Taylor v. Collins Court Opinion

    1554 574 FEDERAL SUPPLEMENT

of a non-treating consulting physician 
shall also be strictly complied with;
E. the doctor selected to perform a con­
sultative test or examination shall be 
competent and have the training and ex­
perience required to perform the particu­
lar test or examination, as instructed by 
POMS § 2027(D)(2);
F. prior to any test, procedure or exam­
ination, the non-treating consulting phy­
sician shall be provided with copies of the 
pertinent existing evidence regarding the 
recipient’s condition, as required by 
POMS § 2027(EK2);

(4) said defendant and her agents shall re­
open and cause to be reopened the cessa­
tion decisions o f all subclass members 
where benefits were terminated for failure 
to respond or to cooperate or a similar 
reason indicating an unvnllingness to coop­
erate or provide information and shall de­
termine whether'a home visit or in-person 
contact was conducted prior to the termina­
tion decision and, in cases where such a 
procedure did not occur, shall direct that a 
home visit or in-person contact be utilized 
or that a family member or health services 
treatment source of the recipient be con­
tacted in order to-determine the reason for 
the failure to respond or cooperate and 
shall then complete the continuing disabili­
ty investigation determination, dnless the 
defendants shall determine that the initial 
failur^to respond or to cooperate or similar 
basis for termination was in no manner 
attributable to a mental or physical impair­
ment, without penalization of recipients 
who have improved to the point where they 
can now respond and cooperate yet were 
unable to cooperate previously due to their 
condition at the time of the initial notifica­
tion.

William B. TAYLOR, Sr., individually 
and as Personal Representative (Ad­
ministrator) of the Estate of William B. 
Taylor, Jr., and Mattie Taylor, Plain­
tiffs,

V.

Jerry COLLINS, individually and as a 
police officer of the City of Flint; Max 
Durbin, Chief of Police of the City of 
Flint Police Department, individually 
and in his official capacity; and the 
City of Flint, a Municipal Corporation, 
Defendants.

No. 80-40335.

United States District Court, 
E.D. Michigan, S.D.

Nov. 21, 1983.

Suspect fleeing on foot from house 
that had been reported burglarized was 
fatally shot by police officer, and father of 
suspect thereafter brought section 1983 ac­
tion against officer, chief of police, and 
city. On father’s motion for summary 
judgment against city only, the District 
Court, Newblatt, J., held that: (1) late fil­
ing of motion did not warrant outright de­
nial without consideration; (2) city was not 
entitled to assert defense of qualified im­
munity; (3) federal case holding that flee­
ing felon statute violated Fourth Amend­
ment could properly be applied retroactive­
ly; (4) city police regulation which permit­
ted shooting o f fleeing nonjuvenile felon 
who was escaping from burglary where 
burglar would go unapprehended absent 
shooting violated Fourth Amendment; and 
(5) city violated fleeing suspect’s Fourth 
Amendment rights by virtue o f officer’s 
fatal shooting of suspect without cause to 
believe that suspect had committed violent 
crime or that suspect was armed or dange^
ous.

Motion granted.

1. Federal Civil Procedure «=2532
As it was in court’s best interest to 

save court time by deciding case on sum- -4

2.

3.

4.

5.

6.

iT-



TAYLOR V. COLLINS
cite u  S74 F^upp. 1554 (1983)

1555

LOR, Sr., individually 
lal Representative (Ad- 
the Estate of William B. 
d Mattie Taylor, Plain-

, individually and as a 
if the City of Flint; Max 
of Police of the City of 
department, individually 
ficial capacity: and the 
3 Municipal Corporation,

). 80-40335. 
ates District Court, 
Michigan, S.D.

)v. 21. 1983.

sing on foot from house 
reported burglarized was 
lolice officer, and father of 
er brought section 1983 ac- 
ficer, chief o f police, and 
er*s motion for summary 
ist city only, the District 
t, J., held that: (1) late fil- 
id not warrant outright de- 
isideration; (2) city was not 
srt defense o f qualified im- 
leral case holding that flee- 
ite violated Fourth Amend- 
perly be applied retroactive- 
ice regulation which permit- 
if fleeing nonjuvenile felon 
ping from burglary where 

go unapprehended absent 
ed Fourth Amendment; and 
3d fleeing suspect’s Fourth 
ights by virtue o f officer’s 
of suspect without cause to 

ispect had committed violent 
;uspect was armed or danger-

■anted.

Procedure «=*2532 
1 court’s best interest to 
by deciding case on sum­

mary judgment motion if possible, filing of 
such motion after motion deadline estab­
lished by court did not warrant outright 
denial of motion without consideration; 
however, party which filed late motion was 
properly required to pay fine of $250 to 
clerk.
2. Federal Civil Procedure «=2537

Affidavit of attorney which did not 
comply with personal knowledge require­
ment could not be considered in deciding 
summary judgment motion. Fed.Rules 
Civ.Proc.Rule 56(e), 28-U.S.C.A.
3. Civil Rights «=13.8(3)

Municipality is not entitled to assert 
defense of qualified immunity in section 
1983 action. 42 U.S.C.A. § 1983.
4. Courts ®=100(1)

Where federal case holding that flee­
ing felon statute violated Fourth Amend­
ment was not unforeshadowed departure 
from prior law, case would have prodigious 
effect on police departments regardless of 
retroactivity, and no substantial inequity to 
city would result from retroactive applica­
tion, case could be applied retroactively in 
section 1983 action based upon fatal shoot­
ing of fleeing suspect. 42 U.S.C.A. § 1983; 
U.S.C.A. Const.Amend. 4.
5. Civil Rights ®=13.7

City cannot be held liable under section 
1983 unless city policy, custom, regulation, 
or usage caused constitutional tort; where 
city policy authorizes constitutionally tor­
tious act and that act is committed by state 
actor, such causation condition is satisfied. 
42 U.S.C.A. § 1983.
6. Civil Rights «=13.7

For purposes o f section 1983 action 
against city, police department’s policies 
can be said to be policies of city in which 
police department is located. 42 U.S.C.A. 
§ 1983.
7. Arrest «=68(2)

Fleeing felon regulation of city police 
department which permitted shooting of 
fleeing nonjuvenile felon who was escaping 
from burglary where burglar would go 
unapprehended absent shooting was viola­
tive o f Fourth Amendment, where there 
was no requirement that fleeing felon had

committed violent crime or that he was 
armed or dangerous. U.S.C.A. Const. 
Amend. 4.

