Patrol Guide; Guidelines on Deadly Force; Legal Research on Justification and Landrum v. Moats

    PATROL GUIDE N.*

GENERAL REGULATIONS

DATE ISSUEO OATE EFFECTIVE

11-5-76 11-15-76
REVISION NUMBER PAGE

76-7

104-1

6 of 6

COURTESIES
(c o n t in u e d )

a.

b.

6. , Remove hat and stand at attention in office of Police
Commissioner, deputy commissioner or member above raiik 
of lieutenant.

7. Order “Attention” when member above rank of captain 
enters room unless otherwise directed.

8. Place U.S. flag at half-mast as indicated below, when a 
member of the service dies;

Lieutenant, sergeant, police officer — on department 
building where assigned on day of funeral.
Captain — on department building where assigned 
from time of death to sunset, day of funeral.
Deputy inspectors or inspectors — on deptu’tment 
buildings within his command from time of death to 
sunset, day of funeral; flag at Police Headquarters will 
fly at half-staff on day of funeral.
Member killed in line of duty — on department 
building where member assigned from time of death to 
ten days after death; flag will fly at half-mast on all 
department buildings on day of the funeral.
Other members. Police Commissioner or a deputy 
commissioner — as directed by the Police 
Commissioner or Chief of Operations.

d.

e.

USE O F  
F IR E A R M S

In addition to Penal Law restrictions on the u.se of deadly physical 
force (See Article 35.00, P.L.), members of the service will adhere 
to the following guidelines concerning the use of firearms:

1. Use all reasonable means before utilizing firearm when 
effecting arrest for or preventing or terminating, a 
felony or defending self or another.

2. Do not fire warning shots.
3. Do not discharge firearm to summon assistance, 

except when safety is endangered.
4. Do not discharge firearm from or at moving vehicle 

unless occupants are using deadly physical force 
against officer or another, by means other than 
vehicle.

5. Do not di.scharge firearm at dogs or other animals 
unless there is no other way to bring animal under 
control.

6. Do not discharge firearm if innocent persons may lie 
endangered.

NOTE The above guidelines are not meant to restrict a member in the 
performance of his lawful duty, but are intendr'd to reduce 
shooting incidents and consequently protect life and property. In 
every’ case, department policy recjuires only the minimum amount 
of force be used consistent with the accomplisliment of the 
mission.

NEW YORK CITY POLICE DEPARTMENT



INCIDENTS OF FIREARM DISCHARGES BY POLICE OFFICERS 1973-1979
. - /-• J '■ .. a' r . . ; / . ■ ’ ■ . ,

: k s 7 ^ ' . ' ■■'

' ••'■'- ' ^ j r d a t e - ' ' '

: '.r-.



. m L .

VjgjiliipjUitmerits accountable. It's -a complex business 
and they should do more. We need to do a lot more 

" rfesearch in order to be able tq do that well.
I don't think it's ever proper for the mayor to say,

"I met sergeant so-and so at a meeting last night 
and he impressed me a lot. I think he should be 
assigned to this unit or that uni^" 1 think that's the 
kind of interference that's improper.

Q: Many cities have been forced to cut back their 
police budgets and lay off employees. How do you 
think city-officials can ensure adequate police 
protection with less money? ,

I think’ every effort must be made to get more 
out. of. existing resources, that I's, to make the 
departments more productive- And I believe very 
strongly that there's room for improved produc-

■ tivity in most police departments in the United 
States. What I'm saying, in effect, is that there are 
many departments that could suffer a loss of 2 
percent or 3 percent or maybe 5 percent, but, by

impmvaments.'cduld make up foe that
■ loss.‘I tfiihk that's what the cities have to face up to: 

to analyze whether their departments have any 
wastp or fat in them and to determine how to make

. them more-effective.
' '

^ Q ;  The National League of Cities and the Police 
Executive Research,Forum conducted a joint study 

.of police collective bargaining agreements. One 
• conclifsion was; that both city-officials and police 
"executives have.often bargained away manage- 

.. ,ment rights crucial for effective police services.
‘ What suggestions do you have for city officials as 

they attempt  ̂ to negotiate with increasingly 
tnilitant police unions?

> A:- 1 think the 'people responsible for the
negotiating, and the people responsible for making 
the hard decisions about money and benefits should 
devo.te as much time as they possibly can to 
improving their own knowledge of issues. I think 

■̂ that includes the mayor and city manager to some , 
extent, but, to a much greater extent, it applies to 

.the lalxjr relations negotiator, the police chief, the
■ personnel department and the people in the police 
department who negotiate particular issues.
. ■ SKCmd, 1 think the cities have been penny-wise 
and poUnd-foolish in not having the legal and labor 
relations expertise on their side of the bargaining 
tablO.'The unions have been able to afford very 
expensive labor lawyers and if the city doesn't have 
the: same strength, it will be at a’disadvantage. To 
me;>it heast, it is quite clear that this has been the 
case in many cities and that many management 
prerogatives have been negotiated away,

Q; We think that one of the most valuable 
services that NLC has been able, to offer through 
Police Foundation funding is the special Consulta­
tion Service on Policing. Could you comment on 
why you thought it was important to establish 
such a service and the contribution that the service 
can make to city officials? . • ‘

A: T think this kind of service can be uniquely 
■val.uable»r'bccauM ,L, seetit. involving both police

Sec p, 6# coLl

Guidelines on 
Deadly Force

by Quinn Tamm 
The use of deadly force 
by police came up again 
as an issue at the annual 
conference of the Inter­
national Association of 
Chiefs of Police (lACP) 
in September when the 
National Organization 
of Black Law Enforce­
ment Executives (NO­
BLE) su b m itted  a 
resolution about it.

Although the resolutions committee.,
^^recommended its adoption, it was defeated two to 

one at a business session.
The resolution called for the promulgation of 

clear and uncomplicated firearms policies by police 
departments and other law enforcement agencies. 
It said such p>olicies should be based on the principle 
that no officer's weapons should be discharged 
except in the defense of life and would have 
required police departments to insure proper 
investigations once deadly force has been used.

I cannot stress too much how pressing the 
problem of police use of deadly force has become. 
The National Center for Health Statistics of the 
U.S. Public Health Service tells us that between 
1968 and 1976, law enforcement officers killed 
3,082 civilians. Since 1970, American police have 
killed, on the average, one person a day. Of these, at 
least 50 percent have been nonwhite.

Even if a police executive or a mayor is not 
concerned with the moral issues involved in this 
problem, he or she certainly must be aware of some 
of the practical ones. Better police relations with 
minority communities are certainly not fostered 
when deadly force is used so much more frequently 
against the members of those communities. 
Another practical aspect is money. Cities and their 
police departments have increasingly become the 
targets of liability suits as a result of police use of 
excessive force, and defending against them is 
expensive.

For these reasons alone, the principles put forth 
the NOBLE resolution deserve some verym

serious thought by both city and police officials.
The principles are not totally new. For years, FBI 

policy has permitted an agent to shoot only in self- 
defense or to protect the life of a citizen. In other 
words, the policy eliminated the old "fleeing felon" 
rule, inherited from English common law, that 
exonerates an officer who kills a fleeing suspect 
after calling a warning.

Adopting strict guidelines such as those proposed 
by NOBLE and used by the FBI is advantageous to 
the public, the city government and the police 
department. Having them is a boon to the police

See p. 8, col. 2



Muiphy from p. 6

.xanipl,. I„

interseclioncoMrolforyeMs'hilb"'* °I''7
of sworn police offirP^« I r  
having to m e ^  t h f  Same sUnd^ employees, ‘not 
same high salaries, are d i r e c t  traff "°^ 

ja r  as I know. So it's f
productivity and cost effectiveness

problems city of«cills^*ndju" *hrce major 
should be addressinir in th P°hce executives
. A: I think budget a^d
issue: how to stretch thp^f activity are the first 
Second, I °hink L r  '
management are very mucfTne 
two things under one boarl- ‘̂ êd. Third, I'd put
relations: minority hiTing'^fnT'^ minority -------------------------y Hiring and promotion and

Guidelines from p. 5

use* d t c l^ ? ;r ™ r  ‘T ' "  •»
This /, an awe'om° K ' "  ?'>'>' ‘h* W
thet the person c h a r g e T S  it k i r  “"'l'
«S expected of him or her h i^   ̂ l what
Jhese expectations and knovf tha" his

wha, the officer need, from society, then, i, a

excessive use of force. ‘ ' ■

ma^or^fi^%*'®n‘* the^ *̂ h’ ***̂ ® ^̂ ormdaUonaand a 
communities, what do^vn*^  ̂ public policy' 
contribute to police imnmv hope to
years?  ̂ ovement in the coming

- a *  an"d' ifm a li'°g tm  w ° " : , ^  has
participation by plhce ^^"Ptance and
done research her^at thi /  J "  "^search. We've
our Police Executive Research p ‘° "
Executive Institute, which ^ is ^ T '" ' 
training program, and through "poHcp

^ e t a ^ c T a 'n d ^ t S -n -h i-l'^
need to do more research in their own JpaVtm Vnt7

authorlration bills have b^n
not set a date for their meeting have

K e?n 'ed ;°rM a'ss') S !!' '" 'n ^  Edward
Max Baucus (D-Mont r i o  ^^‘ Aciz.),
^ H e f , ,n ,D - A | a l ‘ i a , , f ,:^ ':d S °:s°g;

6 - t m r  * e  use of
established procedure for inv . *̂ ^̂ ,'"‘ng and an

X L r s r - o F ^ S e t e f H s '^

m a?om  : n r “ l“ f c U ' t ^  1  « T

ec Members Named
S b t f  and

of R e p l S : , ™ " : ; : ' ^ ' > h a  House 
Robert Kastenmeier (D-V\S )' R 7

.u i :S h n ^ 'h b r o o k < R .b h io ) ;a " ° d S '„ ';; 'g ;^



35.27 PENAL LAW

t

Part 1

rliat latter  was peace* officer was 
coMstiimioiial. I’cople v. Lattanzio, 
HiTll. rtic N.Y.S.l’d Itl.'!.

