when 
the subject initially came at me. I felt 
that the subject was trying to harm me 
physically which means if he’s trying to 
harm me physically and I also have a 
shotgun and another weapon on my side 
he could easily get them and kill me. 
Once he did that, that also prompted me 
to think about shooting the subject to 
stop him. I never at any time really 
thought about killing Darryl Pruitt. I 
wanted to stop him. I was trying to aim 
for the subject’s legs at the time. I 
yelled out at the subject three times and 
he never stopped so I had to make a 
decision.
Q. Listen to the question this time if 
you would. When you shot Darryl 
Pruitt did you think he was about to kill 
or seriously harm you or some other 
person?
A. Yes.
Q. Was it you you thought he was 
about to harm or kill?
A. When I shot him that thought had 
already gone through. When I initially 
shot him I thought that he had already 
burglarized the place plus he had the 
thought of harming me. That’s the rea­
son I shot him. As far as what you’re



PRUITT V. CITY OF MONTGOMERY, ALA. 6389

saying, as far as immediately when I 
shot him right then was he going to 
harm me, no, because he was running 
at the time. But see, other incideiila led 
up to him being shot by me.
Q. Are you saying then that ynn shot 
him because you thought before In' had 
tried to hurt you?
A. No, that’s not what I’m siiying. 
That’s one factor in me making Ih" ‘Inci­
sion of shooting him.
Q. So is it correct then that I In' time 
you shot Darryl Pruitt you didn'l think 
he was about to kill or harm some other 
person?
A. No. At the time that I shot Durryl 
Pruitt my thinking was that he wan a 
fleeing felon coming from a Inirghiry; 
that he also had made an attempt to 
physically harm a police officer hut he 
avoided that attempt and he was a sub­
ject that 1 felt needed to be slopped. 
Q. Is it also true then at the linm you 
shot Darryl Pruitt you didn’t think he 
was about to kill or harm you?
A. No. As fa r  as [at] that point, no. 

Id. at 82-85 (emphasis added).
[3] We recognize that in reviewing the 

district court’s grant of summary jinlgment 
we must construe the evidence and all rea­
sonable inferences therefrom in the light 
most favorable to the City, and must re-

13. Although the City does not question die retro­
active effect of Gamer, the Acoff court hel<J *haf 
the Gamer decision will be applied irtroac- 
tively. See Acoff, 762 F.2d at 1548-JO

14. Gamer and Acoff contain a possible implica­
tion that probable cause to believe ihni die sus­
pect poses a serious physical threat m ‘he per­
son of the police officer exists onlv wlieie ihe 
officer is threatened with a weapon. < •( ‘ 
there was no weapon in this case. Cf. nifru no*e
17. Assuming, however, that such (iinbable 
cause can exist without an armed ihirnl by ‘be

solve all doubts in its favor, since it is the 
nonmoving party. See Warrior Tombigbee 
Transportation Co. v. M /V Nan Fung, 
695 F.2d 1294, 1296-97 (11th Cir.1983). 
The question is whether, as a matter of 
law, Kidd’s deposition testimony when con­
strued in this manner indicates that Kidd 
engaged in an unconstitutional use of dead­
ly force. In doing so, we look to the stan­
dard which was announced in Gamer.

Our court has very recently delineated 
the Gamer standard as follows:

The Gamer standard contains three 
elements. First, an officer must have 
probable cause to believe that the sus­
pect poses a threat of serious physical 
harm to the officer or to others. Proba­
ble cause of this sort exists where the 
suspect actually threatens the officer 
with a weapon or where there is probable 
cause to believe that the suspect has 
committed a crime involving the infliction 
or threatened infliction of serious physi­
cal harm. Second, deadly force must be 
necessary to prevent escape. Third, the 
officer must give some warning regard­
ing the possible use of deadly force 
whenever feasible.

Acoff, 762 F.2d at 1547.'  ̂ It is clear from 
our review of the Kidd deposition that 
Kidd’s use of deadly force is unconstitu­
tional under the first element described 
above.'^

suspect, we doubt seriously whether Kidd’s sub­
jective fear, caused by Pniitt's coming at him 
momentarily, could constitute probable cause to 
believe that Pruitt posed a threat of serious 
physical harm to Kidd. However, we need not 
decide in the instant case whether a threat with 
a weapon is necessary, or even if not, whether 
Kidd's subjective fear at the earlier time was 
sufficient, because at the time of the shooting, 
with Pruitt fleeing away from Kidd, any alleged 
subjective fear of physical harm to Kidd had 
already passed. See discussion in text infra.