8. Arrest «=68(2)
City violated fleeing suspect’s Fourth 

Amendment rights by virtue of police offi­
cer’s fatal shooting of suspect pursuant to 
police regulation, where officer did not 
have probable cause to believe that fleeing 
suspect had committed violent crime in re­
lation to reported burglary, there was no 
indicatioh that suspect was armed or dan­
gerous to others, and all evidence pointed 
to fact that officer shot suspect merely to 
prevent him from escaping. 42 U.S.C.A. 
§ 1983; U.S.C.A. Const.Amend. 4.

Thomas Stanley, Pontiac, Mich., for 
plaintiffs.

Linda Olivieri, Frederick Schmoll, Flint, 
Mich., for defendants.

MEMORANDUM OPINION 
AND ORDER

NEWBLATT, District Judge.
I FACTS

This is a 42 U.S.C. § 1983 action brought 
by William B. Taylor, Sr., the father and 
personal representative of the estate of 
William B. Taylor, Jr. and by Mattie Tay­
lor, the mother o f William B. Taylor, Jr.

On July 8, 1980, Flint police officers Ger­
ald Collins and Thomas Peek were notified, 
by police dispatch radio, o f a reported 
breaking and entering on Basil Lane, in the 
City of Flint. The two officers arrived at 
the scene o f the alleged breaking and en­
tering and officer Collins sighted a person 
fleeing on foot from the home that had 
been reported burglarized. For reasons to 
be developed hereafter, Collins shot the 
fleeing suspect fatally.

The dead suspect, who had indeed partici­
pated in a burglary o f the house on Basil 
Street, was Billy Taylor, the fifteen-year- 
old son o f the two persons bringing this 
action. Plaintiffs sued the following re­
maining defendants: Officer Collins; Chief



1556 574 FEDERAL SUPPLEMENT

of Police Max Durbin; and the City of 
Flint.

On August 26, 1983, plaintiffs filed a 
motion for summary judgment. In an opin­
ion read into the record on September 19, 
1983, the Court denied this motion on the 
ground that the motion was not supported 
by evidence as required by Rule 56 of the 
Federal Rules of Civil Procedure. On Oc­
tober 20, 1983, plaintiffs filed a motion for 
summary judgment against the City of 
Flint only. This motion is supported by 
evidence in accordance with Rule 56. The 
City has responded with two opposition 
briefs. (Docket entries # #  167 and 168.)

Plaintiffs’ motion is based solely on a 
Fourth Amendment theory as that amend­
ment was recently interpreted and applied 
by the Court of-Appeals for the Sixth Cir­
cuit in Gcltuct v, Mcvtphis Police Dept., 
710 F.2d 240 (CA 6, 1983) decided on June 
16 o f this year. It should be recalled that 
this Court briefly commented on Gamer at 
the August 16, 1983 hearing in the context 
o f a motion for a continuance filed by all 
the defendants. As was then pointed out. 
Gamer would not seem to be decisive vnth 
respect to the racial discrimination equal 
protection clause claim asserted by plain­
tiffs. Furthermore, in light of the quali­
fied immunity enjoyed by the individual 
defendants. Gamer-cannot even be said, as 
to these defendants, to be of decisive sig­
nificance as to the Fourth Amendment 
claims asserted by plaintiffs. In light of 
this, the Court refused to grant a continu­
ance based on Gamer.

The October 20, 1983 motion, however, is 
directed to the City only. And because the 
City does not enjoy a qualified section 1983 
immunity. Gamer takes on considerable 
importance. See Owen v. City o f Inde­
pendence, 445 U.S. 622, 100 S.Ct. 1398, 63 
L.Ed.2d 673 (1980). The Court has careful­
ly studied Gamer and the rest of the rele- 

• vant law. The Court has also studied plain­
tiffs’ brief (at docket entry #  166) ?ind the 
City’s response briefs (at docket entries 
# #  167, 168.) In this respect, the Court 
noted that plaintiffs have supported their 
motion by excerpts from the December 8, 
1982 deposition o f officer Collins. After 
reading the excerpts, the Court felt that it

was necessary to study the entire Collins 
deposition. Notice of the taking of this 
deposition is filed at docket entry #  108. 
Since Eastern District Local Rule 16(g) 
eliminated the necessity of filing all deposi­
tions, this notice put the deposition into the 
record and thus was subject to being con­
sidered by the Court on this motion for 
summary judgment. Indeed, even if the 
deposition had not yet been put into the 
record, it would have been permissible un­
der Rule 56 for the Court to order the 
already taken deposition into the record for 
purposes o f deciding the motion. See 
Wright & Miller, Federal Practice & Pro­
cedure § 2721. In any event, the Court 
has carefully considered the Collins deposi­
tion in its entirety.

A final pretrial conference was held in 
this case on November 3, 1983. The Court 
indicated that an opinion would be entered 
shortly deciding the pending motion for 
summary judgment. Subsequent to the fi­
nal pretrial conference, on November 7, 
1983, the City filed its supplemental brief 
along with an affidavit of officer Collins. 
The Court has considered the November 7, 
1983 Collins affidavit along with the Collins 
deposition.

