Alabama v. Pruitt Reply Brief and Argument of Graddick

    NO. 84-713
IN THE SUPREME COURT OP THE 

UNITED STATES

OCTOBER TERM, 1984
STATE OP ALABAMA AND 
CHARLES A. CRADDICK,

X / Y ^ torney g e n e r a l, petitioners

VS.
DARRYL PRUITT, RESPONDENT
ON PETITION POR A WRIT OP 

CERTIORARI TO THE UNITED STATES 
COURT OP APPEALS POR 
THE ELEVENTH CIRCUIT 

(PRIOR TO PINAL JUDGMENT)
REPLY BRIEP AND ARGUMENT

OP
CHARLES A. GRADDICK 
ATTORNEY GENERAL

AND
JOSEPH G. L. MARSTON III 

ASSISTANT ATTORNEY GENERAL

OPPICE OP THE ATTORNEY GENERAL 
250 Administrative Building 

64 North Union Street 
Montgomery, Alabama 36150 

(205) 834-5150
ATTORNEYS POR PETITIONER



V

;3̂ ;‘‘v- ;;■

P51

•; “ ’''■. •!<>
•ii?irr/y '-' -

■■-'■ -̂ ŷy

--- " V- -.-T̂iTf '•...̂. ■■Kv.:,p

: _- : ■ ; ■
 ̂=-(--;SKSV'* - ■ ’ -.

......■ '"« *

,T*\ '-'Tv" !
<. f  V-. , i

n-

^ ' P s k ' ^T-rf’- ‘ k ^ ■'̂

^  “ -v - < K W  ’-t Jirj?

, * - 'ft .‘ 'f ,rV ' r ■
v‘s > ^ 'i * v '- - “ - '- - - ‘>- '<'.1 •'.4^6*5  :■•■•- ' J

, ,̂' t* ^  ^ J , M “v - V„

■ fs?̂



NO. 84-71^
IN THE SUPREME COURT OP THE 

UNITED STATES

OCTOBER TERM, 1984
STATE OP ALABAMA AND 
CHARLES A. CRADDICK, 

ATTORNEY GENERAL, PETITIONERS
VS.

DARRYL PRUITT, RESPONDENT
ON PETITION FOR A WRIT OP 

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

(PRIOR TO PINAL JUDGMENT)
REPLY BRIEF AND ARGUMENT

OP
CHARLES A. GRADDICK 
ATTORNEY GENERAL

AND
JOSEPH G. L. MARSTON III 

ASSISTANT ATTORNEY GENERAL

OFFICE OP THE ATTORNEY GENERAL 
250 Administrative Building 

64 North Union Street 
Montgomery, Alabama 36130 

(205) 834-5150
ATTORNEYS FOR PETITIONER



a

. ijr «■: a, m ::

, -î .- ■• - - V .   ̂ f .4 ■-..^. ..

q : m .  - A m & R i l h . .■■ 'A -

j s ' ^ ' u . < r ' i i v f f i ' '  .... A:

-vm ^: : ; U r ' ' V U '  « - 5 | ;
V  ̂ * a  f  - /A . 'H

V . i : H l  A  f O f  ' t'-  - .
T “s r a  a  r - r - n

■ S 'l' , - ^  ,;? V '^ 4  . ;,,,i.
,a  ”'■ " :.' A \-f A'*?, *'- ASf

A • „.;u .•; V  •̂ •>-- '- '.v

! i ' r  e /•'V  ;•'■ V 'A -- f-'- '.- 'i '
. ,  J '  ■ v A l  ,4 .. ,?• j

i r D s t f f c A a A t i -  7  r ?  :

r |K  ~ c ^ ' 7 ^

■4 A? ? A; '-AA'KA.i' a

■'T-.,, -ir 'r̂ ~r-

' ' ’ A.-- r  - | r - . ; :^a ;
t T . ■ ■̂ ' i  -

J r  ^
tA c-A ^  ^

* - ' .  r A ' - i r ' A ^ ' a E- ; A, i ■
. -*• 7

*r ' “i ' ' • ■ ■ ■ =̂ - 5 . . ; , '  7 T -

-' A  5 , -  <1^3 > 13 , j; A •<• v \ ' - . -
A' - |vl

r ^ r  r (  « a '-•■ ■ : i ■ - /

• ' T  ; -4 . ; - ;: A  A- - .

