Jones v. Marshall Court Opinion

    132 528 FEDERAL REPORTER, 2d SERIES

nying makeup time for erroneous previ­
ous rulings on which no review was 
sought, no purpose is served by vacating 
the challenged ruling. We deem it suffi­
cient that we have set forth the guide­
lines applicable in the future.

I  KEt NUMBER SYSTEM)
L T J

Flozell JONES, Administrator of the 
Estate of Dennis Jones, Appellant,

V .

Keith MARSHALL, Appellee.
No. 55, Docket 74-2545.

United States Court of Appeals, 
Second Circuit.

Argued Sept. 3, 1975.
Decided Nov. 24, 1975.

Civil rights action was instituted in 
respect to fatal shooting of an individual 
by a police officer. The United States 
District Court for the District of Con­
necticut, M. Joseph Blumenfeld, J., 383 
F.Supp. 358, granted defendant’s motion 
for summary judgment, holding that 
Connecticut common-law rule afforded a 
privilege to officer under circumstances 
of case, and plaintiff appealed. The 
Court of Appeals, Oakes, Circuit Judge, 
held that Connecticut common-law rule 
allowing a police officer to use deadly 
force to effect an arrest for a felony is 
not fundamentally unfair, and that po­
lice officer was afforded privilege under 
law of Connecticut to fatally wound felo­
ny suspect fleeing from stolen automo­
bile and could not be held liable in dam­
ages to suspect’s father under civil rights 
statute where it waa stipulated that offi­
cer reasonably believed that a felony had 
been committed by suspect and that use 
of force was actually necessary in order 
to effect an arrest.

Affirmed.

1. Constitutional Law ®=>43(1)
Though it was claimed that Connect­

icut common-law rule allowing a police 
officer to use deadly force to effect an 
arrest for a felony was violative of pro­
cedural due process as permitting arbitra­
ry imposition of death by officer, viola­
ting presumption of innocence, and deny­
ing suspect right to trial by jury, defend­
ant conceded away claim by arguing that 
model penal code rule, to which claim was 
equally applicable, was federal law un­
der statute governing deprivation of civil 
rights and was, therefore, constitutional. 
C.G.S.A. § 53a-22; 42 U.S.C.A. § 1983; 
U.S.C.A.Const. Amend. 14.

2. Courts e=361(2)
Federal courts are not bound by 

state laws of torts, or defenses of privi­
lege that those law's provide, in inter­
preting scope of statute governing depri­
vation of civil rights under color of state 
law. 42 U.S.C.A. § 1983.

3. Courts <^361 (2)
A state rule of immunity or privi­

lege which allow's a state officer to es­
cape liability for a deprivation of rights, 
privileges, or immunities secured by the 
Constitution of the United States is not 
controlling under statute governing dep­
rivation of civil rights under color of 
state law. 42 U.S.C.A. § 1983.

4. Courts ®=>361(2)
The Rules of Decision Act does not 

mandate application of state law' in ac­
tions brought under statute governing 
deprivation of civil rights under color of 
state law w'here the law’ to be applied is 
federal law albeit that state law is incor­
porated by reference. 28 U.S.C.A. 
§ 1652; 42 U.S.C.A. § 1983.

5. Civil Rights 13.3(1)
Not every tort committed against a 

private person by an official acting un­
der state law rises to the deprivation of 
a constitutional right. 42 U.S.C.A. 
§ 1983.
6. Civil Rights 13.8(1)

Qualified immunity of an official 
acting under state law varies w’ith scope 
of discretion and responsibilities of office



133
®=43(1)

is claimed that Connect- 
rule allowing a police 

:adly force to effect an 
ny was violative of pro- 
iss as permitting arbitra- 
death by officer, viola- 
of innocence, and deny- 
to trial by jury, defend- 

ly claim by arguing that 
rule, to which claim was 
le, was federal law un- 
■ning deprivation of civil 
-herefore, constitutional. 
2; 42 U.S.C.A. § 1983; 
mend. 14.

(2)
rts are not bound by 
ts, or defenses of privi- 
laws provide, in inter- 
statute governing depri- 
ĥts under color of state 

. § 1983.

[2)
of immunity or privi- 

s a state officer to es- 
a deprivation of rights, 
nunities secured by the 
he United States is not 
statute governing dep- 
rights under color of 

.S.C.A. § 1983.

:2)
Decision Act does not 

ion of state law’ in ac- 
ider statute governing 
dl rights under color of 
the law to be applied is 
that state law is incor- 

'erence. 28 U.S.C.A. 
:.A. § 1983.

=  13.3(1)
rt committed against a 
7 an official acting un- 
;s to the deprivation of 

right. 42 U.S.C.A.

=  13.8(1)
munity of an official 
e law varies with scope 
responsibilities of office

and all circumstances as they reasonably 
appear at time of action on w’hich liabili­
ty is sought to be based. 42 U.S.C.A. 
§ 1983.

7. Civil Rights 0=13.3(1)
Courts 0=361(2)

The federal courts are not Iwund by 
whatever privilege a state law may af­
ford to an official acting unrier state 
law, but the federal courts are still by no 
means free to elevate whatever view of 
the privilege they feel may be jjreferable 
to the constitutional level envisaged by 
the statute governing dej>rivation of civil 
rights. 42 U.S.C.A. § 1983.

8. Civil Rights '^13.4(2)
A use of force rule under statute 

governing deprivation of civil rights 
would neither permit brutal j>olice con­
duct, nor allow such aj)plication of undue 
force that police conduct shocks the con­
science; such factors w’ould l)c analyzed 
as the need for an application of force, 
the relationship between the need and 
the amount of force that was used, the 
extent of injury inflicted, and whether 
force was applied in a good-faith effort 
or maliciously or sadistically. 42 U.S. 
C.A. § 1983.

9. Civil Rights <s= 13.4(3)
A rule limiting privilege of a police 

officer to use deadly force to effect an 
arrest to situations where crime involved 
causes or threatens death or injurious 
bodily injury, or w'here there is substan­
tial risk that person to l>e arrested will 
cause death or serious lK)dily harm if his 
apprehension is delayed would l>e prefer­
able, but given history and current sta­
tus of law of privilege, ready availability 
of handguns to populace at large, and 
needs of law enforcement in a society 
where violence is W'ides[)read, rule can­
not be codified as a federal standard to 
w'hich all states would be subject. 42 
U.S.C.A. § 1983.

tied rule as an arresting officer’s privi­
lege to use deadlv force. 42 U S C A 
§ 1983.

JONES V. MARSHALL
f i t p  as 52S F.2d 132 (1975)

11. Arrest e=68
Connecticut common-law rule af­

fording privilege to a police officer to 
use force likely to cause death if he rea­
sonably believes that a felony has been 
committed by individual sought to be ap­
prehended and that force is actually nec­
essary to effect arrest is not fundamen­
tally unfair. C.G.S.A. § 53a-22; 42 U.S 
C.A. § 1983; U.S.C.A.Const. Amend. 14.
12. Assault and Battery ®=»64

Civil Rights «=  13.4(3)
Police officer was afforded privilege 

under law of Connecticut to fatally- 
wound felony suspect fleeing from stolen 
automobile and could not be held liable 
m damages to suspect’s father in civil 
rights action where it was stipulated 
that officer reasonably believed that a 
felony had been committed by suspect 
and that use of force was actually neces­
sary in order to effect an arrest C G 
S.A. § 53a-22; 42 U.S.C.A. § 1983; U.s’ 
C.A.Const. Amend. 14.