6390 PRUITT V. CITY OF MONTGOMERY, ALA.

First, there could be no argument on this 
record that Kidd had probable cause to 
believe that Pruitt was a threat to others. 
Kidd’s deposition indicates that he had no 
such belief. K.Dep. at 83 (“my thoughts 
were not as far as [Pruitt] trying to harm 
another person . . .  Id. at 84 (“Q. So is 
it correct then that the time you shot Dar­
ryl Pruitt you didn’t think he was about to 
kill or harm some other person? A. No. 
At the time I shot Darryl Pruitt my think­
ing was that he was a fleeing felon coming 
from a burglary . . . ’’).

Second, there is simply no credible evi­
dence that Kidd felt in the least bit threat­
ened by Pruitt at the time o f the shooting. 
Our review of Kidd’s testimony indicates 
that after Pruitt came out of the bushes, he 
veered off from Kidd and ran away very 
quickly. After this, Kidd began to give 
chase, then stopped, then lost sight of 
Pruitt, and then yelled several warnings 
before firing two shots, all unmistakably 
indicating that Pruitt was a good distance 
away from Kidd with his back toward Kidd 
at the time of the shooting. Kidd’s testi­
mony repeatedly indicates that his concern 
at this point was to stop Pruitt because he 
was a fleeing burglary suspect. See 
Record, vol. II at 196 (Order amending 
district court’s Summary Judgment Order) 
(“Although Kidd testified that he initially 
feared an attack from Pruitt, his deposition 
testimony repeatedly indicates that Kidd’s 
own subjective concern was for effecting 
Pruitt’s arrest and not for his own or an­
other’s safety”).

The City points to the fact that Pruitt 
answered “yes” to the question whether he 
thought when he shot Pruitt that Pruitt 
was about to harm or kill him or someone

15. In Bonner v. City of Prichard, 661 F.2d 1206
(11th Cir.1981) (en banc), this court adopted as
binding precedent all of the decisions of the

else. See K.Dep. at 83. However, Kidd’s 
prior and subsequent answers make clear 
that Kidd misunderstood this question. 
These other answers indicate unambig­
uously that Kidd’s subjective fear had al­
ready passed, see e.g., K.Dep. at 40, 82, 83, 
84, and that his only purpose in shooting 
was to stop Pruitt. Moreover, even if Kidd 
had some subjective fear of Pruitt at the 
time he shot him, such fear would be pat­
ently unreasonable given the facts testified 
to by Kidd, and, thus, would hardly have 
presented a disputed issue of material fact 
under G am er’s “probable cause” stan­
dard. See Gamer, —  U.S. a t ------------- ,
105 S.Ct. at 1700-1701, 85 L.Ed.2d at 9-10 
(“Where the suspect poses no immediate 
threat to the officers or to others, the harm 
from failing to apprehend him does not 
justify the use of deadly force to do so”)
(emphasis added); cf. id. a t ----- , 105 S.Ct.
at 1705, 85 L.Ed.2d at 15 (although officer 
was not certain that suspect was unarmed, 
“[rjestated in Fourth .\mendment terms, 
this means [the officer] had no articulable 
basis to think Gamer was armed”); United 
States V. Tinkle, 655 F.2d 617, 621 (5th Cir. 
Unit A Sept. 8, 1981) (“The definition of 
probable cause [to stop and arrest] is easily 
stated: probable cause exists whenever the 
facts and circumstances known to the offi­
cer, and of which he has reasonably trust­
worthy information, are sufficient to war­
rant a person of reasonable caution to be­
lieve that an offense has been or is being 
committed”).'*

We turn briefly to the second half of the 
first element of the Gamer test, i.e., 
whether “there is probable cause to believe

former Fifth Circuit handed down prior to the
close of business on September 30, 1981. Id. at
1209.



PRUITT V. CITY OF MONTGOMERY, ALA. 6391

that the suspect has committed a crime 
involving the infliction or threatened inflic­
tion of serious physical harm.” Acoff, su­
pra, at 1547. There simply is no evidence 
that Kidd had such probable cause. All 
Kidd reasonably believed was that a bur­
glary had taken place, and that Pruitt was 
fleeing from it. His deposition indicates 
that one reason he felt Pruitt was danger­
ous was that he was “a felon coming out of 
a building.” K.Dep. at 40. However, the 
essential meaning of G am er—that a po­
lice officer may not shoot at a suspect 
simply because he is a fleeing felon—un­
dermines any reliance on this statement as 
indicative of probable cause that a crime 
involving the infliction or threatened inflic­
tion of serious physical harm had taken 
place.'® Finally, there is no evidence that 
Kidd believed, reasonably or otherwise, 
that Pruitt was armed, a factor which 
might indicate that the suspect had commit­
ted a crime involving the infliction or 
threatened infliction of serious physical 
harm.” Compare Gamer, —  U.S. at 
----- , 105 S.Ct. at 1705, 85 L.Ed.2d at 15 (no

16. In this regard, it is interesting to note that
Gamer involved the nighttime burglarj’ of a 
dwelling, a crime more likely to involve vio­
lence or threatened violence against the person 
than the suspected crime in this case. i.e., the 
nighttime burglary of a closed commercial es­
tablishment. See Gamer, —  U.S. at -----, 105
S.Ct. at 1709-1711, 85 L.Ed.2d at 19-21 (O’Con­
nor, J., dissenting).