Having carefully studied the briefs, the 
evidence and the law, plaintiffs’ motion for 
summary judgment against the City will 
herein be decided.

II LEGAL ANALYSIS
[1] In analyzing this motion, two 

threshold procedural issues raised by de­
fendant must be addressed. First, defend­
ant argues that the motion should be de­
nied outright because it was filed later 
than the September 5,1983 motion deadline 
set in the Court’s Order of August 18, 
1983.

It is true that this motion is beyond the 
September 5, 1983 deadlihe date without 
explanation. Deadlines must be respected; 
without such respect, courts are unable to 
regulate their dockets. Nevertheless, it 
would be unwise policy and^counterproduc- 
tive to deny the motion as a sanction. If 
p laint i f f s  have Succeeded in removing all



■y to study the entire (Dollins 
Siotice o f the taking o f this 
filed at docket entry #  108. 

n District Local Rule 16(g) 
: necessity o f filing all deposi- 
ice put the deposition into the 
lus was subject to being con- 
le Court on this motion for 
gment. Indeed, even if the 
d not yet been put into the 
lid have been permissible un- 
for the Court to order the 
deposition into the record for 
deciding the motion. See 

ler, Federal Practice & Pro- 
1. In any event, the Court 
considered the Collins deposi- 
irety.
trial conference was held in 
ovember 3, 1983. The (k)urt 
an opinion would be entered 
ng the pending motion for 
Tnent. Subsequent to the fi- 
onference, on November 7, 

filed its supplemental brief 
affidavit o f officer (k)llins. 
considered the November 7, 

fidavit along with the Collins

fully studied the briefs, the 
he law, plaintiffs’ motion for 
Tnent against the City will 
led.

^ALYSIS
ilyzing this motion, two 
edural issues raised by de- 
>e addressed. First, defend- 
it the motion should be de- 
because it was filed later 
nber 5, 1983 motion deadline 
art’s Order o f August 18,

it this motion is beyond the 
1983 deadline date without 
•eadlines must be respected; 
jspect, courts are unable to 
dockets. Nevertheless, it 

;e policy and^counterproduc- 
e motion as a sanction. If 
succeeded in removing all

genuine issues of fact as to the liability of 
defendant City, it is hi the Court’s best 
interest to decide and grant the motion and 
thereby save court time. ’This possibility is 
enough to justify the Court proceeding to 
decide the motion. Also, the Ckiurt notes 
that defendant City has had and has taken 
advantage of the opportunity to file two 
briefs in opposition to plaintiffs’ motion. 
(See briefs at docket entries # #  167, 168.)

But the Court cannot allow plaintiffs to 
go unpunished. Consequently, as a sanc­
tion for the tardy motion, the Court hereby 
ORDERS plaintiffs to pay a fine o f $250 to 
the Clerk of the Court as a sanction. The 
fine must be paid within five (5) days from 
the date o f this Order.

TAYLOR V. COLLINS 
cite u  S74 F.Supp. 1554 (1983) 1557

[2] A second threshold procedural issue 
involves the affidavit of attorney 
Waterman (filed at docket entry #  166). 
As defendants point out, this affidavit does 
not comply with the Rule 56(e) personal 
knowledge requirement. 'Therefore, the af­
fidavit will not be considered by the Court 
in deciding this motion.

[3] Having considered the threshold 
procedural issues, two threshold substan­
tive issues must be addressed. The first of 
these is the issue of qualified immunity. 
And the rule of law is clear. A municipali­
ty is not entitled to assert the defense of 
qualified immunity in section 1983 actions. 
See Owen v. City o f  Independence, 445 
U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 
(1980). "The City, o f course, has not assert­
ed this defense, but the Court feels that it 
is necessary to briefly mention Owen in 
order to explain why the City cannot assert 
the qualified immunity defense even 
though the defense is available to the indi­
vidual defendants in this case.

14] The other threshold substantive is­
sue is that of retroactivity. Defendant con­
tends that the recent Sixth Circuit Gamer 
decision should not be applied to this case 
which arose out of events that occurred 
over three years before Gamer.

At the outset, note must be taken o f the 
anomalous nature o f defendant’s request.
In Gamer, the Sixth Circuit held that the

Tennessee fleeing-felon statute was uncon­
stitutional as applied to a case arising in 
1974. Clearly, the Sixth Circuit Gamer 
court applied its ruling retroactively. 
Thus, this trial court is now being asked to 
render a non-retroactive Gamer ruling 
where the appellate court applied Gamer 
retroactively.

Nevertheless, it must be acknowledged 
that the Gamer opinion said nothing about 
the retroactivity issue, and the possibility 
must readily be acknowledged tJiat the 
retroactivity issue simply may not have 
been considered. Therefore, a retroactivity 
analysis must be undertaken.

In Chevron Oil v. Huson, 404 U.S. 97, 92 
S.Ct. 349, 30 L.Ed.2d 296 (1971), the Su­
preme Court set out a three-pronged test to 
be applied in deciding whether a newly- 
enunciated rule should be applied retroac­
tively. The first prong o f this test is 
whether the new rule overrules clear prece- 
dent or decides an issue o f first impression 
the resolution o f which was not clearly 
foreshadowed.

The City vigorously argues that Gamer 
indeed resolved an issue o f first impression 
that was not clearly foreshadowed. 'This 
argument turns on the fact that Gamer 
was the first Sixth Circuit decision to 
squarely hold that a fleeing-felon statute 
violated the Fourth Amendment While su­
perficially persuasive, this argument can­
not survive close scretiny.