Louis I. Parley, West Hartford, Conn 
(Bruce C. Mayor, Hartford, Conn., on the 
brief), for appellant.

Robert Y. Pelgrift, Hartford, Conn., 
for appellee.

Before SMITH, MANSFIELD and 
OAKES, Circuit Judges.

10. Civil Rights 13.4(3)
Within statute governing depriva­

tion of civil rights, state must be given 
some leeway in administration of the 
systems of justice, at least insofar as 
determining the scope of such an unset-

OAKES, Circuit Judge:
This appeal presents the question 

whether a civil rights action lies, under 
42 U.S.C. § 1983, against a jiolice officer 
who, in the course of his duty, shoots 
and kills a jKjrson who has committed a 
felony and is trying to escajie arrest. 
The crime involved here—auto theft— 
did not involve conduct threatening use 
of deadly force; nor was there, at the 
time of the shooting, substantial risk 
that the person fleeing arrest w’ould 
cause death or serious bodily harm to 
anyone if his apprehension w-ere delayed. 
The United States District Court for the 
District of Connecticut, M. Joseph Blu-



134 528 FEDERAL REPORTER, 2d SERIES

menfeld, Judge, granted the defendant 
police officer’s motion for summary 
judgment, holding that the Connecticut 
common law rule as stated in JVfarty'n v. 
Donlin, 151 Conn. 402, 198 A.2d 700 
(1964), affords a privilege, in the circum­
stances of this case, to an officer using 
deadly force who reasonably believes 
such force is necessary to effect an ar­
rest for a felony. Judge Blumenfeld 
ruled that since the Connecticut privilege 
is not unconstitutional, it affords a de­
fense to the § 1983 action for depriva­
tion of the fleeing persons’s life without 
due process of law. 383 F.Supp. 358 
(D.Conn.l974).' We affirm.

The parties have stipulated the follow­
ing facts. On August 29, 1969, Officer 
Marshall of the West Hartford Police 
Department w'as cruising in his patrol 
car in the ordinary course of his duties. 
While on patrol he observed a Cadillac 
automobile occupied by three Negro 
males, including the appellant s decedent, 
Dennis Jones, traveling in the vicinity of 
the Hartford Golf Club. Through radio 
contact wdth headquarters, Marshall re­
ceived the information that the Cadillac 
had been reported as stolen, so he began 
to follow it as it drove through the Golf 
Club and adjacent streets. Both cars 
proceeded for several blocks, neither ex­
ceeding 35 to 40 miles per hour nor vio­
lating any traffic regulations. While 
following the car Officer Marshall did 
not activate his siren or warning light or 
make any attempt to cause the car to 
come to a stop. He w’as then informed 
over his radio that assistance from the 
Hartford Police Department was on the 
way.

Evidently the individuals in the Cadil­
lac became aware that they were being 
followed because after circling back onto 
Mark Twain Drive from Dillon Road, 
they accelerated to about 80 miles per 
hour and drove north on Mark Twain 
Drive. After traveling several blocks at 
that speed the car reached the end of 
the Mark Twain Extension and skidded 
to a halt. Officer Marshall, who had 
followed, also came to a sliding stop, and 
the braking of both cars created a large 
cloud of dust. The officer alit from his 
cruiser ŵ ith his weapon drawn. Since 
the occupants of the car were not imme­
diately visible he climbed to the top of a 
nearby embankment. At that point he 
observed two men running" across an 
open field and called to them to halt. 
They momentarily turned to face him, 
but then turned and began to run away 
toward a nearby wooded area. Without 
firing a warning shot or attempting any 
further means of apprehension. Officer 
Marshall fired his gun at Dennis Jones, 
who was then about 125 feet away 
across rough terrain which contained a 
gully and was covered with bushes and 
underbrush. The shot was aimed at the 
decedent’s leg, but struck him in the left 
buttock, causing internal injuries which 
resulted in his death. It is stipulated 
that neither Dennis Jones nor the other 
two occupants of the car, all of whom 
were minors approximately 16 years old, 
were armed or had specifically threat­
ened  ̂ physical injury in any manner to 
Officer Marshall or anyone else. It is 
also stipulated that the automobile pur­
suit did not endanger any other individu­
al than the occupants, although had the 
chase continued obviously it might have.®

1. The action originally named the Town of 
West Hartford and its police chief and town 
manager, but the action was dismissed as to 
them. Cf. City of Kenosha v. Bruno. 412 U.S. 
507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); 
Moor V. County of Alameda, 411 U.S. 693, 93 
S.Ct. 1785, 36 L.Ed.2d 596 (1973).

2. It may be noted that both of the young men 
in the car with Dennis Jones were arrested by 
the Hartford police on the day following the 
auto theft and shooting. Neither was charged 
with a felony; the charge against one was

ultimately dropped and the other pleaded 
guilty to a misdemeanor charge and received a 
suspended sentence.

3. It does not appear from the stipulation 
whether Jones was the driver or a passenger 
of the Cadillac. Nor does it appear what his 
age was, although appellants brief states that 
he was 16 years old. It also does not appear 
what caliber revolver Officer Marshall w’as us­
ing or the extent of his training in marksman­
ship.



tIES

individuals in the Cadil- 
ire that they were being 
e after circling back onto 
•rive from Dillon Road, 
i to about 80 miles per 
! north on Mark Twain 
•aveling several blocks at 
car reached the end of 

n Extension and skidded 
ficer Marshall, who had 
ime to a sliding stop, and 
both cars created a large 
The officer alit from his 
s weapon drawn. Since 
r the car were not imme- 
e climbed to the top of a 
ment. At that point he 
men running across an 
called to them to halt, 

•ily turned to face him, 
and began to run away 
 ̂ wooded area. Without 

I shot or attempting any 
of apprehension. Officer 
lis gun at Dennis Jones, 

about 125 feet away 
rrain which contained a 
jovered with bushes and 
le shot was aimed at the 
lut struck him in the left 
' internal injuries which 
death. It is stipulated 
nnis Jones nor the other 
)f the car, all of whom 
moximately 16 years old, 
had specifically threat- 

njury in any manner to 
1 or anyone else. It is 
hat the automobile pur- 
mger any other individu- 
ipants, although had the 
obviously it might have.’

;d and the other pleaded 
leanor charge and received a 
:e.
)pear from the stipulation 
IS the driver or a passenger 
“Jor does it appear what his 

appellants brief states that 
)ld. It also does not appear 
ver Officer Marshall was us- 
3f his training in marksman-

It was agreed by the parties that the 
law in Connecticut at the time of the 
shooting in this case was that theft of a 
motor vehicle was a felony offense 
Conn.Gen.Stat. § 53a-119," but that joy­
riding was only a misdemeanor. Conn. 
Gen.Stat. § 14-229 (use without owner’s 
permission).’  The common law rule in 
Connecticut is that an arresting officer 
may use such force as he reasonably be­
lieves to be necessary under all of the 
circumstances to effect a legal arrest 
and to prevent an escape. The use of 
force likely to cause death, however is 
privileged only if the officer reasonably