2. Purpose
This section providing: tli.'it a i)cr- 

soM may not use pliysical force* to re*- 
sist ail arrest, whether aiithorizeel or 
iiiiaiitliorize*el, wliicli is tieiiif: effi*cti*cl 
or atti*nipti*el ley a peace offie-e*r whi*ii 
it woiilil re*asonalily ap|M*ar tliat tlu* 
hitti*r is a peace* eitfice*r is elesi);neel 
to preire'e't pliysical safety of averaKC 
citizen as well as that of pi*ace offi- 
e'i*r, anil epiiti* propi*rly ilisconrafics 
alteriatioiis  anil eliniinati*s the* risk 
of injury. I’i*opli* v Sininis. litTl, ;?(! 
A.l).-_'il -J.!. :tl!t N.V.S.'Jil m .

Ity l■nae•lin!: this si-ction proviilin;; 
that a pi*rsoii may not use physical 
fore'i* to ri*sist an arre st whetlii*r an- 
thorizi'il or iiiianthorizeil which is 
hi*iii!r effi'eli-il or atte*nipti*el by a 
pi*ace offii*e*r whi*n it wonlil reasona- 
iily appe ar that latti*r is a iieaee offi- 
l•l*r. le"is|atnre iliil not intenil to ex- 
lianil sniestantive* scope i,f se'otion 

ri'hitiniJ to violation for re- 
sistiiiK arri'st. hut nieri*ly sonjilit to 
take* away from a ilefcnilant cliars;i'il 
with an orfensi* such as assault the* 
ih’fensi* that physii’c.l forie  iiseil was 
jiistifii'il iineli*r circnnistanci*s hecansc 
attenipti'il arr i’st which h'll to assault 
was iinauthoriziil. l ‘e*opli* v. I,yke, 
lit?;?. 7*J Misc.L’il 1040, ;!40 N.Y.S.‘Jil 
;Cm.

3. Generally
This si'ciion proviilinR that a i>er 

son may not use iihysical force to re­
sist ail arrest, whether aulhorizeel or 
iinautliorizeil, which is heiiu: effeeteil 
or atti'iiipteil by a fieace offi(*i*r when 
it wouhl reasonably appi*ar that the 
latter is a jieace offie?er iloes not cre­
ate a new substantive crime*. People 
V. Simms, 1!I71, .30 A.D.2 il 2.3, .310 N. 
Y.S.LM 144.

This si*ctioii lerohibitiii); the use of 
jiliysical force in resistitiK an arrest, 
whi*ther aiithorizeel or unauthorized

is nothiiiK more than a liinitalion 
upon the invocalioii of trailitional 
sclf-ili'feiise exemption where polie*i* 
offici*rs are* involvi*il anil iloi*s not 
make* it unlawful to resist an iinan- 
thorizi*il arrest. l ’i*o[ili* v. Aili*y, 
1074. 70 Misc.-Jil ."..SO, .3.31) N.Y.S.2,1 
0.S1.

4. Elements of offense
Authorization for arrest is an in­

dispensable elemi*iit of offi*nsi* of n-- 
sislinu' arrest. Pi'oiile v. Alley. 1074. 
70 Mi.sc.2 il .">.Si), .3.-.0 N.Y.S.2d O.Sl.

5. Physical force within section
'I’liis si'ction which was inti*iiiliil 

mcri l.v to pri*vi*nt l•omhat arisiiiK out 
of a elispiiti* ovi*r valiility of an ar- 
ri*st iloe*s not pri'vent an indiviiliial 
from protectinc himself from an iiii- 
ju st i f i i ’il bi*atins by the* polii*e. Peo­
ple* V. Sauza, 1071, .37 A.I).2 il 0.32, 323 
N.Y.S.2d 0.32.

6. Instructions
.Jury shoulil have been chari;e*il on 

the* ile*fensi* of justification in |irosc- 
cution for ri*si.stin!; arrest, where* evi- 
di*nce i.eliliiceil at trial permitted in- 
fi*ri*nci* that eli*fendant was the vic­
tim of an unprovokeil poliee assault 
or the* use* of exce*ssive physical force* 
to effectiuite an arrest. Peoide* v. 
Sauza. 1071, .37 A.I),2d 032, .323 N.Y. 
S.2d 032.

This  se*ctioii proviillnit that a pi*r 
son may not use physical force to re­
sist an arri*st whether authorizi*il or 
unauthorizeil which Is lK*iiic effecti*il 
or attempted by a peace officer whe*n 
it would reasonably appear that hit 
ter is a peace offievr was impropi*rly 
included within charRe concernlnK an 
alli*);ed violation of section 20.3,30 
povernint; misdemeanor offense of re- 
sistinp arri*st inasmuch ns it  niisli*il 
jury  into expaniliiiK substantive* 
scope* of tills section. Peoiili* v. 
Lyke, 1073, 72 Misc.2d 1040, 340 N.Y. 
S.2d .3.37,

tt*'

Part 1 JUSTIFICATION § 35.30

112
•;? .•

§ 35.30 Justification; use of physical force in making an 

arrest or in preventing an escape

1 A peace officer, in the course of effecting or attempting 
to effect an arrest, or of preventing or attempting to prevent the 
escape from custody, of a person whom he reasonably believes to 
have committed an offense, may use physical force when and to 
the extent he reasonably believes such to be necessary to etiect 
the arrest, or to prevent the escape from custody, or to defend 
himself or a third person from what he reasonably believes to be 
the use or imminent use of physical force; except that he may 
use deadly physical force for such purposes only when he reason­
ably believes th a t :

(a ) The offense committed by such person w as;
(i) a felony or an attempt to commit a felony in­

volving the use or attempted use or threatened imminent 
use of physical force against a person; or

(ii) kidnapping, arson, escape in the first degiee, 
burglary in the first degree or any attempt to commit 
such a crime; or

(b) The offense committed or attempted by such person 
was a felony and that, in the course of resisting arrest 
therefor or attempting to escape from custody, such person 
is armed with a firearm  or deadly weapon; or

(c) Regardless of the particular offense which is the sub­
ject of the arrest or attempted escape, the use of deadly 
physical force is necessary to defend the peace officer or 
another person from what the officer reasonably believes 
to be the use or imminent use of deadly physical force.

2. The fact that a peace officer is justified in using deadly 
physical force under circumstances prescribed in paragraphs (a) 
and (b) of subdivision one does not constitute justification for 
reckless conduct by such peace officer amounting to an offense 
against or with respect to innocent persons whom he is not seek­
ing to arrest or retain in custody.

3 A person who has been directed by a peace officer to as­
sist such peace officer to effect an arrest or to prevent an escape 
from custody may use physical force, other than deadly physical 
force, when and to the extent that he reasonably believes such to 
be necessary to carry  out such peace officer’s direction, unless 

39  McKinney 55 1 .0 0 -1 3 9 .— 13 113



§ 35.30 PENAL LAW Part 1

he knows that the arrest or prospective arrest is not or was not 
authorized and he may use deadly physical force under such cir­
cumstances when:

(a) He reasonably believes such to be necessary to defend 
himself or a third person from what he reasonably believes 
to be the use or imminent use of deadly physical force; or

(b) He is directed or authorized by such peace officer to 
use deadly physical force unless he knows that the peace of­
ficer himself is not authorized to use deadly physical force 
under the circumstances.

4. A private person acting on his own account may use phys­
ical force, other than deadly physical foi'ce, upon another person 
w'hen and to the extent that he reasonably believes such to be 
necessary to effect an arrest or to prevent the escape from cus­
tody of a person whom he reasonably believes to have committed 
an offense and who in fact has committed such offense; and he 
may use deadly physical force for such purpose when he reason­
ably believes such to be necessary to:

(a) Defend himself or a third person from what he rea­
sonably believes to be the use or imminent use of deadly 
physical force; or

(b) Effect the arrest of a person who has committed 
murder, manslaughter in the first degree, robbery, forcible 
rape or forcible sodomy and who is in immediate flight 
therefrom.

5. A guard or peace officer who is charged with the duty of 
guarding prisoners or an employee of the drug abuse control 
commission who is charged with the duty of securing the custo­
dy of a certified drug dependent person or a narcotic addict re­
quired to undergo a period of inpatient treatment as a condition 
of probation or a detained alleged drug dependent person in a 
detention facility, as that term is defined in section 205.00, or 
w'hilfe in transit to or from a detention facility, may use physical 
force when and to the extent that he reasonably believes such to 
be necessary to prevent the escape of a prisoner or a certified 
drug dependent person or a narcotic addict required to undergo 
a period of inpatient treatment as a condition of probation or a 
detained alleged drug dependent person from a detention facility 
or from custody while in transit thereto or therefrom.
Added L.1968, c. 73, § 8 ; amended L.1972, c. 598, § 1; L.1973, c. 676, 
§ 27.

