Memo and attached case files from Bass to Days RE: Jones v. Marshall

    W e ^ o  ( r o n . :

Stanley A. Bass

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UNITED STATES DISTRICT COURT 
DISTRICT OF CONNECTICUT

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FLOZELL JONES, Individually and as 
Administrator of the Estate of 
Dennnis Jones, Decedent

Plaintiff

va,
KEITH MARSHALL

Defendants

CIVIL ACTION NO. 13, 811.

PLAINTIFF'S BRIEF IN’ SUPTOKT 
OF HIS MOTION FOR SU>DL\RV JUDGMENT

STATEMENT OF THE CASE

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This is an action for damages arising from the wrongLul death 

of Dennis Jones, brought by his father Flozell Jones, as Administrator of 

the estate. Tlvis Court has jurisdiction pursuant to Title A2, U, S. C. §1983 

and Title 18 U. S. C. 51343.

The action originally named the defendant Keith Marsliail, a police 

officer, the Town of West Hartford, West Hartford’s Police Chief William 

Rush, and West Hartford's Town Manager Richard Custer. The actions against 

the latter parties were dismissed by Judge Blumenfeld on June 29, 1971 and 

all causes of action except the First Cause of Action against Ofiicer 

Keith Marshall were subsequently withdrawn. Cf. Moor _ v _ i t l a . 

411 U. S. 693 (1973); City of Kenosha v. Bruno, 412 U. S. 507 (1973).

STATEMENT OF FACTS

A statement of facts has been stipulated to by the parties. The 

following narrat'*ve is taken from that stipulation.

On Augtist 29, 1969 at approximately 12 o'clock noon, Officer 

Keith Marshall of the West Hartford Police Department, while on patrol in a 

police cruiser and in the course of the performance of his duties, observed a

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Cadillac automobile occupied by three Black males, later identified as Russell 

^y®ond Arter and the decedent.Dennis Jones, ail of Hartford 

Connecticut. The automobile was proceeding in a westerly direction on 

Simsbury Road in West Hartford, in the vicinity of the Hartford Coi f Club.

. c-;.-- Officer Marshall through radio contact with the West Hartford

Police headquarters received Information that the Cadillac was a stolen 

vehicle and he therefore began to follow it.

He foUowed the car through the Hartford Coif Club cmU o Norwood 

Road until it readied a stop atign located at Norwood Road and Albany .Avenue. 

At chat stop signj:he Cadillac stopped for traffic and then turned Knc onto

Albany Avenue, heading for Hartford. Officer Marshall continued to follow 
the car.

After it crossed the Hartford Town line, the car turned left 

at Mark Twain Drive, and headed in a northerly direction. The car then turned 

right onto Dillon Road. Dillon Road is a semicircular road and returns with­

out Intersecting any other street to Mark Twain Drive. The automobile circled

back onto Mark Twain Drive again turning right and it was therefore once acain 

lieadlng north on Mark Twain Drive.

While following the car. Officer Marshall did not activate lus 

•siren or warning signal or make any attempt to cause the Cadillac to come to a 

stop. Prior to the time the Cadillac re-entered Mark Twain Drive, it had not 

been driven at speeds which exceeded 35 to 40 miles per hour nor had any traffic 

regulations been violated. No high speed cliase had yet occurred. Prior to 

the time that the automobile re-entered Mark Twain Drive, Officer Marshall had 

learned by car radio that the Hartford Police Department had dispatched 

assistance which w.as on its way.

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When the Cadillac re-entered Mark Twain Drive from Dillon Road 

it accelerated to a speed of approximately 80 miles an hour. It reached 

the end of Mark Twain Drive and continued straight ahead entering onto the Mark 

Twain Extension at the end of which it skidded to a halt. Officer Mar.shall 

continued to follow the' car and the tvro automobiles were ongage.I in a iiich 

speed chase.

Upon arriving at the point at which the Cadillac had stooped, 

Qtficer Marshall skidded to a halt and aliglited from his cruiser with Ills 

weapon drawn. The braking of both cars had created a large cloud of dust.

• - Ihe occupants of the Cadillac were not immediately visible.

Officer Marshall therefore climbed to the top of an adjacent eiiibankr.ieut t,>

3 better view. Irom that point, he observed two males running across an 

open field. He called at them to halt. They halted momcut.arilv turned to face 

him and then they turned again and began to run away from wiicre Officer 

Marshall was standing. They were running across a field toward a noatby 

wooded area. Without firing a warning shot or attempting any further means 

of apprenhension. Officer Marshall fired his weapon at one of the two nuiles 

and the single shot he fired killed the decedent Dennis Jones. Dennis Jones 

was 16 years old.

Officer Marshall had aimed at the decedent's leg. The bullet, 

however., had struck the decedent in the left buttock and penetrated through 

the left ilium and lacerated the left common iliac artery, peritoneum, 

raassentery and Jejiinum, ultimately causing death.

! Officer Marshall had been 125 feet from Dennis Jones when he fired

his weapon. The distance between them can be characterized as a field covered 

with bushes and underbrush.

Neither the decedent nor any of the other individuals in the 

Cadillac had been armed or had specifically threatened physical injury to 

Officer Marshall or to any other individual. The. sliort automobile high speed

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' pursuit had not endangered any individual other than the occupants of the two 

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, __ Russell Seals,Jr. and Elaymond Artec, both wLnors of .ipproxinuto 1 y

16 years of age, were arrested by Hartford Officers on tho next Jay. Neither 

I of them was charged with a felony. The charges against one wore ultimately 

dropped. The other pled guilty to a misdemeanor charge receiving a suspended 

sentence.

X, EXISTING STANDARDS GOVERNING THE USE OF DEADLY FORCE HY rOLTC.E orFlCF.KS 
WHEN ATTEMPTING TO CAPTURE A FLEEING FELON ARE INAPPLICABLE AS THE TEST 
WHERE VIOLATIONS OF THE DUE PROCESS CLAUSE ARE CLAIMED

Actions brought In federal courts pursuant to the Civil Rights 

Act, Title 42 U. S, C, 51983, must assert a violation of constitutional pro­

visions or of federal statutes. The use of deadly force by police officers 

in the process of attempting to effectuate the arrest of a fleeing felony 

suspect is cognizable by a federal court because the wrongful use of such 

force violates the due process clause of the 14th Amendment.

Averett. 424 F. 2d 1228, (4th Cir., 1970); Love v. Davis, 353 F. Supp. 533 

(E.D. La.., 1973); Jackson v. Martin, 261 F. Supp. 902 (N.D. Miss. 1966); 

Roberts v. Trapnell. 213 F. Supp. 49 (C.D. Pa., 1962). The constitutional 

Halm is usiiany cast in terms of whether or not the officer's use of deadly 

force amounted to an Impermissible interference with those rights the suspect 

would have had in the criminal process. Screws v. United _States, 325 U. S. 91 

(1945). But see Jenkins v. Averett, supra which rested the cunst1tutional 

claim upon the invasion of the victim's person.

The concern in this case, however, is not with the theory oi the 

constitutional claim, but rather with defining the standard against whleh 

the actions of the police officer should be tested. An examination of the 

reported federal decisions indicates that no uniform standard has ever been 

developed. Instead, in each case involving the use of deadly force by the 

police, the federal courts have adopted the local state law standard. The

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tWQ most fre<iuently cited cases in the area of Feople of the State of

Colorado for the Use of Little v. Hutchinsop, 9 F. 2d 275 (8th Cir., 1925) and

Stinnett v. Commonwealth" of Virginia, 55 F, 2d 644 (4th Cir., 1942). In

Hutchinson the issue was raised in a diversity action, while in Stinnett

the issue was raised in a criminal prosecution of a federal liquor agent

which had been removed to federal court. In both cases he court adopted

the States' standards. The two standards were similar. In Colarndo
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an officer could use as much force as is necessary under the circumstances.

In Virginia, he could use such force as reasonably appeared necessary 

to effectuate the arrest. However, in Love v. Davis, 357 F. Supp. 3S7 

(E.D. La., 1973), the federal court adopted a very different standard. It 

adopted Louisiana's standard which had its roots in civil law and which 

limited the use of deadly force to situations involving danger to life.

Similarly, in every other reported federal case dealing with the 

problem, the courts have adopted the State standard. Roberts v. Trapncll,

213 F. Supp. 49 (E.D. Pa., 1962), Pennsylvania law; Jackson v. Martin, 261 

F. Supp 902 (N.D. Miss., 1966), Mississippi law; Clark v. Zicdonis.

368 F. Supp. 544 (E.D. Wis., 1973), Wisconsin law; and Beard v. S.teplinns.,

372 F. 2d 685 (5th Cir. 1967), Alabama law; see Note Appropriateness of__

Deadly Force, 15 Howard Law Journal 306 (1969).

This state by state approach has the deficiency of resting the 

federal constitutional claim squarely upon state common law or statutory riglits. 