■m

Sft

■̂ 5 V



TABLE OF CONTENTS

PAGE

TABLE OP CASES-------------------  ii
TABLE OF STATUTES----------------  ii
RESPONSE TO THE RESPONDENT'S

STATEMENT OP THE PACTS--------- 1
SUMMARY OP THE REPLY ARGUMENT---  2
REPLY ARGUMENT-------------------  3

I. THE IMPACT OP GARNER ON
THIS CASE------------------- 3

II. IT IS IMPERATIVE THAT THE 
CONFUSION CREATED BY THE 
DISTRICT COURT BE RESOLVED—  7

CONCLUSION-----------------------  15
CERTIFICATE OP SERVICE----------- 16



TABLE OP CASES

PAGE

Ayler v. Hopper,
P.Supp. 198

(M.D.Ala., 1981)-------
Memphis Police Department v. 
Garner,

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

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

Tennessee v. Garner,
U.S.
L.Ed.M“

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

6,8

2,4

2,4

TABLE OP STATUTES

Code of Alabama, 1975

PAGE

Section 13A-3-27---------- 1,6,7
United States Code

Title 28, 
Section 1254-

11



RESPONSE TO RESPONDENT’S 
STATEMENT OF THE FACTS

The Respondent's statement of the 
facts seems to suggest that it was un­
necessary for Officer Kidd to shoot in 
order to effect the arrest of the 
Respondent, or, to put it another way, 
the Respondent suggests that Officer Kidd 
acted improperly under Section 13A-3-27, 
Code of Alabama, 1975- The Petitioners 
point out that, without in anywise 
conceding its validity, such a suggestion 
contradicts nothing in the Petition. The 
Petitioners are not here to defend 
Officer Kidd, the City of Montgomery, or 
anyone or anything, except the constitu­
tionality of Section 13A-3-27, Code of 
Alabama, 1975«



SUMMARY OF THE REPLY ARGUMENT 
1. The Respondent's argument on the 

significance of Tennessee v. Garner (No. 
83-1035) and Memphis Police Department v. 
Uarner ( No.83-1070) to this case is 
contradicted by the position he takes in 
the Court of Appeals. See the Petition, 
Appendix "E". The Alabama statute has, 
through no fault of the People or 
officials of Alabama, been in constitu­
tional limbo for nearly five years. This 
untenable situation will prevail until 
this Honorable Court acts authoritative­
ly*

2. The Common Law Rule and the
Alabama Statute balance the rights and 
protection of society, arrestees, and 
officers with a clear and practical rule. 
In striking down that Rule, the District 
Court established a confusing rule, which 
is primarily concerned with protecting



resisting arrestees. It is universally 
recognized that the resisted arrest 
situation creates a risk to life and 
limb; why should officers and society 
assume that risk rather than the felon 
who creates it? The District Court 
established a rule which creates doubt 
and confusion in life threatening 
situations. This Honorable Court ought 
to act now to establish a workable rule 
governing the use of deadly force in 
arrests.

REPLY ARGUMENT
I.

THE IMPACT OP GARNER ON THIS CASE

This Honorable Court clearly has 
jurisdiction to entertain the instant 
Petition. 28U.S.C. 1254(1). The issue 
here is: Should the Court exercise its
jurisdiction?



As pointed out in the Petition, this 
case meets all of the criteria for the 
granting of the writ prior to final 
judgment in the Court of Appeals. Peti­
tion, pages 21-27* However, the most 
important consideration in the Petiton- 
ers’ opinion and apparently also that of 
the Respondent, is the pendency of 
Tennessee v. G-arner (No. 83-1035) and 
Memphis Police Department v. G-arner (No. 
83-1070) in this Honorable Court. The 
Respondent argues that Garner is of 
little significance in this case. Yet, 
the Respondent took the exact opposite 
position in his motion to stay in the 
Court of Appeals. Appendix "E" to the 
Petition. The first sentence of each 
paragraph of Respondent’s motion clearly 
demonstrates the importance of Garner to 
this case.



"1 . The G-arner litigation, 
pending in the TJ. S. Supreme 
Court, presents an issue which 
controls the disposition of
this case---" (Appendix "E",
p. 29; emphasis supplied).
"2. The decision of the 
district court challenged in 
the instant case rests on the 
same legal proposition at issue 
in Garner (Appendix "E" ,
p. 30; emphasis supplied).
"3. Because the outcome of 
Garner will have a profound 
impact on the law that controls 
this case, plaintiff submits 
that it would be appropriate 
for this Court to stay the 
instant appeal until a decision
is issued in Garner___"
(Appendix "E", p. 32-33).