114

JUSTIFICATION

H istor ica l  Note

35.30

2 '
%

A'*
t

1973 Amendment. Rutid. T,.197.3.
P 670 § 27, eff. Sept. 1, 197.3, siibRti- 
tuted' “'oniployeo of the drop nboso 
control commission who is rlmrpcd 
with the dut.v of spcnrinp the custod> 
of n certified drop dependent person 
or a narcotic addict reipnred to nn- 
der-’o a period of inpatient treat­
ment as a condition of prol.ation or a 

' detained alleped drop dependent per- 
son" for "employee of th(' <lrnp abuse 
control commission "h o  is charped 
with the dtity of seenrinp the custody 
of a ccrtifieii or detained alleped nar­
cotic addict" and “a certified drup 
dependent person or a narcotic addict 

'  required to nnderpo a period of inpa­
tient treatment as a condition of pro­
bation or a detained alleped drop de-

person" for “a certified or 
detaineii alleped narcotic addict.

1972 Amendment. Solid, n. 1.1972.
c. ri9.S, § 1. *'**̂ *’ '
Mav 24, 1972. inserted "or an em­
ployee of the narcotic coidrol com­
mission who is charped witli tlie dut.v 
of seenrinp the custody of a certified 
or detained alleped narcotic addict 
and “or a certified or detained al- 
leped narcotic addict."

Derivation. Former section 3.'i..30, 
added 11.190.'., c. 1030. and rei.ealed by 
L.19tVS. c. 73. S 8. Said 
tion :r>..30. was from Penal I .a "  130. , 
55 246. 103.'). for history, see 5 •l-'.io 
note al)Ove.

*4 • y

.̂3

rj*:

Practice Commentaries
by Arnold D. Hechtman

This section deals with the questions of when and how

categories o p  ̂ are; peace officers in geneial
r r r  the . f  ,«ace
officers (subd 3 ) ;  private persons acting on their o " "  »c 
f u S  ( s u S  4) I and" .uards and other ^
orisons and other detention facilities (subd. )■
Tear foHovvdng its coming into effect, the section 
restructured and reformulated in several ^ ^ ^ s ta n ^   ̂

t rr iQ6« c 73) The most important subsia 
r n « e ,  S e d  t the use of physical force h , peace oft c e „  

a " r y  arrests and preventing escape, from «s V, 
particularly expanding
officer’s permissible use of deadly physical force.

Peace officers in general (subda. 1, 2)
The chief proposition postulated by subdivision 1 is, 

in subsin^e, t L t \  peace officer having - s o n a b l e ^  
believe that a person has committed an 
mav in order to arrest him, use as much physical force, short 
of the deadly variety, as he reasonably believes necessary 
to effect the arrest. While the former ^  §

.n o  provision expressly dealing is
c246 [1 ] ) .  and while the case law relating to the matter

115



§ 35.30 PENAL LAW Part 1 P art 1 JUSTIFICATION § 35.30

rather sparse, approximately the same principle seems to 
have been followed by the Court of Claims in disposing of 
death and personal in jurj' actions against the state based 
upon alleged negligence of, and improper conduct by, peace 
officers in apprehending offenders (Fletcher v. State, 1959, 
15 Misc.2d 1014, 1017, 183 N.Y.S.2d 265, affirmed 9 A.D,2d 
862, 194 N.'i.S.2d 456; Houghtaling v. State, 1958, 11 
Misc.2d 1049, 10,54-1055, 175 N.Y.S.2d 659; Lippert v. 
State, 1955, 207 Mi.sc. 632, 636, 139 N.Y.S.2d 751).

With respect to the use of deadly physical force, however, 
the problems are more intricate and controversial. The 
lesser difficulty involves the use of deadly physical force 
when the peace officer reasonably believes such to be neces­
sary to defend himself or another from what he reasonably 
belie\es to be the use or imminent use of deadly force by the 
arrestee (subd. ( I c ) ) .

The greatest difficulties arise in situations where there 
may be no danger to the officer or anyone else but the 
officer simply cannot catch the arrestee without using 
deadly force (ordinarily his revolver). Here, the deadly 
force authorization is made to rest upon the kind of offense 
which is. or is reasonably believed to be, the subject of the 
arrest. The old Penal Law required merely that it be a 
felony ( § 105.5 [3 ] ) .  The original Revised Penal Law section 
required that it be “a felony involving the use or threatened 
use of deadly physical force” (original § 35.30 [2 b ]).

The latter provision was intended to exclude non-violent 
felonies fe. g. forgery, car theft) but to preserve the of­
ficer's right to use his revolver for apprehension of persons 
reasonably believed to have committed felonies of a violent 
and physically dangerous nature, such as homicide, robberj' 
and forcible rape. It  was criticized, however, as being too 
narrow and imprecise for the purpose. One contention 
advanced was that some robberies (e. g. muggings) and some 
forcible lapes may not involve either the use or threatened 
use of deadly physical force,” and that in any event it is 
unfair to saddle the police with the difficult burden of deter­
mining when the force used in any given case was of a 
“deadly” nature.

Out of these considerations, the provision was changed to 
authorize deadly force by the officer in apprehending for 
any felony or felony attempt involving the actual, attempted 
or threatened use of any physical force, whether of a deadly 
nature or-otherwise (§ 35.30 [ la i ] ) .  This clearly covers, 
inter alia, every conceivable robbery and forcible rape.

116

I"

In addition, moreover, four specific felonies— kidnapping, 
arson, first degree escape and firs t degree burglary are 
explicitly placed in the same category (id. [ la i i ] ) .  The 
reason for this is that those crimes, which do not neces­
sarily involve the use of any physical force at all and, 
hence, are not necessarily covered by the previous clause, 
are nevertheless of such a serious and dangerous character 
as to merit the use of deadly force by the police in their 
efforts to apprehend the perpetrators.

Another situation justifying deadly force by peace officers, 
for arrest purposes involves the armed fleeing felon. The 
original section permitted deadly force by the officer to 
arrest any felon, regardless of the kind of felony committed, 
“attempting to escape by the use o f  a deadly weapon”. This 
was of limited application or utility in that virtually all 
such cases would apparently be covered by the above treated 
provision justifying deadly force by the officer to defend 
against threatened or imminent deadly force by the arrestee 
(§ 35.30 [ I c ] ) .  WTiat was not covered was the situation in 
which the pursuing officer knows or has good reason to 
believe that the fleeing felon, though not brandishing or 
using a deadly weapon at the moment, has a gun or knife in 
his pocket which he may well use on the verge of capture. 
With this in mind, the amended provision (subd. lb ) expands 
the original one by authorizing deadly force by the officer 
where necessary upon a reasonable belief merely that the 
felon “is armed with a firearm or deadly weapon,” regardless 
of whether he is presently using it.

Subdivision 2, which is new (cf. A.L.I. Model Penal Code 
§ 3.07 [2 b iii]) , is aimed at protection of innocent bystanders 
from police action which, though in the line of duty, is 
performed recklessly or negligently. The application of the 
provision may be illustrated by considering the case of a 
police officer pursuing through a crowded business area 
of a city a man who has committed an armed robbeiy. 
While the officer has a general right to shoot him in order 
to effect the arrest, that right is qualified and superseded 
by his duty to avoid injuring innocent persons by reckless 
or criminally negligent use of his pistol. I f  he both inten­
tionally shoots the robber and recklessly kills a bystander, 
the fact that he was authorized to do the former does not 
justify  the latter. On the other hand, his justification for 
shooting the robber is not negated by his reckless shooting 
of the bystander.

117



1320
4  ■

Ap,)ollant,s further ar^̂ uo lhai ihe slau. 
'T.eru concorninjr

i-acUhat

test ifiv('/i lo I < i ^

H i r r a c r t h ' , ' " “  '" '" *  '" " k I'I '•I'that LoisinK^T lcslifu.,1 „, ,rreai

u I : :  ‘“ '"■”  ........... ...........caused the gram shortage.

The refusal u, grant a mistrial or give a 
c ^ o n a r y  mstrucUon was not projmheial

Thepe being no merit in any of t|„. appel- 
lanU^iarguments. the eonv,et,ons are 'af-

■̂ 7« FKDEKa l  r e p o r t e r , 2d SERIES

L̂’at: ( 1) ,U u n U n  had standing to 
I'fosee-ute the action- I9\ fl. ,

the complaint,

S "fTftlJUSfRSrSKMN
I T _____ X

"■'« of Ih . hslaie
rum. Deceased, Appellant,

John MOATS and Robert J. 
Rockwell, Appellees.

No. 77-1656.

though vaeue si - . t . i '  complaint,
ficienl t of action suf-

en to confer juri.sdiction; (3) the Ne-
aska ,s atute pertaining to the use of

o f f i c U "  (T) to ,a)lice
police officers exer

ther o f k ./ f ^ d ie v tZ
-hich they .sought to arrest t h r ^ s p i "

orr "  t t t " " T ' ' ' ' ‘-" ‘̂-'"‘-'‘' useofdea.ily CC th.,t a substantial risk existed that 
he suspect would cause death or serio l 
o 'l y harm if his apprehension were de 

‘ayod; (.5) the officers were entit J  to

t  '>‘-‘' ‘cT .n the propriety of their

lief-' "(tinh 7 7 ' " “*''''''"c l, (b) I he defense of good faith w.

fa.th

“ 7 “ " ..... ■

r „ :7 r i r ;r

'Reversed and remanded.

United Slates Court of Appeal 
Eighth Circuit.