It is the Plaintiff's position that this inevitably results in the federal 

e«»urts using standards in civil rights cases that arc inconsistent. Moreover, 

almost every state standard in>the area is Illogical, antequated and 

unconstitutional. It is the Plaintiff's position that the Due Process Clause 

of the 14th Amendment requires the adoption of a standard under which:
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Deadly force may be used to effect the
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arrest of a fleeing felony suspect only when

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(1) the police officer believes that 

such force is immediately necessary to 

effect a lawful arrest, and (2) the 

police officer believes that the force 

employed creates no substantial risk of 

Injury to innocent persons and (3) that 

the crime for which the arrest is to be 

made involves conduct including the*1180 or 

threatened use of deadly force or that there 

la a substantial risk that the person to be 

arrested will cause death or serious bodily 

harm if his apprehension is delayed. See

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The Model Penal Code, Proposed Officla] Draft
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1962, Section 3.07 , "Use of Force In Law

Enforcement" for a slightly differently worded 

version of this proposed rule.

At the outset it must be recognized that tliere is no single 

clear statement of the common law rule. Although the rule has been generally 

identified as permitting the officer to use whatever force appeared reasonably 

necessary to affect the arrest of a fleeing felony suspect. Note, Tl'S’.. 

AppUcation of Deadly Force to Effectuate An Arrest, 5 Washburn law .lournal, 

262 (1966) It has also been described as permitting the use of deadly force
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only as a last resort. Pearson, The Right to Kill in fkiking Arrests, 28 

Michigan Law Review, 957 (1930); Rummel, The Right of Law Enforcement 

Officers to Use Deadly Force to Effect an Arrest, 14 New York Law Forum, 749, 

751 (1968); Cook v. Petrie, 414 S.W. 2nd 954 (Ark. 1967); Hĵ bb̂ yrd v.__8tate.

30 SW 2d 901 (Miss. 1947). One Jurisdiction even requires Ln order to justify

In Clark v. Zle^ojils, 368 F. Supp 544, (E.D. Wise. 1973) This slaiulari.1 has 
Incidentally been adopted by a Wisconsin federal court applying state law.

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the shooting that there have been in fact a felony committed and that Che 

deceased have been in fact the felon. f>n the other hand, another jnrisdiction
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‘ requires simply that the officer have had a reasonable belief that a felony 

was committed and that the use of deadly force was reasonably required.

Compare Petrie v. Cartright, 70 SW 297 (Ky. 1902) and Johnson 

Administrator, 63 SW 759 (Ky. 1901) with Martin v. Donlin, 151 Conn. 402 

(1964). See also. Note, Killing a Suspected Felon Fleeing t(̂  K.scape .\rrost,

38 Kentucky Law Journal 609, 618 (1950); Note, Re-examination of the Riglit 

of an Officer to Kill a Fleeing Felony Suspect, 40 Kentukey Law Journal 

192 (1952).

This confusion has been compounded rather than alleviated by

the development of statutory rules. A survey of state statutes done in

1970 by the William and Mary Law Review Indicated that 16 states had 

codified their interpretations of the common law rule and that at least four 

different variations of the rule appeared within that group. Note, 

Justifiable Use of Deadly Force by the Police; A Statutory Survey, 12 

William and Mary Law Review 67 (1970). These variations turn on sucli points 

as whether the statute requires that a felony have been committod In fact, on 

whether the officer simply has to have reasonable grounds to believe that 

a felony has been committed, or on whether the suspect might have been 

charged with a felony. Ibid., at 72-76.

The conversion in 1971 of the Connecticut common law approach 

contained in Martin v. Donlin, supra, into a statutory form added yet a fifth 

statutory variation. Title 53a C. G. S. §22.

In addition to the various "common law" codifications there 

are at least four rules which are at such variance with common law that 

they should be separately mentioned. Alaska and Oregon apparently allow 

deadly force to be used to stop anyone suspected of any crime who is

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attempting to escape. 12 William and Mary Law Review at 76. Texas, on the 

other hand, permits deadly force to be used only in self-defense. Ibid, at 77 

*■ Another group of states allows the use of deadly force only if a forcible 

felony involving danger to'one*s life or great bodily harm is involved. Ibid- 

' at 78-81. And finally there is growing adoption of the rule that appears in 

the Model Penal Code, paraphrased above. In the last two years alone, five 

states have enacted use of force statutes similar to the Model Penal Code or 

similar to the forcible felony rule previously adopted In New York and 

Illinois, which is comparable in many respects to the rule contained in the 

Model Penal Code. Nebraska Revised Statutes §28-839 (1972); New Hampshire 

Revised Statutes §627:5 (1971); Oregon Revised Statutes §161.239 (1973);

18 Pennsylvania Statutes §508 (1972); Utah Penal Code, §76-2-404 (1973).

See also, 1973 International Association of Chiefs of Police, Law Enforcement

Legislative Research Digest, Statutory Reference Service, Co m p i l a t i o n ^ __

(January 2, 1974),

It is not solely the inconsistencie.s contained in the various state- 

tests which make the federal court deference to state standards appear to be 

ludicrous. It is the fact that the common law rule in all of its variations 

* is Illogical, antequated and barbaric. To understand how a common law rule 

could have evolved that allowed for the killing of a fleeing felony suspect, 

n person needs to briefly review the history of feudal felony law.

j By the year 1201, a felony was identified as a crime against tlie 

feudal obligation (loyalty to one's lord) for which the felon's land could 

be forfeited and for which the felon himself would lose his life. Similarly, 

a man accused of being a felon who fled before his capture was automatically 

"outlawed.," Pollack and Maitland, History of English Law, 2nd Ed. Vol 2. 

(Cambridge University Press, 1968) p. 466; 4 M a c kstone's Commentaries. 94-98.

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The concept of outlaw ry was of ancient origin. It was more

than a label for someone who could be sought with force, it wajx in medieval

'timea a form of punishment. ,

2.' _ {]e vjiQ breaks the law has gone to war
with the community; the community got'i? to 

"  - war with him. It is tlie right and dutv or
every man to pursue him, to ravage his land,

' - to burn his house, to hunt him down like a
wild beast and slay him; for a wild beast he 

^ ~ la; not merely is he a"friendless nuan" he
la a wolf. 2 Pollack and Maitland, p. A49

The concept of outlawry carried with it the attitude that one 

who was considered an outlaw could and should be eliminated from society. 

Similarly, the felon's procedural rights upon capture helped to doijegraio 

any humane feelings concerning a suspect^s right to life. The life of the 

suspected felon was of very little value. Not only were all felonies by
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some point in the Twelfth Century punishable by death, but in addition 

the suspected felon would probably lose his life whether he was innocent 

or guilty. This was true because procedurally the felon was entitled to 

offer his proof by trial by ordeal.

In the ordeal of cold water, a special favorite in England where 

there were so many streams and ponds, the defendant was bound hand and 

foolt* and thrown into the water. If he sank he was innocent and if he 

floated he was guilty. The premise underlying the ordeal by cold water was 

that water, being a holy element, would not receive a guilty man. The 

defend.ant’s choice then was death by drowning, if innocent and death hy 

hanging^if guilty. Norman S. Cantor, The English: A Hlstoryof Politics

and Society to 1760.(Simon and Schuster, 1967) p. 36, 37.

In analyzing the development of the common law rule that allows 

for outlawry or, in other words for the murdering of suspects, it is 

Important to note that the rule evolved prior to the elimination of trial 

by ordeal. Trial by ordeal was effectively terminated in 1216 hy Lite 4tli

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Lateran Council, That Council forbade clerical iJarticipation in the ordeal. 

Without church support the practice fell into desuetude. Cantor, .sû ira p.

..;237 and Strayer and Munro, The Middle Ages, 395-1500. (4th Ed. Appleton- 

Century-Crofts, Inc., 1959) p. 310.

With this as its starting point, it is not surprisirp that the 

common law could have wholeheartedly endorsed the use of deadiv force to 

capture a fleeing felony suspect. Obviously, if felonies were punishable 

by death and if fleeing felons were outlaws, then '*any necessary guilty 

verdict could, in effect, be rendered after the execution of sentence." 

McDonald, Use of Force by Police to Effect lawful Arrest, 9 Criminal Law 

Quarterly, 435, 437 (1967).

It has been argued that the abondonment of the penalty of forfeiture 

and the abandonment of the concept of outlawry, not to mention the growth 

of logic, has substantially undermined the justification for the common law 

rule. 15 Virginia Law Review, 582, 584; Note, Officer's Right to Use 

Deadly Force to Arrest Fleeing Felon. 24 Iowa Law Review 159 (1938)

The annoying persistence of this outmoded common law rule 

in modern legal thought therefore has in all probability come about as a 

conscious effort to ignore its inherent inadequacies. Modern restatements of 

rule that- have attempted to justify its continuance have done, so on the 

basis that society’s interest in being free of criminal activities outweights 

the suspect's interest in living. Therefore, these modern restatements 

arj'.iiu that an officer can shoot to kill If it api)ears that sneli fi>ree is 

reasonably necessary to capture the suspect. Perkins, The Law of Arrest.