4. Larceny of any automobile is now a "Class 
D” felony. Conn.Gen.Stat. § 53a 123. Under 
a complicated formula set forth in Conn.Gen 
Stat. § 53a-35(b)(4), Class D felonies carr\- a 
maximum sentence of five years. While the 
parties stipulated that the offense was a felonv 
at the time of the shooting, the stipulation 
erroneously refers to Conn.Gen.Stat. § 53a 47 
a provision dealing with acquittal on grounds 
of mental disease or defect. The crime was, 
however, a felony under Conn.Gen.Stat § 53a 
57. See State v. Keeby. 159 Conn. 201, 268 
A.2d 652 (1970), cert, denied, 400 U.S. 1010 91 
s  et. 569, 27 L.Ed.2d 623 (1971). The automo­
bile theft provision in the Connecticut code 
now appears as Conn.Gen.Stat. § 53a-119

5. Conn.Gen.Stat. § 53a 25(a) defines a felony 
as an offense “ for which a person may be 
sentenced to a term of imprisonment in excess 
of one year , The statute also pro­
vides that any offense defined in anv other 
section of the Connecticut General Statutes 
which “ by virtue of any expressly specified 
sentence, is within the definition set forth in 
subsection (a) shall be deemed an unclassified 
felony.” Id. § 53a-25(c). Since “joyriding" is 
punishable by a prison sentence of up to one 
year for a first offense, up to 10 years for a 
second offense and up to 15 years for a third 
offense, id. § 14-229, it is somewhat of a hy­
brid for the purpose of making this classifica­
tion. However, as to first offenses, unauthor­
ized use of a motor vehicle would appear to 
constitute only a misdemeanor. See id (> 53a- 
26(c).

6. At least as of 1974, the Connecticut State 
Police Rules §§ 20-29 limit the use of deadly 
force to two situations: (1) where the felony is 
one involving risk of serious bodily harm and 
(2) where there is a risk that the felon’s efforts 
to escape will cause harm to the officer or 
others. Apparently the West Hartford Police 
Department had issued a Training Bulletin 
(Oct. 27, 1967), directing officers not to shoot 
at a motor vehicle (or presumably its occu-

JONES V. MARSHALL
Cite as52S F.2d 132 (1975) 135

believes that a felony has been commit­
ted by the individual sought to be ap­
prehended and the force used was actu­
ally and reasonably believed by him in 
good faith to be necessary to effect the 
arrest. See Martyn v. Donlin, supra, 151 
Conn, at 411-12, 198 A.2d at 705-06.’  
During a codification and revision of 
Connecticut’s criminal laws occurring 
after the facts in this case, the Martyn 
rule was retained and codified as a part 
of the Connecticut criminal law.’

The appellant’s argument involves two 
simple steps. First, that in actions

pants) except in those limited circumstances.
It does not appear fronr the stipulation of 
facts, however, whether Officer Marshall was 
aware of this Bulletin or of the extent of its 
effect.

7. Conn.Gen.Stat. § 53a-22 provides in part:
(a) For purposes of this section, a reason­

able belief that a person has committed an 
offense means a reasonable belief in facts or 
circumstances which if true would in law 
constitute an offense. If the believed facts 
or circumstances would not in law constitute 
an offense, an erroneous though not unrea­
sonable belief that the law is otherwise does 
not render justifiable the use of physical 
force to make an arrest or to prevent an 
escape from custody. A peace officer or an 
authorized official of the department of cor- 
rection who is effecting an arrest pursuant 
to a warrant or preventing an escape from 
custody is justified in using the physical 
force prescribed in subsections (b) and (c) 
unless such warrant is invalid and is known 
by such officer to be invalid.

(b) Except as provided in subsection (a), a 
peace officer or authorized official of the 
department of correction is justified in using 
reasonable physical force upon another per­
son when and to the extent that he reason­
ably believes it necessary to:

(1) Effect an arrest or to prevent the es­
cape from custody of a person whom he 
reasonably believes to have committed an 
offense, unless he knows that the arrest or 
custody is unauthorized: or

(2) defend himself or a third person from 
the use or imminent use of physical force 
while effecting or attempting to effect an 
arrest or while preventing or attempting to 
prevent an escape.

(c) A peace officer or authorized official of 
the department of correction is justified in 
using deadly physical force upon another 
person for the purposes specified in subsec-



528 FEDERAL REPORTER, 2d SERIES

brought under the federal civil rights 
statutes the law to be applied is federal 
law—while reference may be made to 
state or other law consistent with the 
United States Constitution, it is not 
mandatory, as a matter of choice of law, 
that state law be applied. Second, fed­
eral decisions and modern fx>licy indicate 
that the federal rule to be applied in 
actions under the federal civil rights 
statutes, e. g., 42 U.S.C. §§ 1983, 1985(3), 
is that use of deadly force is not jjermis- 
sible in the case of any escape where a 
felony has been committed except in a 
few' limited situations essentially embod­
ied in ALI Model Penal Code § 3.07 (Pro­
posed Official Draft 1962).* Ap)pellant

argues that the use of force is justifiable 
“ only where the arresting officer l>e- 
lieves that (1) the crime for w’hich the 
arrest is made involved conduct includ­
ing the use or threatened use of deadly 
force, or (2) there is a substantial risk 
that the person to be arrested w'ill cause 
death or serious bodily harm if his ap­
prehension is delayed.” Id.

[1] Appellant further argues that the 
common law rule in Connecticut lacks 
logical support, is based upon historically 
outmoded concepts of outlaw'ry and trial 
by ordeal and has been uniformly disap­
proved by scholars.® In contrast, appel­
lant argues, the Model Penal Code rule.

tion (b) only when he reasonably believes 
that such is necessary to:

(1) Defend himself or a third person from 
the use or imminent use of deadly physical 
force; or

(2) effect an arrest or to prevent the es­
cape from custody of a person whom he 
reasonably believes has committed or at­
tempted to commit a felony.

8. The ALI Model Penal Code § 3.07 (Proposed 
Official Draft 1962) makes the following pro­
posal for the use of force in law enforcement:

(1) Use o f force justifiable to effect an ar­
rest. Subject to the provisions of this Sec­
tion and of Section 3.09, the use of force 
upon or toward the person of another is jus­
tifiable when the actor is making or assist­
ing in making an arrest and the actor be­
lieves that such force is immediately neces­
sary to effect a lawful arrest.

(2) Limitations on use o f force.
(a) The use of force is not justifiable un­

der this Section unless:
(i) the actor makes known the purpose of 

the arrest or believes that it is otherwise 
known by or cannot reasonably be made 
known to the person to be arrested; and

(ii) when the arrest is made under a war­
rant, the warrant is valid, or believed by the 
actor to be valid.

(b) The use of deadly force is not justifia­
ble under this Section unless:

(i) the arrest is for a felony; and
(ii) the person effecting the arrest is au­

thorized to act as a peace officer or is assist­
ing a person whom he believes to be autho­
rized to act as a police officer; and

(iii) the actor believes that the force em­
ployed creates no substantial risk of injury 
to innocent persons; and

(iv) the officer believes that:

(1) the crime for which the arrest is made 
involved conduct including the use or threat­
ened use of deadly force; or

(2) there is a substantial risk that the per­
son to be arrested will cause death or seri­
ous bodily harm if his apprehension is de­
layed.