Billy Taylor was killed on July 8, 1980 
On June 18, 1979, the Sixth Circuit decided 
the first appeal in the Gamer case. See 
Gamer v. Memphis Police Dept, 600 F.2d 
52 (CA 6, 1979), hereafter referred to as 
Gamer I. 'The precise ground for reversal 
in Gamer I  was that the district judge 

^  ^ prc Monell * ruling—erroneously 
held that the City o f Memphis was not a 
“person”  under 42 U.S.C. § 1983. Never­
theless, this Court notes that the 1979 Gar­
ner opinion contains nearly a whole page 
discussing the issues to be decided on re­
mand by the trial judge. These issues are 
enumerated at 600 F.2d 54, 55. One o f the 
enumerated issues was whether a munici-

* Monell V. Dept, o f Social Services. 436 VS. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).



574 FEDERAL SUPPLEMENT
1558
nality’8 use of a state fleeing-felon statute 
to justify a fleeing-felon regulation 
constitutional under the Fourth Amend­
ment See 600 F.2d 55. A footnoto-foot^ 
note 2^ to  this issue lists seven 
^^^l^iTreview pieces. See 600 F.2d 55 n.

2 (1979).
Two of the cases in footnote 2 are Mattis 

. S n a r r ,  F.2d 1007 (CA 8 1 « ^  
Jones V. Marshall, 528 F.2d 132 (CA 2 
1975). These cases contain scholarly and 
conceptual discussions justifying rulings 
that strike down fleeing-felon statutes on 
bases other than the Fourth Amendment. 
Nevertheless, both Mattis and Jones are 
cited and quoted extensively m Gamer IL 
See Gamer v. Memphis Police Dept 710 
F 2d at 244-45. Clearly, the concepts dis­
cussed in Mattis and Jones were very mflu- 
ential in Gamer II-

Furthermore, footnote 2 of the 1979 Gar­
ner opinion cites the following law review 
comments: Comment, Deadly Force te
Arrest Triggering Constitutional Ke- 

U  Hareard Civil Rights and Cml 
Liberties Review 361, 364^5 ^
Comment, cited at page 244 
Gamer decision, was extremely important 

'in  the analysis of the Gamer II opmion. 
The Comment contains an mcKive and nch 
ly detailed discussion of the historical back­
ground of the English common law rule 
allowing the shooting of fleemg felons. 
The Comment foretold the line of analysis 
at pages 244-45 of the Gamer II opmiom 
In ^ e r  words, a careful 
the Comment reveals that the. histon^

of American State g^ in g ie lon
is a foundation built on loose sai^.

"  "in  sumr^ST^ ^ ^ G  Fourth 
'  ment ruling-set out on pages

was no shock. City attorneys m Miclugan
Tennessee, Ohio.
have read the cases cited at 600 F.2d 5A w  
fn 2 If they had done so, withm a few 
months of June 18, 1979, fleemg-felon 
lice department policies would tove been 
altered to forbid shooting at fleemg un- 
Lm ed burglars. But BUly Taylor 
killed twelve months ^ f i f^ G a ^ r  l a ^  
at the time of the boy s death--the Hint 
police department had a regulatoon which 
Slowed police officers to shoot fleemg un­

armed and non-dangerous burglars where 
the escape would result in the crime gomg 
unpunished. In light of Gamer I ^ e  
Court rejects the City’s theory that the 
Gamer II Fourth Amendment ruling was 
not clearly foreshadowed.

The second Chevron inquiry is whether 
retrospective operation o f Gamer would 
further or retard the new rule’s operation.
The Court believes that this prong o f the 
test has a neutral effect in this c^e^ 
Whether or not the Gamer rule is applied 
retroactively, tee Gamer decision_^early 
will have a prodigious eff^ t  on police  ̂prac-
tices.

i ^ l l y ,  the Court weighs the issue of 
whether retroactive application will p i^  
duce a substantially inequitable result In 
arguing this issue, the City tells the Court
that . . .  XL

“ It would indeed do an injustice to tee
taxpayers of the City of Flint to require 
teose taxpayers to pay for plamfiffs 
damages and suffer the conconutant de­
crease in City services simply because 
the City could not anticipate that state 
law might, in tee future, be co n s id e ^  
unconstitutional.”  (See brief at docket 
entry #  169, P 8.)
This statement is far too sweeping. 

to the second part of the statement, the 
Court already has established why it w ^  
unreasonable for tee City not to ^  
for Gamer / / .  It could, and it should have 
anticipated Gamer II. It had a responsi­
bility to its citizens and to the ^
have anticipated a ruling so clearly forth­
coming. Furthermore, the Court imtes 
that the City is not liable for punitive dam­
ages under 42 U.S.C. § 1983. S e e N ^ ^
V Fact Concerts, 453 U.S. 247, 101 S. 
^ 4 8  69 L.Ed.2d 616 (1981). Thus, there is 
no reason to conclude that a judgment m 
this case would cause a staggermg de­
crease in city services. This is simply ^  
inflammatory statement not supported m 
anv way. Moreover, in weighmg the equi­
ties it is noted teat—unlike the Chevron 
nlahitiff—the instant plaintiffs did not 
sleep on their _ rights. Instead, they 
promptly filed suit under the Civil Rights