25 Iowa Law Review 201 (1940). This unfortunate attitude is no more logical

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than the old comnon law justification. In rejecting the concept of 

’ outlawry and In not relying upon the flight of the suspect to support the 

■ use-of force, the new justification contains, no legal rationale. ,\ny 

reliance on the use of force as an instrument of detetence is similarly 

Illogical since studies have shown that the threat of force has no doteront 

effect on the flight of suspects. Tslmbinos. The_JjiSt.lXedJJse,j:iLJl^

Force, 4 Criminal Law Bulletin 3, (1968)
The lack of any meaningful rationale for the continued application

of the common law rule warrnats its rejection as the text to be applied 
in any constitutional determination. The rule, which has its historical 

antecedents in the I2th Century, A. D. . should finally ho cast aside, 

particularly in light of the momentous decision of the United States Supreme 

Court in Furman v. Georgia, 408 U. S. 238 ( 1972)

II. THE DECISION INFUKMAN V. GEORGIA ELIMINATES ANY POLICY SUPPORT FOR 
THE COMMON lAW RULE.

The common law sanctioned the death of a felony suspeit because 

the threat he posed to society was considered to be greater th.in the value of 

his life. The common law rule at least had an honesty about it. It clearlv 

labeled the felony suspect as someone would could be killed -- he was an 

"outlaw". The modern approach is substantially the same but, in sulfiring 

from the inability to label the suspect an outlaw, it is less honest.

Moreover, wliatever legitimacy the common law rule or its modern 

justifUtions may have had at the time of their development has been 

undermined by the decision of the United States Supreme Court in ^.rman,v. 

Georgia, 408 U. S. 238 (1972)
• The balance against human life that exists in the common 

law rule is reversed in Furmn .Georgia. The emphasis is now placed on

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human dignity and the sanctity of human life, Furman, ^08 U. S. at 270.

Furman clearly casts aside the classical concept of outlawry or the modern 

view that a fleeing suspect's life could be forfeited simply because he.is 

fleeing. An examination of the decision in Furman clearly shows the need to 

adopt or to recognize a constitutional standard in which the suspect's cap­

ture is not Ipsofacto worth more than his life. Each of the three cases 

comprising the Furman decision Involve the discretionary imposition of a death 

penalty on a convicted felon following a Jury trial. The Supreme Court held 

that the penalty violated the cruel and unusual Clause of the 8th 

Amendment and the Due Process Clause of the 14th Amendment to the 

Constitution of the United States, 408 U. S. at 239. Each member of the 

Court wrote his own opinion; five in support and four against the .judgment.
I

Although this presents difficulty in attempting to interpret the 

Court's decision, its rationale is not impossible to discern. Justice 

Brennan's opinion presents a framework for analyzing the approach taken 

by the Court as a whole. It not only stands on its own but it substantially 

encompasses the position of the other four majoirty Justices. The issue, 

as framed by Justice Brennan, was whether death could be imposed as a ^

punishment or whether to do so would be cruel and unusual. 408 U. S. at 257 

Finding no simple definition of the clause. Justice Brennan embarked on a 

historical examination to determine what criteria, if any, had been 

developed in order to test the validity of punishments. 408 U. S. at 

258—282. This led him to develop the following four point test;

See Footnote 4, page ^3 infra.

3
Unless otherwise indicated all citations to the Furman decision are to 
the opinion of Justice Brennan.

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The test, then, will ordinarily be a 
cumulative one: if a punishment is
unusually severe, if there is a strong 
probability that it ig inflicted arbitrarily, 
if it is substantially rejected by contemporary 
society, and if there is no reason to believe 
that it serves any penal purpose more eifeerivel> 
than some less severe punishment, then the 
continued infliction of that punishment violates 
 ̂the command of the Clause that the States may not 
inflict inhumane and uncivilized punishments  ̂
upon those convicted of crimes. 408 U. S. at _8_

An examination of the development by the Court of this test and of 

Its application by Justice Brennan highlights the emphasis placed on thevalue 

of human life. The Court's decision elevates its concern for human dlgnltv 

po a position of such significance that any attempt to dovmgrade it should 

run afoul of constitutional protection. Each of the prongs rests firmly on 

Q concern Cor huinan dignity*
(1) Severity. The prior decisions of the Court have indlcntod

that an act is not allowed as a punishment if its use would bo "so severe to 

be degrading to the dignity of human beings.” 408 U. S. 271 The focus is

not on pain inflicted but on those aspects that

[tlreat members of the human race as not 
human, as subjects to be toyed with and 
discarded. They are thus inconsistent with 
the fundamental premise of the Clause that 
even the vilest criminal remains a human 
being possessed of common human dignity.
408 U. S. at 273

(?) arbitrary Imposition. The focal concern in assessing the arbltrurlnc 

of imioaiug a penalty la also on its infringement of burn,.., dignity.

The state docs not respect hnm.an dignlt> 
when wUI.out rca.son it Inflicts upon .some 
people the severe punishment It does not 
inflict on others. 408 U . S. at 274.

‘justice Douglas' opinion focuses prl^rily on 'ha arbitrary and discretionary
nature of the imposition of the death penalty. 408 U. S- 240 • ^
Stewart's rests on both the issue of less drastic means, 408 U. S 309 and 

. c / nfl T! 809-310 Justice White s also rests
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arhitrarlly imposed. 408 U. S. 364-369.

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It is interesting to note, as Justice Brennan did, that there is a

close interrelationship between the severity*of the penalty and the

‘ arbitrariness of its imposition. Rarity of use is indicative of severity.

408'IT. S. at 276. In light of the decreasing number of crimes fer vhi,-:i

‘ death was a possible punishment and the rare number of ca.ses in which death

vas imposed, let alone carried out, it was clear that the death penalty was

not being fairly applied. 408 U. S. at 291-293. "Indeed it smacks of little
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mope than a lottery system." 408 U. S, at 293.

(3) Societal Disapproval. Recognizing that societal disapproval is a

strorig indication that a punishment does not comport with human dignity.

Justice Brennan turned to various objective indicators to evaluate societal

opinion. 408 U, S. at 295. He found the continuing, voluminous, and emotional

public debate that had occurred indicative of tlie significant moral concern

over the use of death as a punishment. 408 U. S. at 306.

In fact, he found the progressive history of the use of a death

penalty to be one evidencing its abandonment. He said

[R]ejection could hardly be more complete 
without becoming absolute. 408 U. S. at 
300

■ ( 4 )  Less Drastic Means. With regard to this portion of his four part 

test, Justice Brennan said that

The final principle inherent in rJic Clause 
Is that a severe punishment must not he 
excessive. A puni.shment is excessive iimler 
this principle if it is unnecessary: the 
infliction of a severe punishment by the state 
cannot comport with human dignity when it is 

' nothing more than the pointless infliction of 
- - suffering. 408 U. S. at 293.

Ju.stlce Stewart considered the pattern of imposition of death sentences to he 
so arbitrary that he characterized it as being "cruel and unusual in the same 
way .as being struck by lightening is cruel and unusual." 403 U. S. at 309

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Against this statement of principle any purpose that the death 

penalty might serve other than the complete obliteration of the person could 

obviously be served by~less drastic means. The death penalty does not 

defer" any better than confinement. It does not rehabilitate. It doe> nc't 

illustrate societal abhorrence of the offense involved any better than any 

other means, 408 U. S. at 305.

Thus death is an excessive penalty to impose and to do so ii;nores
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humanity.

As the history of the punishment of death 
in this country shows, our society wishes 
to prevent crimes; it has no desire to kill 
criminals simply to get even with them.
408 U. S. at 305

of the four points of his test was that the death penalty was not consistent 

with human life and dignity and was therefore not permissible.

The Court's opinion taken as a whole makes clear that the Court, 

when confronting the legitimacy of death as a penalty for the first time, 

found that its use was disfavored. This attitude toward death as a legitimate 

penalty raises significant questions about its use throughout the other 

phases of the law enforcement process. This is particularly true when it is 

imposed prior to trial. Any attempt to justify the use of death as a law 

enforremcuit technique must be done in light of _^*rn^n.

A more comprehensive analysis of the general purposes of the death penalty 
was undertaken by Justice Marshall. 408 U. S. at 342-359.

This conclusion was also reached by Justice Douglas, 408 U. S. at 257 and 
Justice Marshall, 408 U. S. at 371. Justice Burger in his dissent suggested 
that Justice White and Justice Stewart would net have objected to mandatory 
deatli piMialtles for specific crimes. 408 U. S. at 397, 403-403. Ihis 
position, if accurate, does not undermine tlie fact that botli Justice Stewart 
and Justice White clearly exhibited significant concern for protecting 
human life. 408 U.S. at 309, at 317. See also the opinion of Justice Powell
408 U. S. at 415, Note 1.

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The inevitable conclusion Justice Brennan reached from the application

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Moreover this re-evaluation cannot be avoided merely by labeling

Furman "a cruel and.unusual punishment clause case.". The concerts contviincd 

in the 8th and 14th'Amendments are essentially the same; there are cotK-erns

for human dignity.