9. The claim is also made that the Connecticut 
rule violates the due process clause of the 
Fourteenth Amendment because, procedurally 
speaking, it permits the arbitrary imposition of 
death by the officer, violates the presumption 
of innocence, and denies the suspect a right to 
trial by jury. Of course each of the due proc­
ess arguments would apply equally where 
deadly force is allowed to effect an arrest for a 
crime which does involve “ conduct including 
the use or threatened use of deadly force” or 
where "there is a substantial risk that the per­
son to be arrested will cause death or serious 
bodily harm if his apprehension is delayed.” 
ALI, note 8 supra, § 3.07(b)(iv). The killing by 
the police officer in such a case would, as 
much as the killing here, deprive the escapee 
of his life without any procedural guarantees. 
It would also raise the Eighth Amendment im­
plications regarding arbitrary imposition of the 
death penalty sanction set forth in Furman v. 
Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 
L.Ed,2d 346 (1972), due to the indiv'idual ar­
resting officer’s discretion in his exercise of 
the power to kill. Thus, by arguing that the 
Model Penal Code rule is federal law under 42 
U.S.C. § 1983, and is therefore constitutional, 
the appellant has conceded away, as Judge 
Blumenfeld held, his procedural due process 
and Furman arguments; death under Model 
Penal Code situations could surely be argued 
to be equally arbitrary and without procedural 
safeguards. We need not, and therefore do 
not, consider the argument further.



lES

use of force is justifiable 
le arresting officer be- 
,he crime for which the 
involved conduct includ- 
-hreatened use of deadly 
2re is a substantial risk 
to be arrested will cause 
i bodily harm if his ap- 
layed.” Id.

further argues that the 
le in Connecticut lacks 
s based upon historically 
(ts of outlawry and trial 
IS been uniformly disap- 
trs.® In contrast, appel-
Model Penal Code rule,

for which the arrest is made 
:t including the use or threat- 
adly force; or
substantial risk that the per- 

;ted will cause death or seri- 
m if his apprehension is de-

so made that the Connecticut 
■ due process clause of the 
idment because, procedurally 
its the arbitrary imposition of 
cer, violates the presumption 
I denies the suspect a right to 
course each of the due proc- 

would apply equally where 
lowed to effect an arrest for a 
s involve "conduct including 
ened use of deadly force" or 
substantial risk that the per- 

d will cause death or serious 
is apprehension is delayed.”
, § 3.07(b)(iv). The killing by 
r in such a case would, as 
ng here, deprive the escapee 
it any procedural guarantees, 
e the Eighth Amendment im- 
ng arbitrary imposition of the 
iction set forth in Furman v. 
S. 238, 92 s e t .  2726, 33 
2), due to the individual ar- 
discretion in his exercise of 

Thus, by arguing that the 
; rule is federal law under 42 
id is therefore constitutional,
5 conceded away, as Judge 
his procedural due process 

jments; death under Model 
lions could surely be argued 
trary and without procedural 
need not, and therefore do 
argument further.

JONES V. MARSHALL
Cite as 52S F.2d 132 (IfiT.'ji

137
which has been adopted in form or sul>- 
stance in a number of states by statute,'" 
is consistent with the laws and Constitu­
tion of the United States and the needs 
of law enforcement {xirsonnel. He 
therefore concludes that the rule of the 
Model Penal Code should be adojited in 
this case under 42 U.S.C. § 1983.

The appellee s position is less complex. 
He assumes that since the challenged 
law of Connecticut, as expressed in Mar- 
tyn V. Donlin, supra, and in the new 
Connecticut Penal Code, is constitutional, 
in that it does not “shock the con­
science,” Rochin v. California, 342 U.S 
165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); 
United States v. Toscanino, 500 F.2d 267, 
273 (2d Cir. 1974), or otherwise offend 
any constitutional principle, it is there­
fore the applicable rule in the case. This 
was the position taken by Judge Blu- 
menfeld in his decision below. 383 
F.Supp. at 362.

[2-4] With this view, however, we 
cannot agree. It has long been under­
stood that in interpreting the scope of 
§ 1983 we are not bound by the state 
law of torts or the defenses of privilege 
that law provides. In an unbroken line 
of Supreme Court cases which includes 
Ex parte Virginia, 1(X) U.S. 339, 346, 25 
L.Ed. 676 (1879); United States v. Clas­
sic, 313 U.S. 299, 326, 61 S.Ct. 1031, 85 
L.Ed. 1368 (1941); Screws i’. United 
States, 325 U.S. 91, 109-11, 65 S.Ct. 1031 
89 L.Ed. 1495 (1945); Williams v. United 
States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 
774 (1951); Monroe v. Pape, 365 U.S. 
167, 183-87, 81 S.Ct. 473, 5 L.Ed.2d 492 
(1961); Pierson i-. Ray, 386 U.S. 547, 87 
S.Ct. 1213, 18 L.Ed.2d 288 (1967), knd 
Scheuer v. Rhodes, 416 U.S. 232, 237-38 
94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the’ 
conduct of police officers and other state
10. E.g.. Ill.Ann.Stat., ch. 38, § 7-5 (Smith-Hurd 

1962); N.H.Rev.Stat.Ann. § 627:5 (1971)- 18 
C.P.S.A. § 508 (1972).

11. The Rules of Decision Act, 28 U.S.C.
§ 1652, does not require a different result. It 
provides that "[t]he laws of the several states, 
except where the Constitution or treaties of 
the United States or Acts of Congress other­
wise require or provide, shall be regarded as 
rules of decision in civil actions in the courts

528 F.2d— j

officials has, bofh civilly (Monroe, Pier­
son, Scheuer) and criminally (Classic, 
Screws, Williams), licen held subject to 
standards demanded by the Constitution 
of the United .States, regardless o f ap­
probation by .state law." This is neces­
sarily so becjuise one of the principal 
purposes underlying the Civil Rights 
Acts of 1871 and 1875 was to protect 
individuals against “ (mjisuse of fxiwer, 
possessetl by virtue of state law and 
made possible only because the wrong­
doer is clothed with the authority of 
state law .” United States v.
Classic, suj>ra, 3)3 U.S. at 326, 61 S.Ct. 
at 1043. .See ) H. Schwartz, Statutory 
Historj’ of the United States: Civil
Rights 591 6.53 (1970 ed.). See generally 
Monroe v. Pajx', sujma, 365 U.S. at 173, 
81 S.Ct. 473. The phrase in Section 1 of 
the Act of April 20, 1871, 17 Stat. 13 
(known as Civil Rights Act of 1871 and 
also as “ the Ku Klux Act” ), as amended, 
42 U.S.C. § 198.3, which provides for lia­
bility, “ any law, statute, ordi­
nance, regulation, custom or usage of the 
State to the contrary notwithstanding,” 
makes this patently clear. A state rule 
of immunity or j)rivilege which allows a 
state officer to e.scape liability for a dep­
rivation of “ rights, jjrivileges, or immu­
nities secured by the Constitution of the 
United StaU;s” is sim{)ly not controlling 
under 42 U..S.C. § 1983.