■dangerous burglars where 
id result in the crime going 
1 light o f Gamer I, the 
he City’s theory that the 
■th Amendment ruling was 
shadowed.
'hevron inquiry is whether 
aeration of Gamer would 
■d the new rule’s operation, 
ives that this prong o f the 
utral effect in this case, 
the Gamer rule is applied 

le Gamer decision clearly 
ig^ous effect on police prac-

Court weighs the issue of 
ctive application will pro- 
ially inequitable result. In 
lue, the City tells the Court

leed do an injustice to the 
the City o f Flint to require 
ers to pay for plaintiffs’ 
suffer the concomitant de- 

y  services simply because 
Id not anticipate that state 
1 the future, be considered 
aal.”  (See brief at docket
p 8 . )
nt is far too sweeping. As 
part o f the statement, the 
has established why it was 
ar the City not to be ready 
It could, and it should have 

mer II. It had a responsi- 
izens and'to the Taylors to 
d a ruling so clearly forth- 
hermore, the Court notes 
not liable for punitive dam- 

J.S.C. § 1983. See Newport 
'ts, 453 U.S. 247, 101 S.Ct 
d 616 (1981). Thus, there is 
onclude that a judgment in 
Id cause a staggering de- 
jervices. ’This is simply an 
statement not supported in 
eover, in weighing the equi- 
1 that—unlike the Chevron 
instant plaintiffs did not 
ir_ rights. Instead, they 
suit under the Civfl Rights

TAYLOR V. COLLINS
ate  u  574 F.Supp. 1554 (1983)

1559
Act. Plaintiffs claim to have suffered a 
dreadful emotional loss and it simply is not 
inequitable for the taxpayers to pay out 
compensatory damages if such claim is le­
gally established.

The Ck)urt thus concludes that retroac­
tive application of Gamer is appropriate. 
The Court will now move on to consider the 
core substantive issues raised by the mo­
tion for summary judgment.

[5] The City cannot be held liable under 
section 1983 unless a city policy, custom, 

-regulation or usage caused the constitu­
tional tort. Monell v. Dept o f  Social Serv­
ices, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 
611 (1978). Where a City policy authorizes 
a constitutionally tortious act and where 
that act is committed by a state actor, (an 
agent or employee of the state or its subdi­
visions and acting as such) the Monell cau­
sation condition is satisfied. See Hays v. 
Jefferson County, 668 F.2d 869, 875 (CA 6, 
1982); Van Ooteghem v. Gray, 628 F.2d 
488 (CA 5, 1980).

[6] Thus, if the police department had 
an unconstitutional regulation, and if (her­
ald Collins shot Billy Taylor in a context 
authorized by the unconstitutional regula­
tion, the City caused the boy’s death under 
42 U.S.C. § 1983. This, o f course, assumes 
the entirely settled rule that a police de­
partment’s policies can be said to be the 
policies of the City in which the police 
department is located. See the cases just 
cited. In other words, the Memphis police 
regulations are— for section  19S3 p u r­
poses—the regulations o f the City of Mem­
phis. And the Flint Police Department reg- 
ulations are— for section 1983 purposes— 
the regulations of the City of Flint.

[7] 'The Court now considers whether 
the fleeing-felon regulation of the Flint Po­
lice Department was violative o f the Fourth 
Amendment. This regulation is Exhibit B 
to the summary judgment motion at docket 
entry #  166. The regulation provides in 
pertinent part;

“ Deadly force may be used to effect an 
arrest only in extreme situations in order 
to protect officers or innocent citizens 
from bodily harm, or in order to prevent 
the escape of the perpetrator o f a serious

felony such as murder, rape, robbery, 
burglary, arson and then only if it is 
likely that the escape would result in the 
crime going unpunished. With the ex­
ception of offenses involving the daqger 
of great bodily harm or death, under no 
circumstances shall deadly force be used 
to effect the arrest of a fleeing offender 
known to the officer to be a juvenile.” 

It ^ u s  can be seen—and the Court hereby 
recognizes—that the Flint Police Depart­
ment regulation permits the shooting o f a 
fleeing non-juvenile felon who is escaping 
from a burglary where the burglar would 
go unapprehended absent the shooting. 
’The Court now considers whether this 
squares with the Gamer holding.

The Gamer holding is stated at page 
246:

“The officers may be justified in using 
deadly force if the suspect has commit­
ted a violent crime or if they have proba­
ble cause to believe that he is armed or 
that he will endanger the physical safety 
of others if he is not captured.”

But the Flint regulation permits the shoot­
ing of a nonjuvenile who merely is fleeing 
from a burglary and who cannot otherwise 
be apprehended. Such a fleeing burglar is 
not the committer of a violent crime. Fur­
thermore, under the regulation, the police 
need not establish probable cause to believe 
that the fleeing burglar is armed or that he • 
will endanger the safety of others. There­
fore, the Flint regulation is overbroad and 
in the situation discussed above, is violative 
of the Fourth Amendment. If the Billy 
Taylor shooting falls within this situation, 
the City caused the constitutionally tor­
tious death of the boy. And if there is no 
genuine issue of fact as to whether the 
Billy Taylor shooting falls therein, this 
Court is obligated under Rule 56 to grant 
plaintiffs’ summary judgment motion 
against the City.

[8] Let us move on to consider-whether 
there is a genuine issue o f fact as to wheth­
er Billy Taylor committed a violent crime 
or whether officer Collins had probable 
cause to believe Billy Taylor was armed or 
a danger to the physical safety of others.

I



574 FEDERAL SUPPLEMENT
1560
If a genuine issue of fact exists as to any 
of these disjunctives, the summary judg­
ment motion will be denied.

In this inquiry, the Court first considers 
tht issue of whether Collins had probable 
cause to believe Taylor had committed a 
violent crime. The record contains a num­
ber of items o f evidence that strongly ar­
gue that no such probable cause existed.