[B]oth before and after sentencing, 
constitutional protection against police 
brutality is not limited to conduct violating 
the specific command of the 8th Amendment or 
as in Monroe v. Pape,. . .of the Fourth. Rochin 
V. California must stand for the proposition
that quite apart from any "specific" of the 
Bill of Rights, application of undue force by 
law enforcement officers deprives a suspect of 
liberty without due process of law. Jojinsou y._ 
Click, 481 F. 2d 1028, 1032 (2nd Cir.'*!^?!); 
see also, Jenkins v. Averett, 424 F. 2d 122, 
1232 (4th Cir., 1970)

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Thus it should be clear that when the Supreme Court undermined 

the policy justification upon which the existing standards relied when 

permitting the use of deadly force in tie arrest process, it also brought the 

practice itself into question. The concerns of the Court render those 

standards inapplicable in any due process determination. For example, 

when Justice Brennan's test is used as a mode of assessing whether or not the 

use of deadly force to capture a fleeing felony suspect adequately respects 

the human dignity of that suspect, the rule's fallings become even mere 

apparent.

(1) Unusual severity. Allowing a police officer to risk killing a 

fleeing suspect is obviously exposing that person to an unusually severe
I

use of force. Not only is death not the penalty for most offenses, but in 

the terms of this case, it is certainly not the penalty for escape, resisting 

arrest, or for allegedly stealing a car.

Since none of the chargeable offenses carry the death penally, and 

since the flight Itself did not justify executing the suspect, allowing a 

police officer to risk the suspect's life was clearly a debasement of life 

and has so been universally recognized by legal scholars. One of the leading

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law journal articles quoting Professor Mikell said:

It has been said, "Why should not this man 
be shot down, the man who is running away with 
an automobile? Why not kill l\im if you cannot 
arrest him?" We answer: because, assuming
that the man is making no resistance to the ofticer, 
he does not deserve death..Maybe I ask what wo aro 
killing him for when he steals an automobile and 
runs off with it? Are we killing him for stealing 
the automobile? If we catch him and try him,we 
throw every protection around him. Wo say he 
cannot be tried until 12 men of the grand jury 
Indict him and then he cannot be convicted until 
12 men of the petit jury have proved him guilty 
^jeyond a reasonable doubt, and then when we have 
done all that, what do we do to him? Put him before 
a policeman and have a policeman shoot him? 01 
course not. We give him three years in a peni­
tentiary. It cannot be that we allow the officer 
to kill him because he stole the automobile, because 
the statute provides only three years in the 
penitentiary for that. Is it then for fleeing?
And again I insist it is not a question of resistence 
of the officer. Is it for fleeing that we kill 
him? Fleeing from arrest is also a common law 
offense punishable by a light penalty. A penalty 
much less than that of stealing an automobile.
If we are not killing him for stealing the auto­
mobile and not killing him for fleeing, what are 
we killing him for? 13 Stanford, 566, 581 (1961)

(2) Arbitrary Imposition. If rarity and randomness of use are the indicia 

of arbitrariness, then the use of deadly force in the arrest process is 

arbitrary. Moreover, the statistics available provide a strong suggest ion 

tlial .Iiinllie Douglas’ concern over racially discriminatory Imposition 

was well founded. Reuben, Justifiable Homicide by __P_ol̂ c 

Journal of Criminal Law, Criminology and Police Science, 225 (1963) .

Similarly, arbitrariness exists because there are no standards for 

the police officer to consider. His decision depends more on his physical 

state or on his whim than it does on legal principles.

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(3) Societal Disapproval. The public debate over the use of deadl

force by police officers has been at least as continuous as the public debate 

over the death penalty. Moreover, of the more than three dozen articles

on the topic in legal periodicals, only one appears to find the common Law

rule acceptable and, in that article, the author incorrectly characterizes

the common law rule as allowing for the use of deadly force only where it is

clearly employed as a last resort. Rummell, The Right of Law Enfocement

Officers to Use Deadly Force to Effect An Arrest. 14 New York haw Forum

749 (1968), All of the other legal scholars have rationalized some rule

allowing the use of deadly force in limited situations; perhaps because of

the existence of a legal death penalty at the time of their writing.- They

all, however, found the common law rule abhorrent. The author of tlie note

contained at 15 Virginia Law Review 582 lamented that "it is to be regretted

that the pronouncements from the bench anent a modification have been confined

to dicta." Ibid., at 585. He continued.

It is to be hoped that there will be judges 
with sufficient courage to formulate a rule 
more consonant with the laws of humanity 
then Is the present, antequated law of the 
courts. With due deference it is submitted 
that the privilege to use a means likely or 

• intended to cause death for the purpose of
effecting an arrest should be limited to those 
crimes which are likely to cause death or 
threaten serious danger thereof.

Similarly, the author of a note entitled The Use of Deadly Force 

BJL. A Police Officer In the Apprehension of a Person In Flight. 21 University 

of Pittsburgh Law Review 132 (1959) went so far as to suggest that the solution 

to the problem might be for our police officers to follow the example of 

bobbies and carry no firearms at all in the line of regular duty. For other 

oxcelliuit examples of societal disapproval contained in legal per iod ica I.*> -̂ ee 

Tappan, Official Homicide 6 Lawyers Guild Review 400 (1946); Note,

Justification for the Use of Force in The Criminal Law. 13 Stamford Law

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Review, 566 (1961); Note, The Use of Deadly Force in the Apprehension of 

Fugitives from Justice 14 McGill Law Journal 295 (1968); Avins, Equal 

Protection Against Unnecessary Police Violence and the Orin^inal Understanding 

i of the Fourteenth Amendment; A Comment. 19 Buffalo Law Review 5 ’̂ 9 (1970); and 

The President's Commission on Law Enforcement nnd the Administration of

Justice Task Force Report; The Police, page 189 (1967)

(4) Less Drastic Means. The ability of police agencies to apprehend 

even the most illusive suspects, including but not limited to political 

suspects such as Angela Davis and the Bcrrigan brothers, clearly undercuts 

any claim that the use of force is needed to prevent the complete escape of 

a suspect. This is especially important in light of the indications that 

the existence of deadly force does not deter flight, Tsimbinos, 4 

Criminal Law Bulletin 3, supra. Moreover, there are obviously nondeadly 

means of force by firearms that can be employed by police officers. Articles 

in local newspapers have indicated that the use of birdshot rather than 

traditional shells has been considered by the state and local police.

Having examined the common law rule in light of the four point test 

contained in Justice Brennan's decision, it should be clear that the common 

law rule fails to satisfy the constitutional criteria requiring recognizition 

. of human life and dignity in just the same way that the death penalty fails 

to satisfy that constitutional criteria. The inhumanity of allowing a 

police officer to terminate the life of a suspect merely because he cannot

run as fast as Llie suspect Is even more shocking tlian Llie Inluimauilv foiiiul
I . . .it should be noted that all of the law review articles cited in this brief 

except for the Rummell article take a position calling for abandonment, 
modification, alteration or different application of the common law rule, 
unless they are justifying a rule that is already different from the common 
law rule. A similar indicia of disapproval can be found in the statutory 
alterations adopted by state legislatures when they enact a more limiting 
test such as variations of the model penal code.

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fc H TH iiiTn n  l i r i i i r i

10
to be contained in the uneven imppsition of death by juries. It is

Important to bear in mind that the sanctity of human life is so important

that even an accidental shooting is impermissible.

The Injury in this case could be called 
"accidental"^ only in the sense that it was 
not specifically intended. It was, however, 
the direct consequence of the Defendant's 
wanton conduct in the course of his attempt 

-- to apprehend the plaintiff... Our concern
b^re is with the raw abuse of power by 
a police officer... and not with simple 
negligence...Jenkins v. Averett, 424 F. 2d 
at 1033.

Vk.

III. DEADLY FORCE MAY BE USED BY A POLICE OFFICER TO EFFECT THE ARREST OF 
FLEEING FELONY SUSPECT ONLY UNDER LIMITED CIRCUMSTANCES

There is substantial reason to believe that a majority of the 

Justices of the United States Supreme Court still hold to the belief that 

there is room for a limited use of the death penalty. Certainly this 

would be true of all of the dlssentors. Moreover, Justices Douglas, Stewart 

and White all appear to be willing to accept the death penalty if its use 

could be nondiscrimlnatory, nonarbitrary and based upon clear and firm 

policy statements. 408 U. S. at 257, 310, 313-334. Mandating a death 

penalty for certain serious offenses would appear to meet this criteria 

since it might create or be based upon a meaningful relationship between 

the seriousness of the offense and the display of societal approval for the 

elimination of an individual convicted of committing such a lieinous offense.

10 _
This conclusion will also be reached if the four factor test identified 
in Johnson v. Click is employed. 481 F. 2d at 1033.