Submitted ,Jan. 11, 1'.17k 
Decided May ;{(), 1P7H

civil

lli« jV ry T a  '*"" 7 ”'' Afternt jury returned a verdict for the police

, r T  n 7  7 ‘' 7 ' - “ "at

J„ .lenied posttrial motions for 
judgment notwithstanding the verdict or

Ti,:
'f ^ '’pcals. Bright, Circuit .Judge,

E federal Courts *=,542

An appellate federal court must satisfy

■d ofTh / - " ' "  f  " " "  butI o of the jurisdiction of the lower court in 
Ihe cause under review.

■i- federal Courts c = 4,‘Jl
Nebraska law fr/tc/.m.. i

7r"™ ‘
lice ocr ^  ugainst city p,,.
■ c officers to recover damages for L

19HS 42 U..S.C.A. §§ 1983,

J. Civil Rights 0=13.6

fite^h'’" 'i 'l  of her son’s es-
, had slan.ling under Nebra.ska law to 

n n ,  civil rights action against city H i^ :  
fleers to recover damages for the shooting 

-•'.■Ih of plaintiff’s son as he fled from the

f f

see
19!-

4.

ter
fac.

5. (

legi
imn
law
.siv.
wa.'

6. (

civi
clai
Sixl
coul
u.se
did
ny
U.S.
C.A.

7. C

wha 
the 1 
exac 
teetc 
of dc 
had 
and 
Fifth 
.4 me:
killei 
the s 
actioi 
jurisi 
Consl

8. Co
1

protei
lakin)
quirei
Amen
14.



scene of a burjjlary.
1988; R.R.S.Nel).1943, § 30

42 U.S.C.A. §§ 1983, 9. Municipal Corporations <fc=188

LANDRUM V . MOATS
Ci(easS76F.2d 1320 (1978)

1321

810.

4. Federal Courts c^32
In order for court to have subject mat­

ter jurisdiction, the pleadin)  ̂ must on its 
face state a co)!;nizal)le claim for relief.

5. Civil Rights «=  13.3(1)
In a civil rights action to redre.ss al­

leged deprivations of rights, p'rivileges or 
immunities secured by the Constitution and 
laws, plaintiff must be able to point to a 
specific, articulable constitutional right that 
was transgressed. 42 U.S.C.A. § 1983.

6. Civil Rights <3=13.12(3)
For pur[)ose of determining whether 

civil rights complaint state<l a cognizable 
claim for relief, each of the Fourth, Fifth, 
Sixth, Eighth and Fourteenth Amendments 
could be plausibly construed to forbid the 
use of deadly force on a fleeing felon who 
did not use violence in committing the felo­
ny and who posed no threat to anyone. 
U.S.C.A.Const. Amends. 4 (i, 8, 14; 42 U.S. 
C.A. § 1983.

7. Civil Rights <5=13.12(4)
Despite fact that c<»mplaint was .some­

what vague in that it di<l not specify either 
the nature of the right allegedly violated or 
exactly which constitutional provision pro­
tected the right, complaint wherein mother 
of decedent asserted that city police officers 
had deprived her son of rights, privileges 
and immunities guaranteed by the Fourth, 
Fifth, Sixth, Eighth and Fourteenth 
Amendments when the officers shot and 
killed |)laintiff’s son while he was fleeing 
the scene of a burglary stated a cause of 
action sufficient to confer subject matter 
jurisdiction. 42 U.S.C.A. § 1983; U.S.C.A. 
Const. Amends. 4 6, 8, 14.

8. Constitutional Law <3=274(2)
The right to life is fundamental and is 

protected against unreasonable or unlawful 
takings by the procedural due process re- 
(|uirements of the Fifth and Fourteenth 
Amendments. U.S.('.A.Const. Amends. 5, 
14.

The Nebraska statute pertaining to the 
use of force in law enforcement iloes apply 
to police officers, notwithstanding fact that 
the .section refers only to “actors” and that 
the statutory definition of “actor" excludes 
law enforcement officers. R.R.S.Neb.1943, 
§§ 28-833 to 28- 843, 28 -839.

10. Municipal Corporations <3=188
Where police officers who pursued and

fatally shot burglary suspect did not believe 
that the crime for which they were seeking 
to arrest the sus|>ect involved the use or 
threatened use of deadly force or that a 
substantial risk existed that the suspect 
would cause death or serious bodily harm if 
his apprehension were delayed, the |)olice 
officers exercised unreasonable force as a 
matter of law, under Nebraska law, in fir­
ing at the sus[)ect as he fled. R.R.S.Neb. 
1943, § 28-839.

11. Civil Rights <3=13.4(2)
Fact that city police officers used ex­

cessive force as a matter of law in connec­
tion with incident that led to death of bur­
glary suspect did not necessarily establish 
that the police officers were liable to the 
suspect’s mother for unreasonable or un­
lawful taking of the suspect’s right to life; 
rather, |)olice officers were entitled to de­
termination whether they acted in good 
faith. 42 U.S.C.A. § 1983.

12. Civil Rights <5=13.8(4)
In actions to obtain damages for civil 

rights violations, jjolice officers are entitled 
to a qualified immunity from liability based 
on good-faith l)clief in the ()ropriety of their 
actions and reasonable groumls for that be­
lief. 42 U.S.C.A. § 1983.

13. Civil Rights <3=13.4(2)
In evaluating [wlice conduct relating to 

an arrest for purpose of determining 
whether the conduct violated the arrestee’s 
civil rights, the court’s guideline is good 
faith and pnibable cause. 42 U.S.C.A. 
§ 1983.

14. Civil Rights <3=13.10
In a.ssessing the |)ropriety of force used 

by the police to effect an arrest, for purpose
1 (



1322 576 FEDKKAL KKPOKTEK. 2d SEKIKS

of delermininj? any liability for civil rijjhls 
violations, |K)licc officers arc entitled to the 
defense of };ood faith, even if their use of 
force turns out to have been illej^al or ex­
cessive, if the officers believed that a cer­
tain amount of force was necessary to make 
an arrest and that use of that amount of 
force was lawful umler the circumstances 
and if the officers had reasonable grounds 
for each of those beliefs. 42 U.S.(3.A.
§ 1983.

15. Civil Rights <®=» 13.10
The defense of good faith is not inaj)- 

plicable to a civil rights action ba.sed on 
excessive force and assault and battery by a 
police officer. 42 U.S.C.A. § 1983.

16. Civil Rights «=  13.10
In civil rights action against city police 

officers wherein decedent’s mother sought 
damages for the shooting death of her son 
as he fled from scene of burglary, the appli­
cation of a gooil-faith defense was not pre­
empted by Nebraska law. 42 U.S.C.A. 
§ 1983; R.R.S.Neb.l943, § 28 841.

17. Civil Rights <3=> 13.5(1), 13.10
The section imposing liability for depri­

vation under color of state law of rights, 
privileges or immunities secured by the 
Constitution and laws provides a federal 
remedy for the redress of wrongs done un­
der the color of state law and, as such, state 
law or the prevailing common-law view is 
not decisive as to the availability of defens­
es; rather, the prevailing common law must 
be considered in light of policies and pur­
poses of the civil rights action to determine 
whether importation of a defense, or allow­
ance of a defense where the common law 
provides none, is appropriate. 42 U.S.C.A. 
§ 1983.

18. Civil Rights <*=13.10
In defending against civil rights action 

to recover damages for the shooting death 
of plaintiff’s son as he fled from .scene of 
burglary, city police officers were entitled 
to rely on provisions of their police manual, 
even though those provisions conflicted 
with the postincident interpretations of 
state law as pronounced by the district 
court. 42 U.S.C.A. § 1983.

19. Civil Rights ‘£^13.14
Hecause good faith is depen<lent on mo­

tivation and conduct of the defendant as 
established at trial, the validity of the de­
fense of g(H)d faith is ordinarily a (juestion 
for the jury, in a civil rights action. 42 
U.S.C.A. § 1983.

‘20. Civil Rights 13.13(1)
In a civil rights action presenting a 

(juestion as to the defendant’s good faith, 
ljurden is on defendant to [)rove each ele­
ment of the good-faith defense to the jury’s 
satisfaction. 42 U.S.C.A. § 1983.

21. Federal Civil Procedure <*=2342
Where verdict in favor of city police 

officers, in civil rights action arising out of 
fatal shooting of burglary sus|)ect, was un­
supported by the evidence and contrary to 
the instructions upon which the case was 
submitted to the jury, plaintiff was entitled 
to a new trial. 42 U.S.C.A. § 1983.

Charles 0 . Forrest, Omaha, Neb., argued 
and on brief, for api>ellant.

Timothy M. Kenny, .Asst. City Atty., 
Omaha, Neb. (argued), and James E. Fel­
lows, Omaha, Neb., on brief, for appellees.

Before BRIGHT, STEPHENSON, and 
HENLEY, Circuit Judges.

BRIGHT, Circuit Judge.
Leslie Landrum, special administratrix of 

the estate of her son, Roy Lee Landrum, 
brought a civil rights action under 42 U.S.C. 
§ 1983 (1970) and a common law tort action 
against Omaha police officers John Moats 
and Rol>ert Rockwell seeking damages for 
the shooting death of her son as he fled 
from the scene of a burglary. The jury 
found for the defendants, and the district 
court denied post-trial motions for judg­
ment notwithstanding the verdict or a new 
trial. Plaintiff then brought this appeal 
as.serting primarily that the district court 
erred in its rulings on these post-trial mo- 
tion.s. In support of the verdict, appellees 
Moats and Rockwell contend that under an

.ippnipna'i
they were 

Based o 
affirm the 
ing judgm 
denying a 
to the disi

I. Facttti 
On Aug 

dispatcher 
.Moats tha 
service si 
Boulevart 
proceeded 
they enU 
they saw- 
exit throi 
the stati( 
debris an 
officers 1 
Rockwell

Landri 
crouched 
cers. Hi 
Officer .1 
while s4ai 
missed, ; 
shouting 
the nort 
they sto: 
as he ra 
most sit 
struck 1 

No wt 
trial, Lko 
no reasi 
threat 1 
’I'he of:l 
force (»ti 
Landrui 
him. li

1. The: 
or off 
whofit* 
s iv t Iv

2. Th<-
IMlhCT
art
a hric 
viiuin



LANDRUM V . MOATS
CUca.'>57<>f .2d 1320 (1978)

1323

appropriate construction of Nebraska law 
they were not lial)le as a matter uf law.