[5] At the sanje time not every tort 
committed agminst a private {>erson by 
an official acting und<T state law rises to 
the deprivatiofi of a constitutional right; 
that is to say , there is no “general feder­
al tort law .” Griffin i\ Breck-
enridge, 403 U.S. 8K, 102, 91 S.Ct. 1790,
29 L.E<I.2<I 338 (1971) (interpreting
§ 1985(3), derivc-d from § 2 of the Act of 
April 20, 1871, 17 .Stat. 13). For exam-

of the United Stat<-v, in cases where they ap­
ply.” However, th<- Rules of Decision Act 
does not mandate application of state law in 
actions brought und<-r 42 U.S.C. § 1983 where 
the law to be applied is federal law, even if 
state law is incorfFirated by reference as a 
part of that law Construction and elaboration 
of the reach of (, 1983 is an issue of federal 
law.



pie, state legislators’ immunity, Tenney 
V . Brandhove, 341 U.S. 367, 71 S.Ct. 783,
95 L.Ed. 1019 (1951), and judges’ immu­
nity, Pierson v. Ray, supra, 386 U.S. at 
553-55, 87 S.Ct. 1213, each established at 
common law, have survived the enact­
ment of § 1983. The latter, in fact, has 
been adopted as federal common law. 
Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 
351, 20 L.Ed. 646 (1872). But Pierson v. 
Ray, supra, 386 U.S. at 555, 87 S.Ct. 
1213, points out that police officers never 
had an absolute and unqualified immuni­
ty at common law. In that case the 
Supreme Court did recognize a limited 
privilege under § 1983 in a false arrest 
situation where the arrest was made in 
good faith under a statute later held un­
constitutional. The Court expressly up­
held “ the defense of good faith and 
probable cause available to
the officers in the common-law action 
for false arrest and imprisonment 

. .’’ 386 U.S. at 557, 87 S.Ct. at 
1219. In so doing, the Court looked to 
“ the prevailing view in this country, cit­
ing general sources, such as the Restate­
ment (Second) of Torts § 121 (1965), and 
1 Harper & James, The Law of Torts 
§ 3.18 (1956). 386 U.S. at 555, 87 S.Ct. 
at 1218. It is true that the court in 
Pierson referred to the expansive lan­
guage of Monroe v. Pape, supra, 365 U.S. 
at 187, 81 S.Ct. 473, which states that 
§ 1983 “should be read against the back­
ground of tort liability that makes a 
man responsible for the natural conse­
quences of his actions.” Pierson v. Ray, 
supra, 386 U.S. at 556, 87 S.Ct. at 1219. 
The opinion modified that phrase, how­
ever, to recognize some affirmative de­
fenses under § 1983, sajdng Part of the 
background of tort liability, in the case 
of police officers making an arrest, is the 
defense of good faith and probable 
cause.” 386 U.S. at 556—5/, 87 S.Ct. at 
1219.

[6] So, too, in discussing the qualified 
immunity of the executive branch of a 
state government, the Supreme Court 
has referred to a variety of general 
sources—English common law and stat­
utes, federal and state cases—to support

an immunity which varies with “ the 
scope of discretion and responsibilities of 
the office and all the circumstances as 
they reasonably appeared at the time of 
the action on which liability is sought to 
be bsised.” Scheuer v. Rhodes, supra, 
416 U.S. at 247, 94 S.Ct. at 1692; see 
also id. at 239 n. 4, 240^9.

[7] W’hile we are, then, not bound by 
whatever privilege state law may afford 
to the officer we still are by no means 
free to elevate whatever view of the 
privilege we think to be preferable to 
the constitutional level envisaged by 
§ 1983. Rather, with only the example 
of Pierson and Scheuer before us we 
must make a studied attempt to weigh 
the competing interests in the light of 
historical and current cases and commen­
tary to arrive at a scope of the privilege 
to use deadly force in particular instanc­
es.

Initially we should point out that we 
agree wdth appellant that the problem of 
determining the appropriate rule of priv­
ilege for the use of force by arresting 
officers is complicated by the fact that 
the common law rule evolved when only 
a few crimes were felonies, and all of 
them involved force or violence (arson, 
burglary, robbery, rape, murder, man­
slaughter) and were punishable by death 
and forfeiture of lands and goods. See 
ALL Model Penal Code § 3.07, Comment 
3 at 56 (Tent. Draft No. 8, 1958). (“ Such 
rational justification for the common law 
rule as can be adduced rests largely on 
the fact that virtually all felonies in the 
common law period were punishable by 
death.” ) But see Note, Justification for 
the Use o f Force in the Criminal Lav.-, 13 
Stan.L.Rev. 566, 572-82 (1961). Many 
American jurisdictions, Connecticut in­
cluded, have of course expanded the 
number of felonies to include numerous 
crimes not involving force or violence, 
crimes which relate to property and to 
compliance with complex governmental 
regulations (e. g., income tax fraud). As 
the scope of “ felony” crimes has expand­
ed wholly away from the concept of vio­
lence which underlay its common law or­
igin, the use of the felony label to justi-



hich varies with “the 
n and responsibilities of 
,11 the circumstances as 
appeared at the time of 
ich liability is sought to 
leuer v. Rhodss, supra,

94 S.Ct. at 1692; see 
L 4, 240-49.
are, then, not bound by 

ge state law may afford 
■e still are by no means 

whatever view of the 
ink to be preferable to 
lal level envisaged by 

with only the example 
Scheuer before us we 

tudied attempt to weigh 
interests in the light of 
irrent cases and commen- 
t a scope of the privilege 
mce in particular instanc-

should point out that we 
Bllant that the problem of 
; appropriate rule of priv- 
ise of force by arresting 
plicated by the fact that 
w rule evolved when only 
were felonies, and all of 
force or violence (arson, 

lery, rap>e, murder, man- 
were punishable by death 
of lands and goods. See 
nal Code § 3.07, Comment 
Draft No. 8, 1958). (“ Such 
cation for the common law 
? adduced rests largely on 
virtually all felonies in the 
period were punishable by 
see Note, Justification for 

rce in the Criminal Law, 13 
,66, 572-82 (1961). Many 
•isdictions, Connecticut in- 

of course expanded the 
lonies to include numerous 
ivolving force or violence, 
relate to property and to 

nth complex governmental 
i. g-, income tax fraud). As 
‘felonv” crimes has expand­
ay from the concept of vio- 
m'derlay its common law or- 
of the felony label to justi-

JONES v. M
Cite as 528 F.2<

fv especially severe police behavior has 
j^-come increasingly strained. As stated 
, Judge McCree in his concurring opin­
ion in Beech v. Melancon, 465 F.2d 425, 
426-27 (6th Cir. 1972), cert, denied, 409 
US. 1114, 93 S.Ct. 927, 34 L.Ed.2d 696 
(1973):

I would find it difficult to 
uphold as constitutional a statute that 
allowed police officers to shoot, after 
an unheeded warning to halt, a fleeing 
income tax evader, antitrust law vio­
lator, selective service delinquent, or 
other p>erson whose arrest might be 
sought for the commission of any one 
of a variety of other felonies of a tjqse 
not normally involving danger of 
death or serious bodily harm.
[8] The elementary requirements of a 

use of force rule under § 1983 must be 
that it neither permits “ brutal police 
conduct,” Rosenberg v. Martin, 478 F.2d 
520, 526 (2d Cir.), cert, denied, 414 U.S. 
872, 94 S.Ct. 102, 38 L.Ed.2d 90 (1973), 
nor allows such “ application of undue 
force” that the police conduct “ shocks 
the conscience.” Johnson v. Click, 481 
F.2d 1028, 1032, 1033 (2d Cir.), cert, de­
nied, 414 U.S. 1033, 94 S.Ct. 462, 38 
L.Ed.2d 32 (1973) (holding that a § 1983 
action lies by a prison inmate for an 
unprovoked attack by a guard). As 
Judge Friendly pointed out in Johnson, 
while the oft-quoted language from Ro- 
chin gains added content from other lan­
guage in the opinion, i t  is not exactly 
precise. We must analyze such factors 
as “ the need for the application of force,
12. See also Chief Justice Burger’s comment in 

Bivens v. Six Unknown Named Agents o f  Fed­
eral Bureau o f Narcotics, 403 t).S. 388, 419, 91 
S.Ct. 1999, 2016, 29 L.Ed.2d 619 (1971) (dis­
senting opinion);