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‘] The underlying acceptance of some death penalties contained in Furman mzikes 

it impossible to argue that Furman mandates the end of the use of deadly 

force in all arrest situations. In fact, it is precisely the policies of 

Furman that limit the application of the death penalty that support the use

of deadly force in some circumstances in the arrest process. Those polioic:
- -  11

are the Court's concern for human life and dignity.

taking of one life to protect the life of oneself or of another 

has always been sanctioned by society, Miller Criminal I.aw, 199-218; 28 

Michigan Law Review 957-960, and has been constitutionally rccogn 1::lh1 .

Row V. Wade, 410 U. S. 113, 163-165 (1973). These principles are in full 

accord with the emphasis placed on human life and dignity. The balancing is 

between the lives of a suspected wrongdoer and an apparent victim. Similarly, 

the use of deadly force may be sanctioned where there is reason to believe
I

that the suspect's escape presents a threat of death or of serious bodily 

harm. Again the concern for the protection of human life allows for a 

balancing of the lives of the victim and the offender.

It is because of these principles relating to the need to respect human 

life and dignity that we have proposed the rule set forth on page 6 supra 

to govern tlie use of deadly force by police officers. As the rule is, in 

oHsence, ;j rest.itement of the model penal code rule, we have appt'iuleil a lopy 

of llie eomplele text of that rule to this brief. Its most relevant sections 

provide:

II

The use of force upon or toward the person of another 
is justifiable when the actor is making or assisting in 
making an arrest and the actor believes that such force is 
Immediately necessary to effect a lawful arrest. [However[ 
the use of deadly force is not justifiable under this Section 
unless:

a. the arrest is for a felony; and
b. the person effecting the arrest is author I/.ed

Although Furman is again used as an essential test, the upproacli coiilaitud 
in Johnson v. Click is similarly relevant. The Court there also recognized 
a need to balance force with protection of human dignity. 481 F. 2d at 1033<

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tQ act as a peace officer or is assisting 
{I person whom he believes to be authorized 
to act as a peace officer; and

c. the actor believes that the force employed 
creates no substantial risk of injury to 
Innocent persons; and

d. the actor believes that:
1. the crime for which the arrest is made 

Involved conduct including the use or 
threatened use of deadly force; or

2. there is substantial risk that the person 
to be arrested will cause death or serious 
bodily harm if his apprehension is delayed.

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It is our belief that the model penal code rule fully satisfies ^

of the requirements of Furman and of Johnson v. Click. It eliminates 

the concern that the use of deadly force might be unusually severe ' 

by clearly positing those special circumstances under which it might be used.

It limits it to those situations where there has been a felony which involved 

the use or threatened use of deadly force or where there was a substantial 

risk that the person to be arrested would cause death or seriou.s bodily 

harm if his apprehension was delayed. It not unusually severe for a police 

officer to risk the life of a flaelng suspect for the purpose of arresting 

him where it is clear that the fleeing suspect has or will place the lives
>

of others in danger. Similarly, it eliminates any arbitrariness in the use 

of deadly force by identifying those circumstances under which it may be 

used. Clearly, the thrust of the rule is to discourage the use of deadly 

force .and therefore those circumstances that warr.ant its use will appear 

to be icircumstances where the use of deadly force was entirely reasonable.
I :

The rule also clearly indicates under what circumstances society will approve ̂  

of the use of deadly force by a police officer and provides appropriate criteria, 

to determine whether or not the officer acted within the guidelines that '

have been laid down by society. An officer's failure to abide by the criteria 

set forth in such a rule would and should subject him to sanctions for
i

acting beyond the scope of that authority approved by society. Finally,

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the rule reduces the use of deadly force for those circumstances where less

drastic means are not available. The effect of this rule is to limit the

opportunity for a police officer to employ deadly force to only those

situations where it might be said there is a compelling need for him to do so.

IV. THE USE OF DEADLY FORCE BY THE DEFENDANT I'OLICE OFFICER WAS IN 
VIOLATION OF THE DECEDENT'S RIGHTS GUARANTEED TO HIM UNDER ITIE 
DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT

i:

In light of the foregoing discussion it is clear tliat the Uetond.mc's 

use of deadly force to effectuate the arrest of the decedent failed to 

satisfy the constitutional test.

While it might be asserted that the Defendant believed that deadly 

force was necessary to effect the immediate lawful arrest of the deceased, 

it may be stated with equal certainty that that was the only possible 

justification for the shooting. Moreover, even upon the stipulated facts 

in this case there is arguably a substantial element of negligence in the 

Defendant holding the belief that the shooting was essential. Decedent w.is 

merely 125 feet away from him and possibly could have been pursued on foot.

In this regard it is significant that assistance was on the way from the 

Hartford Police Department.

Even conceding arguendo that the Decedent knew that Officer M.arshall 

wanted to arrest him for stealing a car, it is obvious both from the nature 

of llie »)ffense and from the stipulated facts tliat Dennis' crime was not 

one that Involved the use or threatened use of deadly force ;uul tlial there 

was not substantial risk that the person to be arrested might cause death 

or serious bodily harm if his apprehension was delayed. What occurred in

4;.

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See American T,.nw Institute Model Penal Code, Tentative Draft No. S, Pap.i’ S.’ 
to 6‘) for .1 lull discussion of itie position of llu- Aiiu-rlc.ui Law 1 n:.i i t nt e 
on the .iilopted rule. See also Love v. Davis, 151 F. Snpp. 5H/ (i;.l). I.a. 
197i)

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the Instant case is that the Defendant police officer shot at a tlooing 

felony suspect arbitrarily chosen to be his victim. Moreover, he fired 

his weapon under circumstances which he had been instructed did not warrant 

shooting. It is this element of contra instruction which makes the defendant'; 

behavior appear particularly reckless, wanton, unfortunate and.sad.

The West Hartford Police Department Training Bulletin clearly 

warned against using deadly force simply to effect the arrest of a fleeing 

felon; especially if the felony Involved was automobile theft. It provided 

that;

In the Connecticut Police and Prosecutors 
Manual, you have read, when possible, you 
should, shoot to wound the person rather than 
to kill. The statement is right, but neither 
you nor I can be sure that the shot intended 
to injure and disable will not kill either tiie 
person that you are shooting at or some other 
person.

Therefore it is best to shoot only when killing 
! would be justified. Shoot to kill.
i

Stealing a motor vehicle is a felony but shooting 
at a car that is carried on your verified list 
or just given out is the wrong thing to do.
You do not know who is in the car or why. It 
could even be the owner. Most times it is some 
kid, who, if caught, is turned over to the Juvenile 
Court, or, if a little older is charged witli 
taking a motor vehicle without permission, a 
misdemanor. "Gun Use Guidelines Are Read by 
Police Force," West Hartford News, December 18,
1959, page 6.

The tragedy of the death of Dennis Jones is not merely that it 

should not have happened. It is moreover that it could easily happen again.

Ah long as the common law rule exists it will continue to provide an aura 

of permissiveness. It will continue to provide an aura that encourages 

police officers to act as judge, jury and executioner.

For centuries, the rule has been criticized. For decades modern 

legal scholars have condemned it. The underlying and only rational

rt
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Justification for the rule was eliminated in Rome by a clerical convention 

759 years ago. Yet the rule persists and each year finds some new youngster's 

needless death justified on its alter of stupidity. Admittedly it nuiy 

appear inequitable to this particular defendant to cast aside tlio common law 

defense in his case. However, if it had been previously repudiated, tiiero 

%rould hopefully have been no case. And if it is eliminated in this case.

hopefully there will be no others.

Respectfully submitted,

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Bruce Mayor
Attorney for Plaintiff

CERTIFICATE OF SERVICE

This is to certify that a copy of the foregoing Plaintiff's Uriel 

In Support of His Motion for Summary Judgment has been mailed, postage 

prepaid this 26th day of March, 1974 to Robert Pelgrift, Esquire, Uhl 

Mountain Road, Farmington, Connecticut.
/

Bruce Mayor »

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UNITED STATES DISTRICT COURT 
' DISTRICT OF CONNECTICUT

FLOZELL JONES, Individually and as 
Administrator of the Estate of 
Dennis Jones, Decedent

CIVIL ACTION NO. 13, 811
Plaintiff

va.
PLAINTIFF'S BRIEF IN SUPPORT 
OF ms MOTION FOR SU^nL-\RY 
JUDGMENT

KEITH MARSHALL

Defendants

EXCERPTS FROM THE MODEL PENAL CODE

Section 3.07. Use of Force In Law Enforcement.

(1) Use of Force Justifiable to Effect an Arrest. Subject to the provisions 
of this Section and of Section 3. 09, the use of force upon or toward the person of 
another is justifi:4)le when the actor is making or assisting in making an arrest 
and the actor believes that such forcg is immediately necessary to effect a 1 awful 
arrest.

(2) Limitations on the Use of Force.