17. Pruitt had no weapon. Moreover, Kidd nev­
er mentioned that he believed Pruitt to be arm­
ed. In fact, his deposition indicates to the con­
trary. Kidd stated that he saw Pruitt fairly well 
from close range, see e.g., K.Dep. at 33 (detailed 
description of Pruitt’s clothing), that he had a 
good view of Pruitt while running, id. at 34, and 
that he did not notice Pruitt in possession of any 
burglary tools when Pruitt approached him. Id. 
at 38. Finally, Kidd stated that he feared that 
Pruitt would attack him and take his weapons 
and use them against him, indicating that Kidd 
believed Pruitt to be unarmed. Id. at 40.

articulable reason to believe that the sus­
pect was armed).

[4] We readily conclude that there is no 
genuine issue of fact material to the ques­
tion whether Kidd had probable cause to 
believe that Pruitt posed a physical threat 
to himself or to others, or material to the 
question whether Kidd had probable cause 
to believe that Pruitt had committed a 
crime involving the infliction or threatened 
infliction of serious physical harm. There­
fore, Pruitt was entitled to summary judg­
ment as a matter of law. That being the 
case, we need not reach the second and 
third elements of the Gamer test, i.e., 
whether the use of deadly force was neces­
sary to prevent escape, and whether the 
officer gave “some warning regarding the 
possible use of deadly force [if] feasible”."̂  
Acoff, 762 F.2d at 1547.

III. CONCLUSION
[5] In light of the foregoing, the deci­

sion of the district court is
.A.FFIRMED.'®

18. Pruitt argues that summary judgment is re­
quired on this third element because Kidd 
should have warned "halt, or I’ll shoot" instead 
of "halt, police," indicating both that a warning 
was feasible and that the warning actually used 
did not advise of "the possible use of deadly 
force." We note that Gamer refers to "some 
warning" rather than "some warning regarding 
the possible use of deadly force.” Acofj, 762 
F.2d at 1547. Because of our disposition of the 
case, we decline to decide whether such warn­
ing was feasible or if the term "halt, police” was 
sufficient under Acoff.

19. The City makes one final argument which 
warrants only brief discussion. The City claims 
that the district court was without jurisdiction 
to hear Pruitt's § 1983 claim because there was 
an "adequate" state remedy under Hudson v.
Palmer. —  U.S.----- , 104 S.Ct. 3194, 82 L.Ed.2d
393 (1984), and Parratt v. Taylor, 451 U.S. 527, 
101 S.Ct. 1908. 68 L.Ed.2d 420 (1981). As we



6392 PRUITT V. CITY OF MONTGOMERY, ALA.

Note 9—Continued
have stated on minieK"** occasions, this argu­
ment is dexoHl of .«r< H "̂ 55
F.2d 786. 787-88 tU 'l ' Clr. 1985) (Parra« docs 
not bar claim thai I” I '” ’’ officials retaliated 
against prisoner f»t n«crlion of constitutional 
right of to Ihr courts); Cate v. Oldham,
707 F.2d 1176. 1188 i>. 'M llth  Cir.1983) {Parratt 
does not bar First Amnidment claim); Duncan 
V. Poyihress. 657 F -M 704-05 (5th Cir. Unit 
B Sept. 28, 1980 USi'nill does not bar substan­
tive due process claim that state officials disen­
franchised sute elcs loiulc in violation of state 
law), cert granted. I' S. 937. 102 S.Ct. 1426, 
71 L.Ed.2d 647 (1487). cert dismissed. 459 U.S. 
1012, 103 S.Ct. 368. 74 I..Ed.2d 504 (1982); cf.

Lewis V. Hillsborough Transit Authority, 726 
F.2d 668 (11th Cir.) (on rehearing), cert, denied,
—  U.S.-----, 105 S.Ct. 95. 83 L.Ed.2d 41 (1984).
Thus, it is clear that the rationale of Hudson and 
Parratt does not apply to alleged violations of 
substantive constitutional rights, such as the 
Fourth Amendment rights implicated here. See
Hudson, —  U.S. a t ----- , n. 4, 104 S.Ct. at 3207,
n. 4. 82 L.Ed.2d at 412 n. 4 ("[T]he Court's 
holding [does not] apply to conduct that violates 
a substantive constitutional right—actions gov­
ernmental officials may not take no matter 
what procedural protections accompany them”) 
(Stevens, J.. concurring in relevant part).

Adm. Offh'**. U.S. Courts—West Publishing Company, Saint Paul, Minn.