Freeing either a tiger or a mouse in a 
schoolroom is an illegal act, but no rational 
person would suggest that these two acts 
should be punished in the same way. From 
time to time judges have occasion to pass on 
regulations governing police procedures. 1 
wonder what would be the judicial response 
to a police order authorizing "shoot to kill” 
with respect to every fugitive. It is easy to 
predict our collective wnath and outrage. 
We, in common with all rational minds, 
would say that the police response must re-

ARSHALL
:d 132 (1975)

the relationship between the need and 
the amount of force that was used, the 
extent of injury inflicted, and whether 
force was applied in a good faith effort 

or maliciously or sadistically 
. .” Johnson v. Click, supra, 481 

F.2d at 1033. Judge Friendly’s com­
ments were, to be sure, made in the 
course of determining whether a claim 
was stated rather than whether a privi­
lege existed. However, a privilege, sim­
ply stated, is a rule of law exempting 
one from liability for conduct which 
would otherwise subject him to it. Re­
statement (Second) of Torts § 10 (1965). 
This is no different from saying that 
privileged conduct is not tortious. See 
id. Comment a. Thus, whether we ap­
proach the case from the standpoint of 
Judge Friendly in Johnson, where the 
issue was whether the conduct was tor­
tious, or from the standpoint of privi­
lege, where the issue is whether the con­
duct is not tortious, the analytical fac­
tors must be the same.

[9] We find in this case that a num­
ber of legislatures, but few if any courts 
on their own initiative, have analyzed 
the factors just discussed and have mod­
erated the harshness of the old common 
law view. There is, in short, a discerni­
ble trend in this century away from al­
lowing the use of deadly force by a po­
lice officer in effecting a felon’s arrest. 
But this trend is not so momentous or 
compielling as to require us to recognize 
a § 1983 action to lie in the situation of 
this case. This is to say that we do not

late to the gravity and need; that a "shoot” 
order might conceivably be tolerable to pre­
vent the escape of a convicted killer but 
surely not for a car thief, a pickpocket or a 
shoplifter.

13. The acts must do more than "offend some 
fastidious squeamishness or private senti­
mentalism about combatting crime too ener­
getically” ; they must be such as “ to offend 
even hardened sensibilities” [Rochin v. Cali­
fornia. 342 U.S. 165, 172, 72 S.Ct. 205, 96 
L.Fd. 183 (1952)], or constitute force that is 
“ brutal” and “ offensive to human dignity.” 
342 U.S. at 174, 72 S.Ct. 205.

Johnson v. Click, 481 F.2d 1028, 1033 n. 6 (2d 
Cir.), cert, denied, 414 U.S. 1033, 94 S.Ct. 462, 
38 L.Ed.2d 32 (1973).



140 528 FEDERAL REPORTER, 2d SERIES

believe that our responsibility to g-ive ef­
fect to the important civil rights protect­
ed by § 1983 provides us with a suffi­
cient mandate to provide a remedy in 
this case by rejecting the rule of privi­
lege developed by the state to further its 
ow'n important objective of enforcing its 
penal law. The preferable rule would 
limit the privilege to the situation where 
the crime involved causes or threatens 
death or serious bodily harm, or where 
there is a substantial risk that the per­
son to be arrested will cause death or 
serious bodily harm if his apprehension is 
delayed. But we are not satisfied, given 
the history and current status of the law 
of privilege, the ready availability of 
handguns to the populace at large (in­
cluding nonviolent felons), and the needs 
of law enforcement in a society where 
violence is widespread, that we can or 
should impose that view through § 1983 
as a federal standard to which all states 
would be subject. We are aware, more­
over, that to do so in this case, where 
the Connecticut Supreme Court has fair­
ly recently (1964) taken the contrary 
view, a view’ w’hich has even more 
recently (1971) expressly been preserved 
in a legislative recodification of the state 
criminal law, would be to deny the offi­
cer the defense of good faith reliance 
upon the law of his state.**

The question of use of deadly force in 
' ** arises here in thepreventing escape

14. We would not incorporate the felony/mis­
demeanor distinction into this rule, for a felo­
ny is usually based merely on the length of 
sentence involved, and some misdemeanors in­
volve conduct more dangerous than many felo­
nies. See ALI, Model Penal Code § 3.07, Com­
ment 3, at 56 (Tent. Draft No. 8, 1958).

15. A defense which, however, might be less 
available to him as a result of the West Hart­
ford Police Department Training Bulletin, note 
4 supra. This possibility has not, however, 
been explored by appellant, and our record 
comes to us with a stipulation that Officer 
Marshall had acted in good faith See note 24 
infra.

16. A question which is distinct from the use of 
deadly force in effectuating arrest, where force 
may clearly be used to counter force. ALI, 
Model Penal Code § 3.07, Comment 3, at 56 & 
n. 3 (Tent. Draft No. 8, 1958).

narrow context w’here there is no belief 
in its necessity for the protection of the 
officer or of any innocent third persons. 
In this context, we find the history of 
the treatment afforded the officer s f>riv- 
ilege by the American Law Institute to 
be enlightening.'* The first Restatement 
of Torts § 131 (1934) extended that priv­
ilege only to arrests for treason or a 
felony which normally causes or threat­
ens death or serious bodily harm, or 
w’hich involves the breaking and entry of 
a dwelling place. Official Comment h to 
§ 131 of the Restatement stated that 
deadly force was not privileged for every 
common law felony,'* that crimes are in­
discriminately labeled as felonies or mis­
demeanors, and that it would “ be mon­
strous to make the privilege 
depend upon the word used by the legis­
lature in describing the offense or upon 
the penalty attached to its commission.” 
This conclusion was felt to be particular­
ly forceful in light of the fact that the 
force used imperils the suspect as w’ell as 
the guilty. Id. at 305. This rule of the 
first Restatement of Torts, which ap­
proximates the one advocated by appel­
lant, was, however, overturned by the 
ALI in 1948. Restatement of the Law, 
1948 Supplement, Torts § 131, at 628 et 
seq. (1949). The revised rule w'ould per­
mit the privilege where the arrest is for 
treason or any felony which has been 
committed, if the actor reasonably be­
lieves the offense was committed by the

17. WTiile ALI sanction of a rule even when 
coupled with American Bar Association and 
other distinguished endorsement may be help­
ful, see Pierson v. Ray, 386 U.S. 547, 87 S.Ct 
1213, 18 L.Ed,2d 288 (1967), it is no guarantee 
of constitutionality. See Griffin v. California. 
380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 
(1965); id. at 722 & nn. 6-8 (Stewart, J.. dis­
senting).