(a) The use of force Is not justifiable under 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

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

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

(1) the arrest is for a felony; and

(ii) the person effecting the arrest is authorized
to act as a peace officer or is assisting a person 
whom he believes to be authorized to act as a peace 
officer; and

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(Hi) the actor believes that the force employed creates 
no substantial risk of injury to innocent persons; and

(Iv) the actor 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 serious 
bodily harm if his apprehension is delayed.

ih

Section 3.09.

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Mistake of Law as to Unlawfulness of Force or Legality of 
Arrest; Reckless or Negligent Use of Otherwise Justifiable 
Force; Reckless or Negligent Injury or Risk of Injury to 
Innocent Persons.

(1) The justification afforded by Sections 3.04 to 3. 07, inclusive, is 
unavailable when:

(a) the actor’ s belief in the unlawfulness of the force or conduct 
against which he employs protective force or his belief in
the lawfulness of an arrest which he endeavors to effect by force 
is erroneous; and

(b) his error is due to Ignorance or mistake as to the provisions 
of the Code, any other provision of the criminal law or the law 
governing the legality of an arrest or search.

(2) When the actor believes that the use of force upon or toward the 
person of another is necessary for any of the purposes for which such belief would 
establish a justification under Sections 3. 03 to 3. 08 but the actor is reckless or 
negligent in having such belief or in acquiring or failing to acquire any knowledge 
or belief which is material to the justifiability of his use of force, the justification 
afforded by those Sections is unavailable in a prosecution for an offense for which 
recklessness or negligence, as the case may be, suffices to establish culpabihu .

(3) When the actor is justified under Sections 3.03 to 3.08 in using foice 
upon or toward the person of another but he recklessly or negligently injures or 
creates a risk of injury to innocent persons, the justification afforded by those 
Sections is unavailable in a prosecution for such recklessness or negligence towards
Innocent persons.

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UNITED STATES DISTRICT COURT 

DISTRICT OF CONNECTICUT

FLO ZE LL  JONES, Individually and as 
Administrator of the Estate of Dennis 
Jones, Decedent,

Plaintiff-

vs.

TOWN OF WEST HARTFORD, a Municipal 
Corporation,
KEITH MARSHALL, Officer, West Hartford 
Po lice Department,
W ILLIAM  RUSH, Chief of Police, West 
Hartford Police Department, and 
RICHARD CUSTER, Town Manager, Town 
of West Hartford, Defendants

C O M P L A I N T

April 22, 1970

CIVIL NO.

) ,

Bruce Mayor, Esq.
Ill Pearl Street 
Hartford, Conn.
Louis I. Parley, Esq. 
IBOO Asylum Avenue 
West Hartford, Conn.
Patrick Brown, Esq. ISOO Asylum Avenue 
West Hartford, Conn. 

Of Counsel

• ^



COM PLAINT

I. JURISDIC TION

' ‘ This is an action to redress the deprivation, under color of

law, statute, ordinance, regulation, custom or usage, of rights, | >- alleges,
m - «(Mir • •

and immunities secured to the plaintiff and to the plaintiff's decedent,

Dennis Jones, by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amend­

ments to the Constitution of the United States by the laws of the U r '  d 

States, including 42 U. S. C. § 1983 and 1988, and by the statutes, ord i­

nances, regulations, customs, usages, and common law of the State of 

Connecticut* '

2. The jurisdiction of this court is invoked pursuant to 28 U. S. C. 
• •

1343, and the laws of the State of Connecticut.

3, The jurisdiction of this court is further invoked pursuant to 

28 U. S. C. § 1331, the matter in controversy exceeding, exclusive of 

interest and costs, the sum or value of $10, 000. 00. '

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PARTIES

A. Plaintiff

1. The plaintiff, FlozeU Jones, is the natural parent of the decedent,

Dennis Jones, aged 16 years old, late of Hartford, Connecticut, and has been 
• •

appointed by the Hartford Probate Court as the Administrator of ;he Estate 

of Dennis Jones and has qualified as such Administrator, and is acting 

herein both ap natural parent and Administrator.

2. Plaintiff is a citizen of the United States and a resident of the

City of Hartford and the State of Connecticut. :

B. Defendants

1. Defendant, Keith Marshall was at all times mentioned herein,

and still is, a citizen of the United States and a resident of the State of

Connecticut, and the dxily employed officer of the West Hartford Pol'.ce
%

Department.

2. Defendant William Rush was at all times mentioned herein, and 

still is, a citizen of the United States and a resident of the State of Connec-  ̂

ticut, and the duly employed Chief of Police of West Hartford.

3. Defendant Richard Custer^^ was at all times mentioned herein, 

and still is, a citizen of the United States and a resident of the State of 

Connecticut and the duly employed Town Manager of the Town of West 

Hartford.

4. Defendant Town of West Hartford, was at all times ment^.oned 

herein, and still is, a' duly incorporated municipal corporation of the State

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of Connecticut.

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FIRST CAUSE OF ACTION

• •
1. On August 29, 1969, around noon-time. O fficer Keith 

Marshall, of the West Hartford Po lice Department, while on patrol in a 

police cruiser, and in the course of the performance of his duties, observed 

a Cadillac automobile, occupied by three Negro males, later indentified as 

Russell Seals, J r ., Raymond A rter, and Dennis Jones, all of Hartford, 

Connecticut, proceeding in a westerly direction on Simsbury Road, in West 

Hartford, in the vicin ity of the Hartford Golf Club.

2. O fficer Marshall began to follow the automobile, and 

through contact with West Hartford Po lice  headquarters, received informa­

tion that it was a stolen vehicle.

3. O fficer M arsh ill continued to follow  the car, which changed 

direction, and began to head e;.»t, to Hartford, on Albany Avenue. A fter 

crossing the Hartford town lii.;, the car turned le ft at Mark Twain Drive, 

and headed in a northerly dir»ction. The car then turned right onto

Dill^on Road, and then circ le; back onto Mark llwain Drive, once again
n

heading north. '
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4. During tJ» course of this pursuit. O fficer Marshall did not
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activate his siren or wai/ing light.

5. During che course of his pursuit. O fficer Marshall had 

contact with the Hartfo d Po lice Department, which dispatched a cruiser 

to his assistance, "he Hartford cru iser came on the scene in the vicinit/ 

of Mark Twain Dr/ve, \»lth its headlights, warning lights, and siren 

activated.

6 At this point, the Cadillac, which had not gone faster than 

th irty-five ’ forty m iles per hour, accelerated, and the two police cars 

increased / Jeed to remain in pursuit.

7. The Cadillac continued north, to the'Mark Twain Extension, 

where it ikidded ;o a halt. .

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' 8* The occupants of the car immediately got out and ran up

an embankmont. * Officer Marshall arrived on the scene shortly ther&fter 

and also skidded to a halt.

9. Upon alighting from his cruiser, and not immediately 

seeing the three men. Officer Marshall climbed to the top of the embank­

ment, from which point he observed two men running. He called at them to 

hilt, and then, without firing a warning shot, or attempting any other means 

of apprehension, fired his gun at one of the men, later identified as Dennis 

Jones, the plaintiff's decedent. The shot struck Dennis Jones and caused 

serious injuries and death.

10. An autopsy report showed that the bullet fired by Officer 

Marshall struck Dennis Jones in the left buttock; that it penetrated through 

the left ilium, and lacerated the left common iliac artery, peritoneum', 

mesentery, and jejunum.. The report further sho.wed that there was intra­

abdominal and retro-peritoneal hemmorrhage, which was secondary, par- 

ticvilarly to the laceration of the aforesaid iliac artery.

11. Despite first aid measures that were applied at the scene, 

Dennis Jones was dead on arrival at Saint Francis Hospital in Hartford.

12. The aforesaid actions of defendant Keith Marshall, acting 

under color of law, deprived Dennis Jones of those rights secured to him

by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the 

Constitution of the United States and the Laws of the United States in that 

the use of deadly force against a fleeing person, in circximstances where 

the person is not reasonably suspected of committing or having committed 

a crime of serious bodily injury and is not reasonably suspectt^jif being 

armed, deprives that person of the right to due process of law and to all 

the safeguards which said Amendments are designed to assure a person in 

such ciriumstances in the normal course of the criminal process, and 

deprives that person of the right to be secure in his person and to be free

of physical abuse.
\

- 4

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SECOND CAUSE OF ACTION
<

1. All of paragraphs one through eleven (1 - 11) of the first 

cause of action are included and made a part of this cause of action as if 

repeated and fully set forth herein.

2. Defendant William Rush, as Chief of Police of the West

Hartford Police Department, and the superior and supervising officer of

defendant Officer Marshall, failed to provide for, secure to, or teach to.

Officer Marshall, and the other members of the West Hartford Police 
• •

Department, instruments, contrivances, techniques, means and modes of efj

fecting an arrest in the circumstances of this case without the use of deadly

force, and said acts or ommissions were contributing causes to the death 

of Dennis Jones.

3. Defendant William Rush failed to promulgate and super­

vise and enforce standards prohibiting the use of deadly force by the mem­

bers of the West Hartford Police Department .when effecting an arrest in 

the circumstances of this case, and said acts or omissions were contri­

buting causes to the death of Dennis Jones.