Ibised on our review of the record, we 
affirm the order of the district court d(jny- 
ing judgment n.o.v. We reverse the order 
denying a new trial, however, and remand 
to the district court for a new trial.

I. Factual Background.
On August 15, 1975, at ‘2;<10 a. m., a police 

dispatcher informed officers Rockwell and 
Moats that a burglary was in progress at a 
service station located at 4501 Florence 
Boulevard, Omaha, Nebr:iska. The officers 
l)roceeded immediately to the address. As 
they entered the driveway of the station, 
they saw the decedent, Roy Lee Landrum, 
exit through a window on the north si<le of 
the station, jumping onto some tires and 
debris and then down to the ground. Both 
officers leaped out of the car, and officer 
Rockwell hollered: “Stop, police.”

Landrum a(>parently he:ird the shout and 
crouched down, looking directly at the offi­
cers. He then turned to the east and ran. 
Officer Moats fired a single shot at him 
while standing by the police car. The shot 
missed, and both officers chased Landrum, 
shouting at him to halt, until they reached 
the northeast corner of the station. There 
they stopped and began firing at Landrum 
as he ran away, each firing two shots al­
most simultaneously. One of the bullets 
struck Landrum in the back, killing him.'

No weapons were found on Landrum. At 
trial, lK)th officers testified that they had 
no reason to believe that Landrum was a 
threat to their safety or to anyone else’s. 
The officers justified the use of deadly 
force on the grounds that they believed that 
Landrum would esca|>e unless they shot 
him. In doing so, both relied on a directive

1. The parties all apree that either olficer Moats 
or officer Rockwell fired the fatal shot, hut 
whose bullet killed Landrum was not conclu 
sively established at trial.

2. The issue ol standiiip was not discussed by 
eiiher (>arty. but beiause it is an eli'iiieiil ul llie 
arlu le III requirement ol a ‘ use or controversy 
a briel coniiiieiit is in ortler In priK-eedinps to 
undiiale iivil riphts, 42 U..SC l!lh« (l!)70)

of the Omaha police department, effective 
at the lime of the incident, that among 
other things permitted a police officer to 
use his firearm in the performance of his 
duty to

effect the arrest or capture, or prevent 
the escape or rescue, of a [>erson whom 
the officer knows or has reasonable 
grounds to Ixjlieve has committed a felo­
ny, when all other means have failed.

11. Subject Matter Jurisdiction.
[1] Although neither jiarly has raised 

the jurisdictional issue and the district 
court assumed jurisdiction, it is well settled 
that “|a|n appellate federal court must 
satisfy itself not only of its own jurisdic­
tion, but also of that of the lower courts in 
a cause under review.” Mitchell v. Maurer, 
29.'̂  U.S. 227, 244, 55 S.Cl. 162, 165, 79 L.Ed. 
228 (1924) (f(M)lnole omitted). Therefore, 
we deem it a[)i>roi)riate to discuss the feder­
al jurisdictional basis for this action.

(2, 2 1 Shortly after the death of her son, 
on November 7, 1975, Leslie Landrum filed 
the [ire.senl action in the United Stales Dis­
trict Court for the Eastern District of Ne­
braska.  ̂ In count I of her complaint, she 
contended that officers Moats and Rockwell 
had deprived her son of constitutional 
rights, violations of which are actiomdile 
under 42 II.S.C. § 1982;

Every |>erson who, under color of any 
statute, ordinance, regulation, custom, or 
usage, of any Stale or Territory, subjects, 
or causes to l>e subjected, any citizen of 
the United Stales or other person within 
the jurisdiction thereof to the deprivation 
of any rights, privileges, or immunities 
secured by the Constitution and laws, 
shall l>e liable to the party injured in an 
action at law, suit in equity, or other 
proper proceeding for redress.

authorizes reference to state law for questions 
left unanswered by the applicable federal law. 
Because § 1983 does not mention standing, we 
must turn to Nebraska law in order to as­
certain whether Leslie Landrum, the decedent's 
mother, has standing to prosecute this action 
We hold that she does. .See Neb.Rev.Slat. 
§ :i0 HIO (1975 reissue); i7 Mams v. Schnarr. 
.502 K.2d 588. 593 (8th Cir. 1974).

i ! I



1324

i ■ i:

in

M «' ‘
•f .

Li I

complaint was a pendent 
i.tate^tort claim for assault ami lottery.

In onl.T for the court to have 
|*ul.ject matter juris,liction. the plea,liner

— ^n.a.ie claili
lor rUief. In a section ]<J8;{ action the 
plaintiff must he able to point to a spJcifk 
articulable constitutional rifrht that is’ 
transgressed.

[6] In the present case, |)laintiff-api>el-

ghth and fourteenth amendment rights- 
That the acts of the Defen,lants. John 

Moats and Roinirt J. Ibnikwell. umler col­or of law

y as police officers of the City of Oma­
ha, as hereinabove set out, deprive,! Roy 
Lee Landrum of his rights, privileges an,i

of the United States, by Amendments 4,
. , and 14 of the Constitution of the 

United States, to Plaintiff’s damage in

Sw oS""* 1- an,l $.3,000,- doo.oo punitive damages.
Although the complaint ,li,l not specify ei-

txactly which constitutional provision pro­
tected It and how, each of these amend- 
ments could be plausibly construcl to forbid 
the use of dea,ily force on a fleeing felon

to L y o n t3 -  threat

57fi FEDERAL REPORTER. 2d .SERIES

(1976). C.L.L.Rev. ,361. 3 7 1 8 8

'‘’ 197m 538 F.2d 799 (8th Cir
=o’  T V d T d

. r ~ “ - r

S ’. ; ’’. '
5.

Mattis, age eighteen, and Thomas 

back Window. Schnarr shluted at thê '’, ‘J :

Plaintiff-appellant’s vagueness is .some­
what umlersumlable, for while this court 
'<‘-s ent,Ttai„,.,| s.uular .section 10K3 actions 

I" the ,,a.,i un,l a.s.sume,! subject matter

precise nature of our jurisdictional power 
was vacate,! on procedural groun,!s by the

a-s bimling precedent. Afutt/s v <i..hr,,
M7 F.2d 1007 (8th Cir. 1976) (Maa/s I I / J n  
><ine), vacate,/ as moot sub nom. Ashcroft 

V. Afattes, 431 U.S. 171, 97 S.Ct. 1739 50 
L.Ld.2,1 219 (1977). See a/so MuU/s y 
.Schnarr, 502 F.2d 588 (8th Cir. 1974) (Afattfs 

(Ihree-ju.lge panel). In Matt/s, a case 
with facts nearly identical to this case * this 
court rule,! unconstitutional a Missouri’ stat­
ute that permitted the police to use deadly 
force to apprehend a Heeing felon who has 
used no violence in the commission of the 
felony and who does not threaten the lives 
of either the arresting officers or others

a8.sume,! juris,!,ction by first declaring that 
an indivhlual has a fundamental right ô

againlt protected
g  nst unreasonable or unlawful taking by

the fifth an,! fourteenth amendments. 547 
f.2d at 1017-20. The court declined, h o ^
ever, to find additional constitutional causes 
of actions implicit in the case ba.sed on the

to halt. They ran in different directions 
Schnarr then shouted, •'Halt or rii shoot” 
wo times. When the boys failed to stop 1

Rolf. Meanwhile, Officer Robert Marek who 
^ d  armed on the scene, ran to intercept the 
boys. He collided with Mattis a s h l  
around the comer of the building. BotWel!

S e h
ter h?m M u ran afMarek was losing ground Hp

 ̂ prevent Maths’s es

lh= »s. a  ,h „  s„„, „ „

III

6.

7.
In



I -A M ) IU )M
C ilc Hit 576  f-.̂ L

eighth amendment cruel and unu.sual pun­
ishment clause and the fourteenth atnend- 
melll et)ual protection clause. Id. al KILiO n. 
',iZ.

[7, 8] Des|)ite the vagueness of tiu: com­
plaint in this case, we find that it slates a 
cause of action under section 1988 confer­
ring jurisdiction on this court. In particu­
lar, we readopl the jurisdictional holding in 
Mattis I I :  The right to life is funilamental 
and is protected against unreasonaiile or 
unlawful takings hy the procedural due 
process safeguards of the fifth and four­
teenth amendments. In view of this hold­
ing, we need not consider whether the 
plaintiff Leslie Landrum has also asserted 
cognizahle claims under the fourth, sixth, 
and eighth amendments. We note, loo, 
that the circumstances here are distinguish- 
al)le from MuUis. In Maltis the police offi­
cers relied upon a Missouri statute authoriz­
ing their use of deadly force. Here, as we 
discuss in part III .■\, the Neliraska statute 
in (lueslion restricted the police officers’ 
privilege of using deadly force.*

III. The Profiricly o f  Jud^mcnl ,V. O. V.
As staled above, the parties essentially 

agree on the important facts of the case. 
Officers Moats and Rockwell conceded at 
trial that they had no reason to believe that

6. The holdinn of Maltis II on the merits was 
that statutes that authorize police oftieers to 
use deadly lone anaiiist neeiiin nonviolent fel­
ons are unreasonable per se aiul thus unconsti­
tutional As such. It is not un|ilicaled by this 
case, which is a challenge to the reasonable­
ness of individual police action rather than to a 
lenislative grant of power to use ileadly force 
undei the circumstances. See part III iidnt.