18. Blackstone's view was to the contrary. He
believed a homicide to be justifiable "[w]here 
an officer, or a private person, attempts to 
take a man charged wnth a felony and is resist­
ed, and in the endeavor kills him." Black- 
stone’s Commentaries, bk. 4, ch. XIV, at 827 
(Gavit ed. 1941). The only qualification placed 
on the common law rule by Blackstone was 
that “ there must exist an apparent necessiU 
on the officer’s side that the part\
could not be arrested” without the use oi 
deadly force. Id



[ES

where there is no belief 
or the protection of the 
■ innocent third j:)ersons. 
we find the history of 

forded the officer’s priv- 
erican Law Institute to 
' The first Restatement 
934) extended that priv- 
•rests for treason or a 
•mally causes or threat- 
jrious bodily harm, or 
e breaking and entry of 

Official Comment h to 
estatement stated that 
not privileged for every 
ny,'* that crimes are in- 
>eled as felonies or mis- 
-hat it would “ be mon- 
the privilege 
word used by the legis- 
ng the offense or upon 
hed to its commission.” 
as felt to be particular- 
lit o f the fact that the 
s the suspect as well as 
: 305. This rule of the 
t of Torts, which ap- 
le advocated by appel-
er, overturned by the 
statement of the Law, 
Torts § 131, at 628 e t

•evised rule would per- 
W’here the arrest is for 
elony which has been 

actor reasonably be- 
was committed by the

tion of a rule even when 
rican Bar Association and 
endorsement may be help- 
Ra.v, 386 U.S. 547, 87 S.Ct.
8 (1967), it is no guarantee 

See Griffin v. California. 
i.Ct. 1229, 14 L.Ed.2d 106 
!e nn. 6-8 (Stewart, J., dis-

V was to the contrary. He 
to be justifiable “ [w]here

ivate person, attempts to 
with a felony and is resist- 
leavor kills him." Black-
es. bk. 4, ch. XIV, at 827 
le only qualification placed
V rule by Blackstone was
cist an apparent necessity 
’ . that the party
ted” without the use of

JONES V. MARSHALL
Cite as 528 F.2(l 132 (1075)

141
other and that the arrest cannot other­
wise be effected.'* The notes of the re­
porter for the 1948 revision. Professor 
Eldredge, criticize the reliance by the 
earlier reporter. Professor Bohlen, on one 
of three dicta from early American case 
law. Professor Eldredge flatly states 
that Comment h of § 131 of the first 
Restatement (and its accompanying illus­
trations) has “ no authority” to support 
it. He cites five cases decided since 1926 
contrary to § 131,2" concludes that 
“ [n]o case has been found which has cit­
ed § 131 or w'hich is in accord with it.” 
Restatement of the Law, 1948 Supple­
ment, supra, at 633.2' While the report­
er to the 1948 revision allows that § 131 
of the first Restatement is a “desirable 
rule of law,” Restatement of the Law, 
1948 Supplement, supra, at 634, the revi­
sion is necessary in a “ Restatement of 
existing authorities” since “ [ejvery case 
which decides the question
agrees that the original English common 
law is still the law.” Id., but see note 21 
supra. It is in this context that the 
Model Penal Code was adopted by the 
American Law Institute in 1962. In this 
Code there are comments which refer to 
the common law distinction between fel­
ony and misdemeanor crimes for the 
purpose of determining the scope of the
19. If the arrest were made under a warrant for 

a felony' the use of deadly force was privileged 
so long as the person named in the warrant 
was being arrested and the officer reasonably 
believed the arrest could not otherwise be ef­
fected. Restatement of the Law, 1948 Supple­
ment, Torts § 131 (1949),

20. The most frequently cited of which is Stin­
nett V. Commonwealth o f Virginia 55 F 2d 644 
(4th Cir. 1932) (Parker. J.).

21. But see Commonwealth v. Duerr, 158 Pa. 
Super. 484, 492-93, 45 A.2d 235, 239 (1946), 
citing and relying on Restatement of Torts 
§ 131, apparently, however, in support of the 
proposition that the felony must actually have 
been committed. Three of the five cases’ relied 
upon in the reporter's notes to the 1948 revi­
sion, see Restatement of the Law, 1948 Sup­
plement, Torts § 131, at 632-33 (1949), upheld 
the claim of privilege on the officer’s part in a 
criminal case brought against him, rather than 
in a civil suit for damages. Seemingly in a 
criminal case the officer’s reliance on a com­
mon law privilege goes to his willfulness or 
mens rea, a matter not so much in issue in a

privilege to use deadly force as “ mani­
festly inadequate for modern law.” 
A LI, Model Penal Code § 3.07, at 56 
(Tent. Draft No. 8, 1958). The authors 
of the Model Penal Code point out the 
anomaly resulting from juxtaposition of 
the general rule that deadly force can be 
used to prevent the commission of a felo­
ny only if the felony involves substantial 
risk to life and limb, e. g.. Common­
wealth V. Beverly, 237 Ky. 35, 39, 34 
S.W.2d 941, 943 (1931), with the rule 
that such force can be used to obtain an 
arrest for any fe lo n y .2 2  In contrast, the 
Restatement (Second) of Torts § 131 
(1965) has simply carried forward the 
1948 revision of the original Restatement 
of the Law of Torts and quotes the com­
ment in the 1948 Supplement without 
reference to the Model Penal Code.

The American Law Institute’s almost 
50 years of consideration of the problem 
demonstrates that the area in which we 
are treading is one still characterized by 
shifting sands and obscured pathways. 
The leading text, 1 Harper & James, su­
pra § 3.18 (1956), cannot suffice on its 
own to lead us out of the wilderness. 
The authors seem to equate the rule for 
effectuating an arrest with that of re-

civil liability context. Neither the commenta­
tors nor the cases seem to make any distinc­
tion as to the use of the privilege although we 
can readily perceive extending greater protec­
tion to the officer charged with a crime than 
one sued for damages.

22. The Model Penal Code reporter also points 
to the more refined analysis suggested by Pro­
fessor Henry Hart which would require post­
ponement of the arrest, rather than use of 
deadly force, in all but a few named instances. 
ALL Model Penal Code § 3.07, at 60 (Tent 
Draft No. 8, 1958). See also the contrary re­
marks of Professor Waite of the Advisory- 
Committee, who would require of the person 
being arrested not only “ abstention from ac­
tive resistance” but “ the even easier absten­
tion from flight.”  Id. at 61. The reporter and 
a “ large majority of the Advisory Committee 
and the Council” deemed "the balance of ad­
vantage on the side of limiting the use of dead­
ly force for the sole purpose of effecting an 
arrest”  Id. at 63. They conceded, however, 
that ” [n]o perfect principle of limitation can be 
formulated”  Id.



142 528 FEDERAL REPORTER, 2d SERIES

taining custody once prop>erly acquired, 
id. at 284; see also Restatement (Second) 
of Torts § 134 (1965), and state that 

[i]n the absence of a sf>ecific statute 
the more desirable rule is 

that only such felonies as threaten 
death or serious bodily harm will justi­
fy the use of deadly force to effect an 
arrest therefor, and such force may be 
used only when it reasonably appears 
that the arrest can be made in no oth­
er way.