4. Defendant William Rush was at all times acting under 

the color of law and the authority of his position, and said acts or omissions 

caused Dennis Jones to be deprived of those rights secured to him by the 

Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitu­

tion of the United States and the Laws of the United States in that the use 

of deadly force against a fleeing person, in circumstances where the person 

IS not reasonably suspected of committing or having committed a crime of 

serious bodily injury and is not reasonably suspected of being armed, de­

prives that person of the right to due process of law and to all the safeguards! 

which said Amendments are designed to assure a person in such circum­

stances in the normal course of the criminal process, and deprives that

person of the right to be secure in his person and to be free of physical 

abuse.



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THIRD CAUSE OF ACTION
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1* A ll allegations of the first and second causes of acti^on 

are included and.made a part of this cause of action as if repeated and 

fully set forth herein.
i1 . ■

2. Defendant Richard Custer, as Town Manager of the Town
I .

of West Hartford, has the responsibility for overseeing the performance of 

its officers, agents, employees, departments and agencies, and, acting 

in this capacity, he failed to cause the West Hartford Police Department 

to promulgate and supervise and enforce standards prohibiting the use of 

deadly force by the members of the West Hartford Police Department when 

effecting an arrest in the circtimstances of this case, and said acts or 

omissions were contributing causes to the death of Dennis Jones.
t ■ • •

3. Defendant Town Manager was at all times acting under 

color of law, and the authority of his position, and said acts or omissions 

caused Dennis Jones to be deprived of those i;ights secured to him by the • •

Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Consti-
*• /

tution of the United States and the Laws of the United States in that the
0

use of deadly force against a fleeing person, in circtimstances where the 

person is not reasonably suspected of committing or having committed a 

crime of serious bodily injury and is not reasonably suspected of being 

armed, deprives that person of the right to due process of law and to all 

the safeguards which said Amendments are designed to assure a person in 

such circumstances in the normal course .of the criminal process, and 

deprives that person of the right to be secure in his person and to be free

of physical abuse.

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FOURTH CAUSE OF ACTION

1. A ll of paragraphs one through eleven (1 - 11) of the firs t 

cause of action and paragraphs two and three (2 and 3) of the second cause 

of action and paragraph two (2) of the third cause of action are included and 

made a part of this cause of action as i f  repeated and fully set forth herein.

2. Defendant Keith Marshall was negligent in that:

a. In apprehending Dennis Jones, he used m ore force than 

was reasonably necessary in the circumstances;

b. He used deadly force to apprehend a person fleeing who 

was not reasonably suspected of committing or having committed a crime 

of serious bodily injury and was not reasonably believed to be armed: and

c. He violated the policy, regulations, and standards of the 

West Hartford Po lice Department concerning the use of deadly force as 

set forth in West Hartford Police.Train ing Bulletin dated October 27, 1967,
I .

and in the guidelines of the Task Force on Po lice of the President's Com- 

m ission on Law Enforcement and the Administration of Justice.

3. Defendant W illiam  Rush was negligent in that:

a. He failed to provide for, secure to, or teach to O fficer 

Marshall, and the other members o f the West Hartford Police Department, 

instruments, contrivances, techniques, means and modes of effecting an 

arrest in the circumstances of this case without the use of deadly force;

b. He failed to promxilgate and supervise and enforce stan­

dards prohibiting the use of deadly force by the members of the West

Hartford Po lice Department when effecting an arrest in the circumstances o| 

this case.

' 4. Defendant Richard Custer was negligent in that he failed

to cause the West Hartford Police Department to promulgate and supervise 

and enforce standards prohibiting the use of deadly force by the members of|

the West Hartford Po lice Department when effecting an arrest in the c ir ­

cumstances of this case. ' '



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5,’ As a direct and proximate result of the aforesaid acts

and omissions, the plaintiff's decedent suffered great injury to his body, 

internal organs, and surrounding tissue, and extensive bleeding, and great 

physical pain and mental anguish prior to his death, and death. As a result

of said injuries and death, his wage-earning capacity was totally destroyed.
»

As a further result of said injuries and death, costs and expenses were iii- 

currsd by his estate in connection with his final treatment and burial.

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1
FIFTH  CAUSE OF ACTION t

1. A ll paragraphs of the first, second, third, and fourth 

causes of action are included and made a part of this cause of action as 

i f  repeated and fvilly set forth herein.

times mentioned herein, defendants Keith Marshall, 

W ilham Rush and Richard Custer, were duly employed by the Town of 

West Hartford,, and were acting, as its agents, employees, and offio-rs, 

in the performance of their duties and within the scope of their employmeu*.

3. At a ll times mentioned herein, and at the present time, 

defendant Town of West Hartford was a municipal corporation of the State 

of Connecticut, and was the employer of defendants Marshall, Rush and 

Custer, and that the defendants Marshall, Rush and Custer performed all 

acts or omissions menUoned herein in the name of, and for the authority 

of, the Town of West Hartford.

4. The Town of West Hartford is incorporated under the laws

• of the State of Connecticut with authority to sue and be sued in its corporate

name, and is liable for the acts of its employees pursuant to the statutes.
• •

of the State of Connecticut.
I

5. Notice of intention to commence this action and of the time 

and place where the injuries and death occurred has been filed with the

Town Clerk of the Town of West Hartford within six months after the in­

juries and death occurred.



: I
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PRAYER FOR RELIEF 

WHEREFORE, the plaintiff prays:

1. Judgment against defendants Keith Marshall, W illiam 

Rush and Richard Custer, and the Town of West Hartford, in the amount 

o f $200, 000. 00.
I

i ‘ .
I 2. Judgment against defendant W illiam  Rush, and his em ­

ployer, the Town of West Hartford, and an order requiring him to:

a. Promulgate and make public record of police 

department standards regulating the use of deadly force

, by members of his department when effecting an arrest.
y ■ •

b. Institute a program  for testing the members of 

the police department to insure their continuing adherence

• to department standards regarding the use o f deadly force.

■ ' c. • Secure devices, instrximents, or equipment to be

• used and carried by the members of the police department as
I ■ ■

means of apprehending fleeing suspects without the use of 

deadly force, and to educate members of the police department 

in the proper use of such alternative devices. ’ ^

3. Judgment against defendant Richard Custer, and his 

^^^pl®ycr, the Town of W^est Hartford, and an order requiring him to: 

j Assist in the establishment of procedures for en-

> <•
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• ■ V • *

; lating to the use of deadly force.

( ' b. Assist in the efforts to secure devices, instruments or

■ equipment to be used fo r apprehending fleeing suspects without 

the use o f deadly force.
. t •'»*

4. Such other re lie f as may be appropriate.

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April 22, 1970

Respectfully Submitted, 
THE PLAINTIFFS

BT:
Bruce m a y0 I 7 W 0 .

LOOls I. F A R M ,  eSq .

HtklcK bRowN , ES(5. 
Their Attorneys

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UNITED STATES DISTRICT COURTi, ' . ..ONM.
DISTRICT OF CONNECTICUT

FLOZELL JONES, Individually 
and as Administrator of the 
Estate of Dennis Jones, 
Decedent

V.

KEITH MARSHALL, Officer, 
West Hartford Police 
Department

CIVIL NO. 13,811

RULING ON CROSS MOTIONS FOR SUMMARY JUDGMENT

This is an action for damages for the death of Dennis
Jones that has been brought by his father as administrator of
his estate. The defendant. Officer Keith Marshall of the
West Hartford Police Department, who shot and killed Jones,
is alleged thereby to have deprived the decedent of his civil

1/rights under color of state law. 42 U.S.C. § 1983 (1970), 
Jurisdiction is proper tinder 28 U.S.C. § 1343(3) (1970). The 
parties have filed cross motions for summary judgment based 
upon the following basic facts to which they have stipulated.

. ^

17
The complaint originally named as defendants Marshall; the 

Town of West Hartford; William Rush, Chief of the West 
Hartford Police; and Richard Custer, West Hartford Town 
Manager. The causes of action against all but Keith Marshall 
were dismissed by order of this Court, Jones v. Marshall.
Civ. No. 13,811 (D. Conn. 1971), and a claim of negligence 
■against Marshall was- subsequently withdrawn by the plaintiff, 
leaving the § 1983 claim against Marshall as the sole cause 
of action.



KT. 1

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- 2 -

t-
I, Facts

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On August 29, 1969, at approximately noon. Officer 
Marshall, while on patrol in his cruiser, observed a Cadillac 
being driven by three males, later identified as Russell 
Seals, Jr., Ra3rmond Arter, and Dennis Jones. Through radio 
contact with the West Hartford Police Headquarters, Marshall 
learned that the automobile was a stolen vehicle and began to 
follow it. Marshall made no attempt to stop the car and did 
hot activate his siren or flasher. The Police Headquarters 
radioed him that assistance from the Hartford Police Depart­
ment was on the way.