In this respect H is first noted ^ a t  in a 
proposed final pretrial statement, f i l^  and 
sign ^  by the City’s attorney at docket
entry # 152, it is stipulated that

“ William Taylor, Jr. had participated m a 
breaking and entering of an unoccupied 
dwelling at 1929 Basil Lane just before 
he was shot.”  See  ̂C of list of uncM- 
tested facts at page 5 of docket entry 
#  157.
Furthermore, in his deposition, officer 

Collins said utterly nothing about belie^ng 
that a violent crime had occurred Collins 
testified that upon leaving his police crais- 
er he went into the back yard of the bur- 
glkrized house. There, he noticed drawere 
laying on the ground, a slightly opened 
back door, a bathroom 
open and a waving curtain, 
d ^ s itio n  at page 27.) Seconds later M -  
linTsaw the fleeing silhouette of Billy Tay­
lor.

Finally, in response to the question of 
why it was necessary to shoot Taylor, Co - 
lins testified as follows;

“ I fired at the silhouette because there 
was no way I was going to ever be able 
to identify that person. There was no 
way I was ever going to be able to cateh 

'  that person. And he was flat out gomg 
to get away.”
Belatedly, however, on the eve of ^  

opinion, and having been informed that it 
was coming, and that Gam er was impor­
tant if not controlling, the City has f i l^  an 
affidavit of officer Collins stating that 

“ he was extremely concerned that a per­
sonal injury crime in addition to the 
breaking and entering was being perpe­
trated.”  . .

A rvnic might believe that tois affidavit is 
hnt a shabby last mmute aixempt m  t ^  
?piTns’ testimony such that the shootog

spena time ---------
(cs of the City, the Court will confine its 
examination to the merits of the question 
of whether the November 7, 1983 affidavit 
raises a genuine issue of fact as to ^^etoer 
Collins had probable cause to believe Billy 
Taylor had committed a violent crime.

The Collins affidavit lists three facts in 
support of Collins’ belief that a personal 
injury crime may well have oreurred^ 
First, Collins was aware from the dispatch 
that four males had been observed - 
ing and entering. Collins believed, on the 
basis of his experience that this was un­
usual. Second, it was clear to Collins, on 
the basis of “ observations” that people 
were living in the burglarized house. 
Third, when Collins reentered the front 
yard of 1927 Basil Lane in pursuit of Tay­
lor he became “ immediately concerned 
ab^ut the safety o f his partner, officer 
Peek. The concern stemmed from the fact 
that Collins did not see Peek in the front 
yard.

The fact that four people committed the 
breaking and entering does not really re­
late to the issue of violence. The four 
burglars could all have acted together m 
order to obtain as many items as possible 
from the burglarized house in the shortest 
possible time. Thus, the report that four 
persons had committed the burglary does 
little or nothing to establish that Collins 
had probable cause to believe a violent 
crime had or was being committed.

Siimlarly, Collins’ observation that people 
were living in the house is o f little value m 
establishing probable cause to believe that 
a violent crime had been committed. At 
the risk of being flippant in a very serious 
discussion, this Court must remmd the City 
that burglars—like the rest o f us—do not 
labor for no reward. ’The Taylor b u rg lar- 
like the Gamer burglar—entered the bur 
glarized house for the purpose o f stealing 
property. If people did not live m the 
burglarized house, what could have b^ n  
the source of the goods that the b u r g ^  
sought to steal? Clearly, the mere fact



ppear lawful even un- 
t would be a waste to 
; the motives and eth- 
Court will confine its 
nerits o f the question 
mber 7, 1983 affidavit 
e o f fact as to whether 
cause to believe Billy 

d a violent crime, 
irit lists three facts in 
relief that a personal 
well have occurred, 

'are from the dispatch 
been observed break- 

ollins believed, on the 
Qce that this was un- 
as clear to Ck)llins, on 
rvations”  that people 
j burglarized house.

reentered the front 
ane in pursuit of Tay- 
mediately concerned” 
F his partner, officer 
stemmed from the fact 
see Peek in the front

people committed the 
ig  does not really re- 
f violence. The four 
ave acted together in 
lany items as possible 
1 house in the shortest 
, the report that four 
ted toe burglary does 
establish that Collins 
to believe a violent 

ing committed. 
)bservation that people 
use is o f little value in 
i cause to believe that 

been committed. At 
>pant in a very serious 
t must remind the City 
the rest o f us—do not 

The Taylor burglar— 
glar— entered the bur- 
he purpose o f stealing 
e did not live in the 
what could have been 
x>ds that the burglars 
clearly, the mere fact

that people lived in the house does nothing 
to show that a violent crime occurred in the 
house.

And finally, the Court considers Collins’ 
“ concern” about the safety o f his partner, 
officer Peek. At page 29 of his deposition, 
Collins testified that when he ran into the 
back yard o f the burglarized house, he did 
not notice where officer Peek was. Collins 
was then asked (at page 29 of his deposi­
tion) the following question about officer 
Peek:

“ Weren’t you wondering where he was?” 
Collins answered as follows:

“ No, sir. My whole idea was to get to 
the backyard to cover the back.”
Collins now apparently alleges that in 

the moments between the time he was in 
the backyard and the time he ran to the 
front yard of the burglarized house, he 
became immediately concerned about 
Peek’s safety. Taking this as true, the 
Court cannot understand why Collins testi­
fied at his deposition that he believed he 
was not in a life threatening situation when 
he shot at Billy Taylor. (See pages 83 and 
84 o f his deposition.)