1 Harper & James, supra, at 284.
[10,11] While we need not, either to 

extend or to limit liability, “ tie section 
1983 to the technicalities of state law,” 
Street v. Surdyka, 492 F.2d 368, 370 (4th 
Cir. 1974) (extending privilege of offi­
cer), we recognize that actions under 
§ 1983 are to some extent “ analogous to 
tort actions,” Dowsey v. Wilkins, 467 
F.2d 1022, 1025 (5th Cir. 1972). Here we 
are dealing with competing interests of 
society of the very highest rank—inter­
ests in protecting human life against un­
warranted invasion, and in promoting 
peaceable surrender to the exertion of 
law enforcement authority. The balance 
that has been struck to date is very like­
ly not the best one that can be. In an 
area where any balance is imperfect, 
however, there must be some room un­
der § 1983 for different views to prevail. 
The Connecticut rule carries with it the 
defects explicated above; it makes no 
distinction between felonies and there­
fore could be argued to involve an ele­
ment of irrationality. It also creates an 
anomalous asymmetry to the privilege 
relating to the use of force for prevent­
ing the commission of felonies. Further­
more, it is contrary to the recommenda­
tions of the new proposed federal crimi­
nal code, see U. S. National Commission 
on Reform of Federal Criminal Laws, 
Study Draft of a New Federal Criminal 
Code § 607(2Xd) (1970),“  and the statute 
law of one of the other two states in this

23. This provision was adopted for the pro­
posed federal criminal code following the rec­
ommendations of the U. S. National Commis­
sion on Reform of Federal Criminal Laws, 1

circuit. New York, N.Y. Penal Law 
§ 35.30(lXa) (McKinney 1975), although 
apparently not of the other, 13 Vt.Stat. 
Ann. § 2305 (1974). This would seem 
p>eculiarly to be one of those areas where 
some room must be left to the individual 
states to place a higher value on the 
interest in this case of peace, order, and 
vigorous law enforcement, than on the 
rights of individuals reasonably suspect­
ed to have engaged in the commission of 
a serious crime. We do not believe that 
this approach to interpreting § 1983 
hearkens back to the early Supreme 
Court interpretation of the due process 
clause which condoned all state proce­
dural rules which were in conformity 
with “ settled usage,” e. g.. Twining v. 
New Jersey, 211 U.S, 78, 101, 29 S.Ct. 14, 
53 L.Ed. 97 (1908); Hurtado v. Califor­
nia, 110 U.S. 516, 528, 4 S.Ct. I l l ,  28 
L.Ed. 232 (1884). This approach has 
been overruled in Griffin v. California, 
380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 
106 (1965), and we by no means would 
employ it here. W'’hile the Fourteenth 
Amendment may require us to make an 
indep>endent assessment of the fairness 
of the state rule, however, we are today 
interpreting § 1983, and within that stat­
ute the states must be gjven some lee­
way in the administration of their sys­
tems of justice, at least insofar as deter­
mining the scop>e of such an unsettled 
rule as an arresting officer’s privilege 
for the use of deadly force. Further, in 
the light of the shifting history of the 
privilege, we cannot conclude that the 
Connecticut rule is fundamentally unfair.

[12] All of w'hich would not say that, 
under the original stipulation of facts, 
the complaint should have been dis­
missed, as it was on cross motions for 
summary judgment. As the facts were 
originally stipulated there were still four 
questions of fact to be determined under 
the Connecticut’s common law rule: (1) 
whether Marshall actually believed and

Working Papers 268-69 (1970), and The Presi­
dent's Commission on Law Enforcement and 
Administration of Justice, Task Force Report: 
The Police 189 (1967).

I



Penal Law 
975), although 
er, 13 Vl.Stat. 
s would seem 
se areas where 
the individual 
value on the 

ace, order, and 
than on the 

)nably suspect- 
commission of 

lot believe that 
reting § 1983 
jarly Supreme 
he due process 
,11 state proce- 
in conformity 

g., Twining v. 
101, 29 S.Ct. 14, 
tado V. Califor- 
I S.Ct. I l l ,  28 

approach has 
n V. California, 
229, 14 L.Ed.2d 
o means would 
the Fourteenth 
us to make an 

of the fairness 
r, we are today 
vithin that stat- 
given some lee- 
m of their sys- 
nsofar as deter- 
:h an unsettled 
ficer’s privilege 
•ce. Further, in 
' history of the 
ticlude that the 
mentally unfair.

I not say that, 
,tion of facts, 
,ve been dis- 
,s motions for 
he facts were 
were still four 
ermined under 
law rule; (1) 

' believed and

J70), and The Presi- 
K Enforcement and 
Task Force Report:

(2) whether Marshall reasonably believed 
that Jones was a felony suspect; and, 
even more importantly, (3) whether Mar­
shall actually believed and (4) also rea­
sonably believed that it was necessary- 
under the circumstances to use deadly 
force to make the arrest. The absence 
of any one of these four elements would 
have rendered the Connecticut privilege 
unavailable, Martyn v. Donlin, supra. 
Without our having finally to determine 
the issue here, any such absence might 
also have given rise to an action for 
damages under § 1983.̂  ̂ But the origi­
nal stipulation was amended not once 
but twice to take these issues out of the 

- Thus no factual issues remain.case.*
We accordingly affirm the judgment be­
low. So holding we do not need to pass 
on the troublesome question whether fe­
lonious theft of an automobile resulting 
in a high-sp>eed chase in a rural area 
creates or under a given set of circum­
stances could create a “ substantial risk 
that the person to be arrested will cause 
death or serious bodily harm if his ap­
prehension is delayed.” See ALI, Model 
Penal Code § 3.07(2)(iv)(2) (proposed of­
ficial draft 1962). Even were we to hold 
that § 1983 incorpKjrated the Model Pe­
nal Code rule it is far from certain

UNITED STATES of America, 
Plaintiff-Appellee,

V .

Richard TURNER,
Defendant-Appellant.*

Nos. 73-2740, 73-2937, 73-2959, 73-3082, 
73-3083, 73-3156, 73-3159, 73-3168, 73- 
3575, 74-1057, 74-1085, 74-1151, 74- 
1322, 74-1465.

United States Court of Appeals, 
Ninth Circuit.

July 24, 1975.
Certiorari Denied Dec. 1, 1975. 

See 96 S.Ct. 426.
As amended Dec. 31, 1975.

Defendants were convicted in the 
United States District Court for the Cen-

24. These qualifications serve to take quite a 
little of the sting out of the harsh common-law 
rule. As Comment f to Restatement of the 
Law, 1948 Supplement. Torts § 131. at 630 
(1949), relied on by the Connecticut Supreme 
Court in Martyn v. Donlin. 151 Conn. 402. 412, 
198 A.2d 700, 706 (1964), says:

The interest of society in the life of its 
members, even though they be felons or rea­
sonably suspected of felony, is so great that 
the use of force involving serious danger 
thereto, is privileged only as a last resort 
when it reasonably appears to the actor that 
there is no other alternative except abandon­
ing his attempts to make the arrest

25. In order to remove these factual issues 
from the case, appellant’s counsel joined in the 
two following amendments to the stipulated 
facts:

Amendment to Stipulations, August 15, 1974
1. Marshall actually believed that it was 

necessary under the circumstances to use 
deadly force to make the arrest.
Further Amendments to Stipulations, August 
26, 1974

1. It was reasonable for Marshall to be­
lieve, that in order to make the arrest, it was 
necessary to use deadly force.

2. Marshall believed that the Defendant 
[sic] was a felony suspect.

3. It was reasonable for Marshall to be­
lieve that the Defendant [sic] was a felony 
suspect.

We have no trouble in concluding that refer­
ences in these stipulations to “ the Defendant” 
were intended to refer to “ the Decedent.”

If the reason for the plaintiffs entering this 
stipulation was to present the Connecticut law- 
in its worst possible factual light, the ploy has 
backfired since plaintiff has stipulated out of 
the case the very elements which would tend 
on the facts first stipulated to give rise to a 
federal claim under the facts here involved.

• Consolidated with:
U. S. V. Grimes, 73-2937; Letiis (Howard),

73- 2959; Lewis (John Henry), 73-3082; John­
son (Henry Bernard), 73-3083; Hackett, 73- 
3156; Nice, 73-3159; Woodrow, 73-3168; 
Ethridge, 73-3575; Johnson (Sharon), 74- 
1057; Johnson (Ollie Lee), 74-1085; Roberts,
74- 1151; Gibson, 74-1322; Sneed, 74-1465.