7. Nevertheless, in their brief they argue as fol­
lows:

For while l.andrum brandished no weapons, 
nor physically confronted the Defendants, 
the situation itself represented a threat to 
their personal salely. • • ♦ l l'lhc circum­
stances as a whole— lliglit into a darkened 
night III a black ncighboi hood, concern 
whether the felon was aci onipanied by an 
other party— were factors properly causing 
Delendanis to be apprehensive loi then |>er- 
sonal salety

We re)ect this argument. Landrum was shot in 
the bat k as he lletl. No evident t‘ even suggests 
the presentf ol an at t (iniplitf or ol .iiiv threat 
to ilie otliiers' salety or that ol .tiivont* else.

V. MOATS
It t 3 ZU <I»7H)

the decedent, u burglary suspect, had used 
violence in the contmission of the burglary 
or lltal lie posed a llireal to anyone’s safe­
ty.’ I'oLli leslified llial they shot ;it the 
decetltml to prevent his escape from itrrest. 
For her part, Leslie Lantlrum iloes not dis­
pute the existence of probable cause to ar­
rest her son for a felony.

Given the above facts, Landrum proceed- 
etl under two alternative theories in prose­
cuting her section 1983 claim: (1) the shoot­
ing lieath of her son was a per se unreason­
able taking of her son’s life; or (2) even if 
not per se unreasonable, it was unreason- 
;ible given the circumstances. In addition, 
she argues here lh:it the good faith defense 
normally [irovided police officers in section 
1983 actions against them* was unavailable 
to these defendants because it had been 
expressly jireempled by Nebraska law. We 
consider each of these points separately be­
low.

A.

In support of her conclusion that the use 
of detidly force* against a fleeing, nonviol­
ent felon is per se unreasonable, Leslie 
Ltindrum relies on this court’s interpreta­
tion of the fourteenth amendment due proc­
ess clau.se in Miiltis and section 28-839

8. .See, e. g,, Prociinier v Navarette, 4.i4 U.S.
98 .S.Ct Kri.S, .'■>.9 l..F.d.2d 24 (1978,'; Pier­

son V Pay. .IKIi U..S. .'>47. 87 .S.Ct. 1213, 18 
l. Ld.Zd 288 (19(i7).

9. Deadly force is defined in section 28 833(3) 
of the Reissue of Revised Statutes of Nebraska, 
1943:

Deadly force shall mean force which the ac­
tor uses with the purpose of causing or 
which he knows to create a substantial risk 
of causing death or serious bodily harm. 
Purposely firing a firearm in the direction of 
another person or at a vehicle in which an­
other [lerson is believed to be constitutes 
tleadly force.

10. The following language in Mattis II is partic­
ularly relevant:

The police officer cannot be constitutionally 
vested with the power and authority to kill 
any and all escaping felons, includin.g the 
thief who steals an ear of corn, as well as one 
who kills and ravishes at will For the rea­
sons we have outlined, the officer is required



a *fi

Kt’

1326

SU U .es or Ne-

VVe consi.ler U,, ,uuuU,ry ,.|ai,n f,> . 
S-U oo ,H H,,

H.i<). [Is,. „ r  i.itforcr-

; ; ; r -  <’ > «̂* the provisions .If
- .section nnd of s<s-ti„n 2« Mdl, i|,i. use 

<'f oree upon or toward the person of 
another ,s justifiahle when the actor is
and 'th '"h' in makinf. an arrest
and the actor believes that such force is
.mmediately necessary to effect a lawful

u nd er!!!' J ‘̂ «tifiableunder this section unless;

(a) The actor makes known the pur 
pose of the arrest or believes that it is

^ m Z lT k  '•‘-■â onably

(h) When the arrest is made under a 
arrant, the warrant is vali.l or believe,I 

hy the actor to be valid.

(3) The use of ,lea,lly force is not justi­
fiable under this section unless:

(a) The arrest is for a felony;
(b) Such ,)erson effecting the’ arrest is 

authorized to act as a peace officer or is 
assisting a person whom he believes to be

uthonzed to act as a peace officer;
(c) The actor believes that the force

injury to innocent persons; and
(d) The actor believes that:
(i) The crime for which the arrest is 

made involved conduct including the use 
or th„au=„„d

(II) here is a substantial risk that the 
person to be arrested will cause death „r
- ;^ / - % b a r m i f h i s a p p r e h J ; - : : : :

576 FKDKRAU KFPORTER, 2d SERIES

f lainly one of the prerequisites to t h . .
’ ''[•“"y '^as not met in thi, ,
Neither off..,.r Moats nor R.a.kweU

by sulcsection 3<d)L I 
^hich the arrest w« 

involve.1 the use or threatene.l use of d.
[; ; ‘7 ’r y  a -bstantial risk existed I 
Uic deccslent wouhl cause death or

tT u ' u ^''y • Thus It appears that Nebrask*! 
mu,le the use of dea.ily force against II 

K nonviolent felons unreasonable peri

R o l y i r " ' ^ ’ officers MoaUi
t tn  S ' L T  l'"'^ that the provisions of,

J T '  '■"'yon section 2 8 3of the Nebraska Co<le. which define 
terms used m sections 28-833 to 
including the term “actor.” That I 
nsed in the section 28-839 provision emX 
ctrning use of force in law enfon»m«« 
apparently excludes Nebraska law 601̂ ^ "

subse,|uent jirovisions;
28-833. Terms, defined. As used

text otherwise requires; *

al Judgmenrre"ma,nm "

but to find

unconstitutional m that they

(4) Actor shall mean any person 
uses force in such a manner as to a tte 2 ^

a ffd r r  I ' h  im m unSlffordul him by sections 28-833 to a u f  
, e.vcept any duly authorized law , 

orcement o fficer  o f  the State o f  Vei
7  /'ohffcaf suMivisions •
I Emphasis added.]

[9] As is evident, a direct contradirti.1 
exists between the definition of W

an r  enforcement offiee,! j
and section 28 -^ 9 , which seems to appl^
law enforcement officers although it « f « |  
on y to “actors.” The district 

ilercd that issue and ruled that secti, :

cers or others. ( 5 4 7 T L 7  7 0 2 0 ? / '" *  I
omitted).J 1020 (footnolii-J

11. •̂>ee note 7 supra.

•i-**



LANDRUM V. MOATS
C i l l - 57« l-.2d 1320 ( I 9 7 K)

1327
28 889 (Iocs apply to police officers, relying' 
on the Icfrislalivc history and Icrms of sec­
tion 28 S:!;i lliroiif;li 28 SI!!, which were 
intended to adopt the Model I'eiial Code 
pro\’isions on tlu‘ use of lorce.’-* Uased on 
our review of the same sources,'' we aj^ree 
with the district court.

[101 Under thesi; circumstances plaintiff 
Leslie Landrum established that the jxdice 
officers had exercised unreasonable force as 
a matter of law.

Because we have determined that appel­
lant established the u.se of (.'.scessive force 
as a matter of law, we need not consider 
her second theory of recovery under section 
1983: that if not unreasonable jier se, the 
force used by officers Rockwell and Moats 
was unrea.sonable under the circumstances.

B.

[11, 12] Our rulinjr that officers Rock­
well and Moats used excessive force as a 
matter of law does not necessarily mean 
that ap|)ellant was entitled to a directed 
verdicL at the close of all evidence, thus 
authorizinfr judjjment n. o. v. In .section 
1983 actions for damaf^es, defendants are 
entitled to a (|ualified immunity from liabil­
ity ba.sed on ^ood faith belief in the proprie-

12. The rulin(> came in the (ourt's dcmal ol a 
motion to dismiss hy the police otliccr I he 
trial court wrote in part:

The commentary to .Section :!.()7 ol the 
Model Penal Code clearly indicates that this 
section IS intended to apply to law enlorcc- 
ment officials. .See Model Peiud tiode, tenta­
tive draft 8. 5.S 6.3 (Americtm l aw Institute, 
I9.')8). In addition the specific laiipuape of 
•Section 28 839 which provides in part:

I'he use ol deadly force is not lustiliahle 
under this section unless (b) such
person eflectinn the arrest is authorized to 
act as a peace officer
mandtites the conclusion that this section ap­
plies to law enforcement olliiials notwith­
standing the peneral exemption from .Sec­
tions 28 83.3 to 28 843, contained in the deti- 
nitions.

1.3. In Maids i- Schwirr. .‘547 K.2d 1007, 1013 
(8th Cir. 1976), i.icatcdas moot sub iioiii Ash- 
crolt c M.itds, 131 U S 171. 97 S (  I. 1739, .'52 
I. Kd.2d 219 (1977), we coinnieiued on sei tion 
28 8.39 and khu hided that it represeiitcd

ly of ihcir ticlion.s ;ind rcasonttblc (rrounds 
for Ihal belief. I ’romnior v. ,V;ic.irefle,
i : m II..S, r,r,r>, w  s . a  sr,r,. r>r, L ,K d .2 d 21
(1978); Si hoiior c. lihoilos, 116 II..S. 232, 91 
S.CL. Ki83, 10 L.K(l.2d 90 (1971).