The Cadillac and Marshall proceeded for some time into 
Hartford at a moderate pace. However, when the Cadillac 
entered Mark Twain Drive from Dillon Road it accelerated to 
about 80 miles per hour and proceeded, with Marshall in pur­
suit, onto Mark Twain Extension. At the end of the Extension, 
the Cadillac and the police cruiser skidded to a halt, creating 
a large cloud of dust.

Marshall alighted from his cruiser with his weapon 
drawn. Since the occupants of the Cadillac were not immedi­
ately visible, Marshall climbed to the top of a nearby embank­
ment, and from that point he observed two males running across 
an open field. He called to them to halt. They did so 
momentarily and turned to face him; then they turned and 
began to run away from Marshall foward a nearby wooded area.



- 3 -

Without firing a warning'shot or attempting any further 
means of apprehension, Marshall fired his gun at one of them, 
Dennis Jones. Although Marshall aimed at Jones' leg, the 
bullet struck the decedent in the left buttock and then pene­
trated the left ilium and lacerated the left common iliac 
artery, peritonexmi, massentery, and jejunvnn, causing death.
At the time, Marshall was 125 feet from Jones; the intervening 
distance can be characterized as rough terrain containing a 
gully and covered with bushes and underbrush.

Neither Jones nor the other individuals in the Cadillac
was armed or specifically threatened physical injury in any

«manner to Officer Marshall or anyone else. The automobile 
pursuit did not endanger anyone other than the occupants of . 
the two cars.

Officer Marshall actually and reasonably believed that 
Jones was a felony suspect. Theft of a motor vehicle was 
defined by state law as a felony at the time these events 
occurred. Conn. Gen. Stat. § 53-57. Marshall actually and 
reasonably believed that it was necessary under the circimi- 
stances to use deadly force to apprehend and arrest Jones.

II. Civil Liability and the Constitutional Claim 
If this case had been brought as a wrongful death 

action in state court, there could have been no recovery: 
Marshall, on the stipulated facts, would have been privileged 
to shoot at Jones. In Martyn v .’’ Donlin. 151 Conn. 402 (1964),



- 4 -

a police officer (Donlin) chased and shot one whom he reason­
ably believed to be a felon (Martyn) when Martyn ignored the 
officer’s order to stop and climbed over a fence. Finding 
that Donlin had a reasonable belief that the use of deadly 
force was necessary to effect the arrest, the court declined
to hold him liable for Martyn's death. The case states the

2/Connecticut common law principles
"Under our rule, in effecting a legal arrest, 
the arresting officer may . . . use such force 
as he reasonably believes to be necessary, 
under all the circumstances surrounding its 
use, to accomplish that purpose, that is, to 
effect the arrest and prevent an escape. . . .
But the use of a means, or of force, likely to 
cause death, as was the case here, is privileged 
only if the arrest was for a felony and the 
force used was reasonably believed to be 
necessary to effect that arrest. . . .

tf• • • •

If

. I

. An officer in using deadly force for 
this purpose must act in good faith. He must 
have actually believed, and also have had reason­
able cause to believe, that it was necessary 
under the circumstances, to use deadly force to 
make the arrest."
These common law principles, if constitutional, are 

applicable here; in Pierson v. Ray, 386 U.S. 547 (1967), a 
suit under § 1983 for damages for false imprisonment, the 
Court emphasized that the section "should be read against the 
background of tort liability" and recognized the common law

17
Although there are*variations of this rule in some states, 

the Martyn formulation is representative of the common law 
rule.
3/

151 Conn, at 411-12.

[



««

-  5 -  _

privilege of a police officer to make an arrest, in good 
faith and with probable cause, of one whose innocence is later 
proved. Similarly, this Court must allow Marshall to use the 
common law privilege enunciated by Martyn v. Donlin as a 
shield against liability unless that common law privilege 
itself be xmconstitutional. C^. Jenkins v. Averett. 424 F.2d 
1228 (4th Cir. 1970); Clark v. Ziedonis. 368 F, Supp. 544 
(E.D. Wis. 1973); Love v. Davis. 353 F, Supp. 587 (W.D. La. 
1972).

The plaintiff does not challenge any of these principles 
as embodied in Connecticut's law other than that element which 
extends the privilege to use deadly force to attempt to effect 
an arrest for an offense that did not pose the risk of death 
or serious bodily harm. As to this element, the plaintiff 
contends that the proposed limitations on the use of deadly 
force, as stated in the Model Penal Code, are constitutionally 
required. With regard to the instant case, the relevant sub­
sections in that code provide:

"(b) The use of deadly force is not 
justifiable under this Section unless;

(iv) the actor believes that:
(1) the crime for which the arrest is 
made involved conduct including the 
use or threatened use of deadly force; 
or
(2) * there is a substantial risk that 
the person to be arrested will cause 
death or serious bodily harm if his 
apprehension is' delayed." 4/

57Model Penal Code § 3.07(2)(b)(iv) (proposed official draft 
1962).

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. 6 -

The basis for the plaintiff's contention lies in policy 
argtments that allowing the use of deadly force in circxjm- ' 
stances such as those of this case is "illogical, antequated 
[sic] and barbaric." Reduced to its essence the argument is 
that allowing life to be taken to protect property is barbaric 
in our modem world, where only jail sentences and fines are 
prescribed as punishments for crimes against property. In 
arguing that "[t]he balance [between the value of a suspect's 
life and the threat he poses to society] against life that 
exists in the common law rule is reversed," the plaintiff 
relies upon language that appears in the opinions in Furman 
V. Georgia. 408 U.S. 238 (1972). Furman provides no support 
for that proposition, however. The case cannot be explained 
as founded upon an overriding reverence for human life.
Fuiman does not hold that imposition of the death penalty is 
^constitutional. Rather, the key to Furman is only its 
insistence that in the imposition of the death penalty pro­
cedures which allow the wide discretion to triers heretofore 
employed are not permissible. Note, "Discretion and the
Constitutionality of the New Death Penalty Statutes," 87 Harv. 
L. Rev. 1690 (1974).

In his argument the plaintiff also relies upon Johnson 
V. Click, 481 F.2d 1028 (2d Cir. 1973), which sets up as a 
criterion for § 1983 actions which seek damages for personal 
injuries at the hands of state officials the "shock-the- 
conscience" test of Rochin v. California. 342 U.S. 165 (1952).



i  .

.  iT

- 7  -

The plaintiff’s contention is that if that criterion is 
jsjpplled the Martyn rule falls on the wrong side of the line. 
However, language in Johnson itself proves that the plaintiff 
has misread its scope: "Certainly the constitutional protec­
tion is nowhere nearly so extensive as that afforded by the 
common law tort action for battery, which makes actionable any 
intentional and unpermitted contact with the plaintiff's 
person . . . 481 F.2d at 1033. In the present case, of
course, the plaintiff could not recover in tort at common law, 
for Marshall under the common law was privileged under the 
circumstances to fire at Jones.

I It is noteworthy that during the course of the recent
codification and substantial revision of Connecticut's 
criminal laws, which effort used the Model Penal Code as a 
guide, the Martyn rule was retained and c o d i f i e d . T h e  Court

5 T
Conn. Gen. Stat. § 53a-22 provides, in pertinent part:

"Sec. 53a-22. Use of physical force in making 
arrest or preventing escape.

(a) For purposes of this section, a reason­
able belief that a person has committed an offense 
means a reasonable belief in facts or circum­
stances which if true would in law constitute an 
offense. If the believed facts or circumstances 
would not in law constitute an offense, an erro­
neous though not unreasonable 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 
who is effecting an arrest pursuant to a warrant 
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.
[Footnote continued on following page.]



- 8 -

regards this legislative assessment of the balance between 
life and property values, occurring as it did after the events 
here in question took place, as strong evidence that the 
common law rule is not one which is generally regarded as so 
shocking to the conscience as to violate the Constitution. 
While there is no doubt that a contrary view exists and indeed 
has much to support it, it is not the prerogative of this 
Court to judge the constitutionality of state laws on policy 
grounds alone,*as the plaintiff would essentially have it do. 
If the plaintiff believes the state law on the use of deadly 
force to effect an arrest to be unjust or overly harsh, it 
is to the legislature, and not the federal courts, that he 
must turn. The plaintiff*s motion for summary judgment is

5/ cont'd
(b) Except as provided in subsection (a),

a peace officer is justified in using reasonable 
physical force upon another person when and to 
the extent that he reasonably believes it neces­
sary to: (1) Effect an arrest or to prevent the
escape from custody of a person whom he reason­
ably believes to have committed an offense, un­
less 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 is justified in using
deadly physical force upon another person for 
the purposes specified in subsection (b) only 
when he reasonably believes that such is neces­
sary to: (!)• 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 escape from custody of a person whom he 
reasonably believes has committed or attempted 
to commit a felony." (Emphasis in original.)

r



- 9 -

denled, and the defendant *s motion for summary judgment is 
granted.

SO ORDERED. ... . --

Dated at Hartford, Connecticut, this d a y of
October, 1974.

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M. Josedh Blumenfeld f  
United Stated District Juage

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