Having so argued in the Court of Appeals, 
how can the Respondent argue the opposite 
way in this Court? It seems that the 
Respondent’s primary interest is in 
preventing the People of Alabama from 
defending their statute anywhere.

The Respondent asked the District 
Court to declare the Statute unconstitu­
tional. The District Court did so and on



that basis and that basis alone, granted 
summary judgment for the Respondent 
against Officer Kidd and the City on the 
issue of liability. Now, the Respondent 
argues:

"...’[P]ew propositions are 
better established than that 
constitutional adjudication 
should be avoided whenever 
possible.' Life Insurance Co. 
of North America v. Reichardt,
591 P.2d 499, 506 (9th Cir.,
1979)*•••" (Respondent's 
Brief, p. 19)-

This is good law, but it is a principle 
the Respondent should have embraced in 
the District Court. The Alabama statute 
should not have been declared unconstitu­
tional, but it was at the insistance of 
the Respondent. Section 13A-5-27 Code of 
Alabama, 1975> has been in constitutional 
limbo since Ayler v. Hopper (532 P.Supp. 
198 [m.D.Ala., 1981]) (See the Petition, 
pp. 4-7), and this has been through no 
fault of the People or Officers of the



state of Alabama. At the present time, 
Alabama officers have no clear law to 
guide them in the use of deadly force in 
making arrests, and this untenable 
situation will prevail until this 
Honorable Court either upholds the 
Statute or provides a clear and workable 
alternative.

IT IS IMPERATIVE THAT THE 
CONFUSION CREATED BY THE DISTRICT 

COURT BE RESOLVED
The Respondent argues that a 

resolution of the constitutionality of 
Section 15A-3-27 is not imperative, since 
the District Court allegedly gave Alabama 
officers a workable alternative role. It 
is interesting to notice that in making 
this argument, the Respondent "cleans up" 
the District Court’s Rule considerably. 
Respondent’s Brief, p.34*

7



The Rule of the District Court in 
the instant case would allow the use of 
deadly force only "...to prevent 
imminent, or at least a substantial 
likelihood of death, or great bodily 
harm...." Ayler v. Hopper, 532 P.Supp. 
198, 201 (M.D.Ala., 1981); Petition, 
Appendix "A", pages 6-7« What exactly is 
"a substantial likelihood of death or 
great bodily harm...."? An unarmed, 
youthful, 220 lb., six feet tall 
resisting arrestee could no doubt pose 
"...a substantial likelihood of death or 
great bodily harm..." to a diminutive or 
elderly police officer but would pose 
little such likelihood to his or her more 
burly colleague. Of course, the size, 
age and state of health, of a resisting 
arrestee is usually impossible to judge 
at the time. Would such a rule allow an 
officer to use deadly force to stop a

8



mass murderer or an escapee from death 
row, who presented no imminent danger to 
anyone? Maybe, but probably not.

The Respondent argues that the Rule 
established by the District Court does 
not call for hindsight review. This 
assertion is made in the face of the fact 
that the District Court applied its Rule 
and granted judgment for the Respondent 
on the basis of numerous facts (e.g. the 
Respondent’s being unarmed; the fact that 
no burglary had occurred), which were 
unknown and unknowable to the officer 
when he acted.

If the Rule established by the 
District Court on June 12, 1984 
(Petition, Appendix "A", pp. 1-11) was 
difficult to apply, it was made 
impossible by the amendment of July 26, 
1984. (Petition, Appendix "A", pp. 
12-13)* This amendment concludes:



"...Although Kidd testified 
that he initially feared an 
attack from Pruitt, his deposi­
tion testimony repeatedly 
indicates that Kidd’s own 
subjective concern was for 
effecting Pruitt’s arrest, and 
not for his own or another's 
safety...." (Appendix "A", 
page 13f emphasis supplied).

In the District Court's view, Kidd was
unjustified in using deadly force,
because his "heart was in the wrong
place."

The District Court’s Rule is utterly 
unworkable. As with all of the rules 
advanced in the place of the Common Law 
Rule, the justification for the use of 
deadly force is to an undefined degree 
subjective and is a function of numerous 
factors which would normally be 
impossible for the officer to judge at 
the time. The rules advanced in the 
place of the Common Law Rule are designed 
to guide courts in after-the-fact review

10



of officers’ actions. They are entirely 
impractical in guiding officers at the 
time of the action.