Nevertheless, assuming Collins really 
was concerned about Peek (as it must be 
assumed for purposes of this motion), the 
Court does not believe he had even a mod­
est basis to believe Peek had been the 
victim o f a violent crime. In the recent 
case of U.S. y. McManus, 719 F.2d 1395 
(CA 6, 1983), the Sixth Court clearly indi­
cated that probable cause is more than a 
mere possibility. ’The McManus court de­
clared that

“ Probable cause exists where the facts 
and circumstances within the, officer’s 
knowledge o f which he had reasonably 
trustworthy information are sufficient in 
themselves to warrant a man of reasona­
ble caution in the belief that an offense 
has been committed.”
The Court holds that the Collins affidavit 

does nothing more than show that there 
was a bare possibility that a violent crime 
had been committed and that Collins had a 
concern. But this affidavit comes nowhere 
near.establishing probable cause. Indeed, 
the Court must conclude that the affidavit

TAYLOR V. COLLINS
cite M 574 FSupp. 1554 (1983)

1561
does not raise a genuine issue o f fact as to 
the existence o f probable cause to think 
that a violent crime had been committed at 
the scene of the burglary. In other words, 
Collins’ deposition itself removes all genu­
ine issues of fact as to whether such proba­
ble cause existed and the Collins’ affidavit 
does not succeed in reviving such factual 
issues. Thus, the City cannot defeat this 
motion on the basis of the theory that 
factual issues remain as to whether Collins 
had probable cause to believe a violent 
crime had occurred at the burglarized 
house; alertness and concern for what is 
possible is simply not “ probable cause.”

The Court next considers the issue o f 
whether Collins had probable cause to be­
lieve Taylor was armed. Again, the Court 
considers the Collins deposition. At page 
67, Collins is asked whether the silhouette 
o f the fleeing Billy Taylor threatened Col­
lins. Collins answered the question in the 
affirmative. ’The next question on page 67 
is:

“ Did it (the silhouette) appiear to have a 
weapon?” Collins’ answer was:

“ I couldn’t say.”
At the bottom o f page 67 of the Collins 

deposition, in response to a question o f why 
Collins felt threatened by the silhouette, 
Collins testified as follows:

“ I didn’t know an3d;hing about i t ”
Finally, at page 67 of the deposition, as 
earlier noted, the following is recorded: 

Q: “ Can you tell me why you felt it was 
necessary to fire your gun at the fleeing 
silhouette or suspect?”
A: “ I fired at the silhouette because 
there was no way I was ever going to be 
able to identify that person. There was 
no way I was ever going to be able to 
catch that person. And he was flat out 
going to get away.”
’The issue in focus is whether there is a 

genuine issue of fact as to whether Collins 
had probable cause to believe that Billy 
Taylor was armed. By probable cause, the 
Court means reasonable trustworthy infor­
mation from which Collins could infer that 
Taylor was armed. But the Collins’ deposi-



1562
ti^n indicAtes that Collins himself didn t 
even believe for certain that Taylor was 
prmrf  ̂ nn*̂  l-now pt nn tacis trom which it 
would be aTflrm^vely inferred that Ta^or

574 FEDERAL SUPPLEMENT

w o u ia  o e  a i i i r m a u v c i j  ^
w a s h ed. Indee<i, the Court hearkens to 
its analysis o f whether a genuine issue of 
fact exists aS to Collins’ probable cause for 
believing a violent crime had occurred. 
The issue of whether Billy Taylor, as one 
of the four burglars, was armed is even 
narrower and thus the probable cause 
showing would have to be stronger.

But the Court comes away from a read­
ing of Collins’ sworn testimony with a firm 
conviction that Collins shot Taylor merely 
to prevent him from escaping and that 
there was no foundation whatsoever, in 
fact, for the belief that Taylor was armed. 
And the Collins’ affidavit does nothing to 
alter this conclusion. 'Thus, the Court finds 
that there is no genuine issue of fact but 
that Collins did not have probable cause to 
believe Taylor was armed. And so the 
Court now considers the third Gamer II 
safe harbor; the issue of whether Collins 
had probable cause to believe that Taylor 
was a danger to the physical safety of 
others if not captured.

Again, the Court hearkens to pages 67- 
69 of the Collins’ deposition where he testi­
fied that he shot Taylor to prevent escape. 
This is far from an assertion that Taylor 
had to be halted because he was a physical 
danger to others. In light o f the Gamer II 
result, this Court must read the “ physical 
danger to others’’ requirement as meaning 
that the officer must have probable cause 
to believe that the fleeing person is a 
threat to actually harm the per^n of oth­
ers. ’The deposition clearly indicates that 
Collins had no basis to believe this. The 
Court already has concluded that the Col­
lins’ affidavit does not raise a genuine is­
sue of fact as to a violent crime being 
committed at the house. The Court also 
concludes that the affidavit does not raise a 
genuine issue o f 'fact as to whether Taylor 
was a physical danger to others. Indeed, 
the affidavit simply does not cite to particu­
larized evidence that the burglar was dan­
gerous to the physical safety of others. 
Thus, the Ckiurt piust conclude that there is 
no genuine issue of fact as to the physical

danger to others issue. In other words, 
the conclusion that is compelled is that 
plaintiffs have shown, beyond a genuine 
issue of fact, that Collins did not have 
probable cause to believe that Taylor was a 
physical danger to others.

The Court has now explored and resolved 
the following substantive issues: (1) the 
June 16, 1983 Gamer decision is retroac­
tive; (2) the City enjoys no qualified immu­
nity as a defense against its section 1983 
constitutional torts; (3) the police depart­
ment’s regulations are, in the context of 
section 1983, the City regulations; (4) the 
Police Department regulations authorize a 
police officer to shoot at a fleeing non-juve­
nile felon if the shooting is necessary to 
apprehend the fleeing felon even where the 
police officer has no probable cause to be­
lieve (a) the suspect is armed or dangerous 
to the physical safety of others or (b) has 
committed a violent crime; (5) there is no 
genuine issue o f fact as to the conclusion 
that Collins did not have probable cause to 
believe that Taylor committed a violent 
crime; (6) there is no genuine issue of fact 
as to the conclusion that officer Collins ̂ lid 
not have probable cause to believe Taylor 
was armed; (7) there is no genuine issue of 
fact as to the conclusion that officer Collins 
did not have probable cause to believe that 
Taylor was a physical danger to others. 
Under the Gamer case, therefore, the 
Court must conclude that there is no genu­
ine issue of fact remaining as to the conclu­
sion that the City violated Billy Taylor’s 
Fourth Amendment rights through the 
July 8, 1980 shooting of Taylor by officer 
Collins. ’Therefore, the Court is obligated 
to grant plaintiffs’ motion for summary 
judgment against the City.