[13, 14] Thu.s, for example, “[w|hen a 
court evaluates police conduct relating to 
an arrest its guideline is ‘good faith and 
probable cau.se.’ ” Scheuer v. Rhodes, su- 
pni, 416 U.S. at 245, 94 S.Ct. at 1691, t/uol- 
inpr Pierson v. Ray, 386 U.S. 547, 557, 87 
S.Ut. 1213, 18 L.Kd.2d 288 (1967). A similar 
guideline must be applied in tissessing the 
propriety of force u.sed by the police to 
effectuiite an tirrest. If police officers (1) 
believe th;tt a certain amount of force is 
necesstiry to make an arrest, (2) believe that 
use of that timount of force is lawful under 
the circumstances, and (3) have rettsonable 
grounds for each of the foregoing beliefs, 
then they are entitled to the defense of 
good faith even if the use of force turns 
out, e.v posl, to have been'illegal or exces­
sive. See Proeunier v. NtiviireUe, supru ; 
W ixhI V. Slrieklnml, 420 U.S. 308, 95 S.Ct. 
992, 43 L.Kd.2d 214 (1975); Seheuer v. 
Rhodes, stipni ; Pierson v. Rny, sui>r;i.

115-17] The defen.se of good faith is not, 
as |)laintiff-ap|>ellant as.serts, inajiplicable 
to an action based on excessive force and

the Model Penal Code approach, which per­
mits the u.se of deadly force only when the 
crime for which the arrest is made involves 
conduct including use or threatened use of 
deadly force or when there is a substantial 
risk that the [lersoii to lie arrested will cause 
death or serious bodily harm if his apprehen­
sion is delayed, (Kootnote omitted.)

14. The paradittm of "reasonable grounds" for a 
ftood faith belief in the propriety of official 
action is reliance on a state statute later de­
clared unconstitutional. See, e. Pierson c. 
Kiiy, :i86 U .S. 547, 5.56 57, 87 S.Ct. 1213, 18 
l..lid.2d 288 (1967). Reliance on less tornial 
state provisions may al.so be reasonable, fi's- 
lin/̂ er v. Thomns. 476 F.2d 225, 229 (4th Cir 
1974) (lonpstandint> custom of the South Caro­
lina Senate); Clnyhrone v. rhompson, 368 
I- -Sup|i. .324 (M 13.Ala. 1973) (standard operat­
ion procedures of |>rison), and in our view po­
lite oMiters may usually rely on standard oper- 
.itinn iirocedures contained m their |xilice ni.iii- 
iials , f.



I

i i |

1328

assault and battery. 
by Nebraska I aw.*®

576 FKDERa L r e p o r t e r , 2d SERIES

Nor is it [)reem|)ted

15. In the instnictum conference at Inal conn 

sTon of an

to In The plaintiff would object
to Instruction No. 11 in that it permits the 
defendants the defense of reasonableness in 
their belief in the valid stale law, and there is 
no question raised by defense counsel a t l y  
time dunnK this trial that the law of the state

date of the incident and I do not feel that the 
defense of reasonable belief is applicable S

■•"ference to the eodd 
faith, the good faith defense is not, in my 
opinion, applicable to a case involving exces 
stve force and assault and battery u Z l .
ctmis  ̂ involving false arrest, mali­
cious prosecution, where the issue of proba-

plaintiffs view pre.sent in this ca.se. There is 
no claim of fal.se arrest, no claim of maliciLs 
prosecution involved. Common law, the de-
fa iT  w '■‘'‘*®°"®'’ ''“"ess, belief, and good 
faith, were not available to the torts of as

Ts Pane Wonroe

The trial judge overruled the objection In this 
appeal, plaintiff-appellant reasserts her obiec

( lb which she claims noted that, at corn-
good fdlth w ’■̂ •I'lainable belief and
good faith were not available for the tort of
tion oJ no ques­tion of immunity, however, and we question
Plaintiff-appellanfs reliance on it. In l o n Z

^ lice  officers did not choose to • * .  
defend the case on the hope that they could

-^ -a l  .  contendiS’^ 7

S e  law thdrih'^® a ‘̂ "der
state a w l  .  f“"der color oflate law] .  required by § 1983
[Pierson v. Ray, 386 U.S. 547 556 87 S r'l
1213, 1219, 18 L.Ed.2d 288 (19(67)]

“ federalremedy for the redress of wrongs done under 
the color of state law. As such, state law or 

the prevailing common law view is no longer 
decisive as to the availability of a § 1983

S ' " “ ' Z“ T ”  "'■■■
S iQS-t ^  ®"d purposes of the
fion of th 'Whether impona-

where the common law provides none is 

424 U.S. 409, 424-29 [96 S Ct 984 47

u f f o 8
2141 e a  ̂ L.i;d.2d^14] (1975), Schetier v. Rhodes. 416 U .S.

[18] Therefore, in defense of this action 
for darnagru.s, p„|iee officers Moats and

( " I ? 7 4 f^ ‘' ' '  ‘'d£d.2d 90)UJ/4). (ornpare Whirl v. Kern 407 P 7

S I '  S !?  396 U.S.[90 s et. 210, 24 L.Ed.2d 177] ( 1969)
(good l.uth no defense to false imprisonment 
at common law, so no defense under § 1983)
1 9 / 1  / ‘"n 1210 (5th Cir
976) (en banc) (overruling Whirl and hold- 

n.g goo.  ̂ taith defense generally availabl m 
IJ83 damaj^e actions)

Developmems ,n the Law-Seetton 1983 and
(1977? /■ “  “ “•’̂ •L.Rev. 1133, 1211 n. 126
225 229 ? '  Thomas. 476 F.2d425, 229 (4th Cir. 1973).

' ? f  , ? " ' " ‘df-appellant relies on section 28-841 
of the Reissue of Nebraska Revised Statutes a 
provision that she claims preempts the a p ito  

on of good faith defense to this case:
28 841. Mistake o f la w; reckless or negll- 

f?i"dedT jostification af-
- tb ie ? :h :,? " '"^  - -

o f ? ! , ? ! "  d’® unlawfulness
T m ?  “ "duct against which he
emp t̂ ys protective force or his belief in the 
awtulness of an arrest which he endeavors 

to effect by force is erroneous; and 
(h) lbs error is the result of ignorance or

«.i.l to 28 84.i, any other provision of the 
criminal law, or the law governing the legali­
ty 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 un- 
der sections 28 835 to 28- 840 but the actor is 

ckless or negligent in having such belief or 
in acquinng or failing to acquire any knowl-
S v ? ? / ^  the justifi-
affordeHh I " * " "  jtistfficationfforded by those sections is unavailable in a 
prosecution for an offense for which reck- 
lessness or negligence, as the case may be 
suffices to establish culpability.

(3) When the actor is justified under sec

towa'rdm^" force u^^Hr

ly 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 !egli 
gence towards innocent persons 
We doubt that this section applies here f o r  

the Officers relied upon the law as gTve„ to 
them in their police officers manual. The mis-
ors Tn Tested with their supen-
ors. In any event, the defense of good faithTo 
a section 1983 action rests on feLral 
not state policy See fv//

R.

IV

17



Rockwell were enlilled U) rely upon provi­
sions of Iheir m:uiu;il, even lhou r̂h those 
j)rovisions conflicleil with the posl-iiu iilenl 
inlerpreliilions of slate law as pronounced 
by the district court. Thus, their ^ood faith 
was an issue in the lawsuit.

LA N D iaiM  V. MOATS
CiU'ir. 576 F.2d 1320 (I9 7 «)

that rejitard the defendants

1329

(19,20) Hecause j,n>o<l faith is dependent 
on motivation and coi\duct oi the deli ndant 
as estahlishe<l at trial, the validity of lh<' 
defense is ordinarily a (pieslion loi- the jury. 
Pierson v. li:iy, supr:!, tiSti U.S. at ofj? 58, 
87 S.Cl. 12i:5; Uevciopments in ihc L:tw- 
Scclion lo ss  :ind Fcdcrnlism, 90 Harv.I.,. 
Rev. 1123, 1209 n. 119 (1!»7T). Moreover, 
like other affirmative defen.ses orit înally 
predicated on the common law,” the burden 
is on the defendant to prove each element 
of the defense to the jury's .satisfaction.'" 
Cf. Pierson v. liny, siipni, tiXti U.S. at 555 
58, 87 S.Ut. 12i:{. The existence id' a ^ood 
faith issue stands as a bar to appellant s 
claim to be entitled to a jiidKiiienl n. o. v. 
on liability. Accordin ,̂dy, the trial jmRn' 
correctly overruled plaintilf's motions lor a 
directed verdict and judgment n. o. v.

IV. The Propriety o f  a iVew Triul.

In arguing that the trial judj^e (.rred in 
denyin(T her motion for a new trial, appel­
lant Leslie Landrum reiterates her exces­
sive force arj^umenl, concludinn that the 
jury verdict is contrary to the evidence and 
instructions. We have already ruled that 
the policemen used excessive force as a 
matter of law. We still need to analyze 
appellant's arf^umenl, however, in lijtht of 
the principal applicable instructions.