The Common Law Rule, on the other 
hand, has for centuries provided officers 
with clear and easily applied guidance in 
resisted arrest situations. The Common 
Law Rule looks to objective factors, such 
as the legality of the arrest, the nature 
of the crime and the necessity of the 
force. In order to make a lawful arrest, 
an officer must have a warrant or pro­
bable cause to believe that the arrestee 
has committed some crime. Distinguishing 
between felonys and misdemeanors is a 
simple matter of familiarity with the 
criminal code. Determing the force 
necessary to effect an arrest is a simple 
matter of gradually escalating the force 
until the arrest is complete. Just as

1 1



officers can, under the Common Law Rule, 
know quickly and clearly what their 
duties and immunities are, so can an 
arrestee ascertain the risk he would he 
running should he choose to resist.

As stated in the Petition, the 
Common Law Rule always comes before the 
Courts in worst case senarios. It is, 
therefore, not surprising that the 
controversary over the Common Law Rule is 
grounded primarily on sympathy. The 
critics of the rule sympathize with 
resisting arresteesj their concern for 
society and police officers arises as 
almost as an afterthought. For example, 
these critics would bar an officer from 
using his or her firearm, unless the 
resisting arrestee is armed. Yet, in 
most of the situations where the problem 
arises, a muzzel-flash in the dark may be 
the first and perhaps the last, indica-

12



tion an officer has that a resisting 
arrestee is armed. The Common Law Rule, 
on the other hand, reflects balanced 
concern for society, the arrestee and the 
officer: Society is assured that if
there is any way that the officer can 
effect a lawful felony arrest, he or she 
will do so. The arrestee can fully 
protect himself from both deadly and 
non-deadly force by obeying the law and 
submitting to lawful arrest. Finally, 
the Common Law Rule minimizes the risk 
run by an officer who must pursue an 
unknown lawbreaker, who may or may not be 
dangerous to the officer and who may or 
may not be armed.

The danger inherent in any resisted 
arrest situation is universally 
recognized. The District Court, in 
common with others who condemn the Common 
Law Rule, would allow the resisting

13



arrestee the first move toward deadly 
force. Given that the resisted arrest 
situation creates danger to life and 
limb, why should officers and society 
assume that risk, rather than the felons 
who unlawfully create it?

In this case the District Court 
struck down a ancient rule which for 
centuries has promoted safety, the law 
and justice. In the place of this sound 
and practical rule, the District Court 
created confusion and doubt in life 
threatening situations. This untenable 
state of affairs will continue until this 
Honorable Court acts. It is imperative 
that the Alabama statute be either upheld 
or replaced with a practical rule, and 
only this Court can do that authorita­
tively.

14



CONCLUSION
In conclusion, the Petitioners 

point out that this proceeding may as, a 
practical matter, he the only opportunity 
the People of Alabama have to defend 
their Statute. For this reason and those 
stated in their Petition, the Petitioners 
pray that this Honorable Court grant 
their petition.

Respectfully submitted.

ATTORNEY GENERAL

: L. MARSTON III 
TANT ATTORNEY GENERAL

ATTORNEYS FOR PETITIONERS

15



CERTIFICATE OF SERVICE 
I, Joseph C. L. Marston III, an 

Assistant Attorney General of Alabama, a 
member of the Bar of the Supreme Court of 
the United States and one of the 
Attorneys for Charles A. Graddick, 
Attorney General and the State of 
Alabama, Petitioners, do hereby certify 
that on this of December, 1984, I
did serve the requisite number of copies 
of the foregoing on the Attorneys for all 
of the other parties in the Court of 
Appeals, by mailing the same to them 
first-class postage prepaid and addressed 
as follows:

Honorable Robert C. Black 
Attorney at Law 
P. 0. Box 1 16
Montgomery, Alabama 36195-2401
Honorable N. Gunter Guy 
Attorney at Law 
City of Montgomery 
P. 0. Box 1111 
Montgomery, Alabama 36192

16



Honorable 
Honorable 
Honorable 
Attorneys 
P. 0. Box

Ira B. 
Dennis 
Morris 
at Law 
2087

Burnin & 
Charles Sweet 
S. Dees

III

Montgomery, Alabama 36102-2087

ANT ATTORNEY GENERAL

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

17





a .  V  * 7  .  ^

r.o

rit:

s '• s s-w6» -i-W

Ss7 .,

>"■

^ ^ * YS.'* I

-li* '■V’A' H

6t.

-  *>



1





I

■ '-.-H