And there now is a partial federal court 
r^olution of the constitutionality of the 
Billy Taylor slaying. ’This ruling is the 
ineluctable result o f a chain of legal rea­
soning with Gamer II defeating the City 
at every point The law was clear—and 
the Court is obligated to faithfully apply 
the law.

The only possible way out for the City, 
was the retroactivity theory, and this theo-



jthers issue. In other words, 
ion that is compelled is that 
ive shown, beyond a genuine 
ct, that Collins did not have 
ise to believe that Taylor was a 
iger to others.
has now explored and resolved 

ig substantive issues; (1) the 
83 Gamer decision is retroac- 
City enjoys no qualified immu- 

ifense against its section 1983 
il torts; (3) the police depart- 
lations are, in the context of 
, the City regulations; (4) the 
rtment regulations authorize a 
r to shoot at a fleeing non-juve- 

the shooting is necessary to 
le fleeing felon even where the 
r has no probable cause to be- 
suspect is armed or dangerous 
cal safety o f others or (b) has 
violent crime; (5) there is no 

e o f fact as to the conclusion 
did not have probable cause to 

Taylor committed a violent 
ere is no genuine issue o f fact 
iclusion that officer Collins .did 
tbable cause to believe Taylor 
(7) there is no genuine issue of 
! conclusion that officer Collins 
probable cause to believe that 
a physical danger to others. 
Gamer case, therefore, the 
onclude that there is no genu- 
act remaining as to the conclu- 
J City violated Billy Taylor’s 
•ndment rights through the 
shooting o f Taylor by officer 
refore, the Court is obligated 
intiffs’ motion for summary 
linst the City.
now is a partial federal court 

the constitutionality o f the 
slaying. This ruling is the 

isult o f a chain o f legal rea- 
Gamer II defeating the City 
it. The law was clear—and 
obligated to faithfully apply

ossible way out for the City 
activity theory, and th^ theo-

_  , «**«»574F J
ry was doomed by the presence o f Gamer

^ r t  S t t  Gil-
Gamer II. Gamer /  was the golden 

..^jiS^PuT'the end o f 
t fe e in ^ o n l^ t^  'n the SnaTTilSSTir- 
But the City failed to hear Judge MprrifT

^  Whirlwind.
C iJron  JudgmeTir against the

RICCI V. VENTURE MAGAZINE. INC
CIUMS74F.S«ipp. IS«3 (1983) 1563

III CONCLUSION AND ORDER
For the reasons stated in the foregoing 

pinion, the Court hereby GRANTS plain^

2 ? n s t  motionagainst the City. Therefore, the Citv Ls
table to plaiMiffs. The Court will „Sify
counsel as to the date o f  a settlemenrm,

c ^ t e X “ trrtl  ̂ “ T  “ ■

IT IS SO ORDERED.

Joseph RICCI. Plaintiff.
V.

VENTURE MAGAZINE, INC, 
Defendant

Civ. A. No. 81-2182-K.

United States District Court,
D. Massachusetts.

Nov. 22, 1983.

P l-ccu .

1. Libel and Slander *=>42(1)

■ Under Massachneette’ privilege for re-

E e l s ’l d t  'Cflbiren.ent ofaimess and accuracy extends only to mat­
ter relevant to claimed defamatory “ stiTg -’

munication is reasonably susceptible o f  in­
terpretation in derogatory sense.

2. Libel and Slander *=42(1)

Under Massachusetts’ privileee for
tart of judicial prooeedtegsturSto^^^
report testimony offered in court that in 
lures another without determining whether' 
testimony is, m fact, true if journalist’s 
report o f testimony was fair anHccurate.
3. Libel and Slander «=42(1) .

law under Massachusetts
aw, fair and accurate”  report o f judicial 

p r^ ed in gs  need be neither exhaustiveTn 
detail, nor perfectly precise in languaire if
« » f a u a b n d g o u , e „ t o f . t o u r r t „ f X '„ ^

4. Libel and Slander «=42(1)

o f judicial proceedings to be 
^^bonable, not only must defamatory
stmg arise from unfair and inaccurate 

report, but also lack o f fairness a n d ^ ^
y ^  to some fault o f reporter.

5. Libel and Slander «=42(i)

Report in magazine article that crimi

SaTrt t® Publishfair and accurate report of occurrence at cnmma ri-ioi ii.- , >ureQce ai
.. ■ j ------**'*«-i. ui a cnminal prosecu- „ j  — n^vuege to publish
tion filed a defamation action arising out o f ^  ? accurate report o f occurrence at
S T  an incfdent in S t  d T ’ "lagazine article

threatened a T T  " a«e^tion  was contra
witness m court On a motion for sumriia- defendant’s attorney._  . j  a motion for sumriia-
^  ju d ^ e n t  the District Court, Keeton J

T T T  ® a criminal prose-
cubon threatened a witness in court S

P «"
though It did not disclose that the allega-

®* I'IJ’cl and Slander «=»42(1)

^ t  cnniinal defendant threatened a wit- 
m court was privileged as report o f an 

^ eren ce  expressed by a participant in judi-

iT  “  opin­ion, which was protected as such, or tf