Instruction No. 11 read as follows;

In connection with [ilainliff’s first and 
second causes of action, defendants con­
tend that their actions did not deprive the 
plaintiff’s decedent of his federal consti­
tutional rights in that the defendants’ 
actions were lawfully performed within 
the sco|)e of their authority as police offi-

17. In Sehener w Kluulvs, -tlli U.-S. 2.12, 2.18 19. 
9-1 .S CI. 1118.1, 40 1. I.il.2cl 90 (1974), Cliict .lus 
( ICC Burner aiiah'zeU ihe historical tools a m i  

ilevelo|)ments ol Ihe iletense

cers. I n 
claim:

1) That at the time of the incident in 
(piestion here, they believed in jrood faith 
that they had probable cause to attempt 
to arrest plaintiff’s decedent for a viola­
tion of Nebraska law; and

2) That the force used in atlemplin)r u, 
make I his arrest was reasonably neces- 
.sary under the eirciimslances.

If the defenilanls reasonably believed 
that they were aclinfr by authority ol a 
valid stale law in altemptin)r lo arrest 
plaintiff’s decedent and that they had 
probable cause as that term is explained 
lo you in these instructions, lo attempt lo 
arrest the plaintiff’s decedent, and if the 
defendants acted in jrood faith on the 
basis of these beliefs, then the defend- 
ant-s’ rea.sonal)le belief and (toimI faith 
would lawfully authorize the defendants 
to attempt to arrest jilaintiff’s decedent.

If, in addition, the force utilized by 
defendants m attempt in)? to effectuate 
this arrest were reasonably necessary, as 
explained elsewhere in these instructions, 
and were not exce.ssive, then you must 
find for the defendants in connection 
w'ilh plaintiff’s first and second causes of 
action.

If on the other hand you find by a 
preponilerance of the evidence that de­
fendants did not have probable cause lo 
attempt to arrest plaintiff’s decedent or 
if you find that defendants ilid have 
probable cause to arrest plaintiff s dece­
dent but u.sed excessive and unreasonable 
force in attem|>lin(i; lo make that ar>-est, 
then you may find for jilainliff on the 
first and .second causes of action. 

Instruction No. 14 read as follows;
In makinj' an arrest, a police officer 

may use whatever force is reasonably 
neces.sary. Reasonable force is (generally 
that amount of force which an ordinary, 
|)rudent and intelli)renl person with the

18. Here Ihe olficers needed lo show that "all 
other means [ol capturing Rot l.andrum had] 
tailed," a preretiuisile lo the use ol tleadly lorce 
•iccortling lo the Omaha [Kilice manual.

I '

f',.'

, -  1 • A  ?, e.

■



1330

r •

i:

I !

w!

nil

Jn . i e t o r m m i n g  w h . i h . T  o r  n o i  il. .
UHo,l on ly  snyh ' ' ' ' "

real Roy Lee Lan,l/
mind t h . t r - m ^ t t a r i n
î̂ ;l̂ âska in full f '* SUlu of

limn of thl inoilL 7 "  “  “n-'

t l . . . H n o d T « : ; * ‘‘ ' 7  »  nn.
Of np, •* Officer,

ihe person believes ih=,» <■
^se<i creates no substantial lilk ^  
to mnocent bystanders; and

4) The person believes that th 
for which the arrest is m l 
conduct including the use 
ose of deadly fnr,-,,  ̂ “!' threatened

=« ™DERAL reporter. SERIES

th e g ,H .rf'u V lesrto  il,' J
‘- ‘ii.se to arrest bui  ̂ r̂ob̂ Mi S
îPPellant does ’n t "°ted.

root Ihe .lucudunt R„v T  “  •►
court. h .,»„.or L Z f , ^

•■ensu with rcLOini to th 7  ‘̂"'•' dp
of »»co»u ,„a,rfi,;:u .7.“ ,
ply informed in instm f  "fas si». I

;onable force ,s . o n l ^ r t l ^ t  t  ^
force which an ordinary LudeL ?  ■
hgent person with the ifn  ̂
situation of the ^  and in th,

es.” 2» the circumstane.

ose of deadly force or th lt 1 e '^e ju r y 2 y  "  7
^obstantial risk that the , '  ^  the use of a r
arrested will cause death or lerTô us , 7 7  P«''ce manual'.''"T"’ ‘=”"^°™'ty wi2 

™  I his apprehension is delayed^ *  ̂ ‘̂ "̂ed upon the"ir^*^"'^^’
Deadly focee is defined as r “se of d eSlv  r  ̂ 'whether

a person uses with it, ^  '^hich cers was  ̂ the police offw
- l -  or S „ r  , X ' | " ” 0 fc a „ r i„ , n ^ " f  ™  " «  cc.non.hle^ B , t

'̂hich the fHirson knows to officers M oa^ "'“' J ‘h.|
stantial risk of death or ‘='̂ ed “reasonable f Rockwell exer.
harm. Purposely finne a twJily fieeing Roy Lee I a shooting at the
^■>ection of anotL I T T "  'o Part HI of '
• aistrrct court .   ̂ <̂ ead,y ^
joested instructions in ° '« « rs ’ re- , , ,  c.rcumsUn>quested Ins^^uctionTin^^th'^ re-20 m/ra. ‘tus regard. .s>e note

ants correctly''emb^ied‘’m defend-
faith defense. ^  elements of a good

^5. was a aegm rt‘^of‘L ' ’s°w r'^ d ‘" * ‘™‘'‘ ‘° "  
Procedure Manual of the Om a Operating 
ment explaining when an ‘^^part-
ase his firearm while on dutw ' '

the°folLw .™ "‘2  '5- '975,

formance of dutV for^r P«r-
reasons;  ̂  ̂ ‘he following
«  J  d .f„ d  h „ „ „  ura.h „r 

senous mju!7 ‘" ““•‘m person from draih or

.“ - r : i ' ^ : ; ™ - . P . P r . . o r o r . , , .
officer knows or has re "»
• -'-ve  has com,^u«e/a ? r '" '"  '»
er means have failed ^  a" oth-

when no other means assistance
The second. deferH , ? . ‘®“ ®̂‘'a'’'«-
'6. explained the S  L r r l T ^  '"^'^ctioo
“ ">e use of dead lyloTcf in I P̂P'-̂ ^

e>‘her of them in us^^ deadly or
■ns the arrest of P laintiff h 
ably believed deadly force to reason-
effect the arrest of P|a,n,,fr, 
reasonably believed ‘"Ps deceased and
had the / .Z T y 7 o  use^d^eadf
circumstance then attendant  ̂ ‘h*
a verdict for and on their behalf

BS-rv- -

m

R̂ iS-c''



US as a matter of law 
which the case was submitteil to the jury, 
the jury venlict stands unsu|i|)orte<l liy the 
evidetice and is contrary to the instructions.

Aecordinf l̂y, appellant is entitled to a 
new trial. On retrial appellees have the 
right to a proper instruction on their go(.d 
faith defense, and they hear the burden of 
proof on this issue.-'

Reversed and remanded for a new trial.

UNITKI) STATKS v. JOHNSON 1331
t tie iis 576 r.?d 1331 ( I97S)

On the theory upon and fraudulent statement to employer on or 
about date of commencement of his employ ­
ment. tib i i .s .c .A . (i.R.c.i'.tro)
72(ir>.

UNITED STATES of America. Appellee,

V.

Douglas W. JOHNSON. Appellant.

No. 78-1191.

United States Court of .Appeals, 
Eighth Circuit.

Submitted June 12, 1978.
Decided June lb, 1978.

Defendant was convicted in the United 
States District Court for the Eastern Dis­
trict of .Missouri, H. Kenneth Wangelin, J., 
of failing to make an income ta.\ return and 
supplying a false and fraudulent statement 
to his employer, and he appeaU'd. The 
Court of Appeals held that there was no 
basis for defendant's contentions that the 
information was insufficient.

Affirmed.

1. Internal Revenue e=>2446
Record faile<i to sui>port contention of 

defendant, in prosecution for failing to 
make income tax return and supplying false 
and fraudulent statement to employer, that 
there was varianc(; between proof and in­
formation’s charge that he supplied false

21. Hcraiis<* ol our disposition ol the cast*, we 
do not n at h appcllam’s claims >»( ci roi rej ârd*

2. Criminal I-*aw o=»l 167(4)
Although trial court, in prosecution of 

defendant for failing to make income tax 
return and supplying false and fraudulent 
statement to his employer, should perha|)s 
have corrected typographical error in infor­
mation bv amendment, failure to do so was 
not error where error, which related to date 
on which defendant allegedly supplied fal.se 
and fraudulent statement to employer, did 
not involve material element of offense and 
defendant was not prejudiced. 26 U.S.C.A. 
(I.R.C.1954) 720.6; Fed.Rules Crim.Proc.
rule 7(e), 18 U.S.C.A.

David M. Nissenholtz, St. Louis, Mo., for 
appellant.

Robert D. Kingslaiid, U.S. Atty., and 
James J. Harta, A.sst. U.S. Atty., St. Louis, 
.Mo., for appellee.

Before LAY, BRIGHT ami ROSS, Circuit 
.ludges.

PER CURIAM.
Douglas W. Johnson appeals from his 

conviction on one count of failing to make 
an income tax return in violation of 26 
U.S.C. § 720.3, and two counts of supplying 
a false and fraudulent statement to his 
employer, in violation of 26 U.S.C. § 7205. 
Finding no merit in either of the groun<ls 
a.sserted by Johnson for reversal of his con­
viction, we affirm.

HI j<* hnson contends that counts II and 
III of the information charged him with 
supplying a false and fraudulent statement 
to his employer on or about the date of 
commencement of his employment, whereas 
the evidence |)roved a dil ferent date. He 
misconstrues the information. It charged 
him with supplying false and fraudulent 
statements on September 10, 1974, and

iiig certain other instructions given by the dis­
trut court.