Pruitt v. Montgomery Brief and Argument of Intervenors and Appendices of Graddick

    IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

NO. 84-7571

DARRYL PRUITT,
(PLAINTIFP)-APPELLEE 

VS.
CITY OF MONTGOMERY AND LESTER G. KIDD,

(DEFENDANTS)-APPELLANTS

AN APPEAL PROM THE UNITED STATES DISTRICT 
COURT FOR THE MIDDLE DISTRICT OP ALABAMA 

(CIVIL ACTION NO. 83-T-905-N)
VS.

THE STATE AND ATTORNEY GENERAL OP ALABAMA,
INTERVENORS

BRIEF AND ARGUMENT OP INTERVENORS AND APPENDICIES
OP
CHARLES A. GRADDICK 
ATTORNEY GENERAL OP ALABAMA 
INTERVENOR
JOSEPH G. L. MARSTON III 
ASSISTANT ATTORNEY GENERAL OP ALABAMA
ATTORNEY FOR INTERVENORS
OFFICE OP THE ATTORNEY GENERAL 
250 Administrative Building 
64 North Union Street 
Montgomery, Alabama 36130 
(2 0 5) 834-5150



IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

NO. 84-7571

DARRYL PRUITT,
(PLAINTIFP)-APPELLEE 

VS.
CITY OP MONTGOMERY AND LESTER G. KIDD,

(DEPENDANTS)-APPELLANTS

AN APPEAL PROM THE UNITED STATES DISTRICT 
COURT FOR THE MIDDLE DISTRICT OF ALABAMA 

(CIVIL ACTION NO. 83-T-903-N)
VS.

THE STATE AND ATTORNEY GENERAL OP ALABAMA,
INTERVENORS

BRIEF AND ARGUMENT OP INTERVENORS AND APPENDICIES
OP
CHARLES A. GRADDICK 
ATTORNEY GENERAL OF ALABAMA 
INTERVENOR
JOSEPH G. L. MARSTON III 
ASSISTANT ATTORNEY GENERAL 
OP ALABAMA
ATTORNEY FOR INTERVENORS
OFFICE OP THE ATTORNEY GENERAL 
250 Administrative Building 
64 North Union Street 
Montgomery, Alabama 36130 
(205) 834-5150



STATEMENT REGARDING PREFERENCE 
This case not due preference in processings

STATEMENT REGARDING ORAL ARGUMENT 
The Interveners are not sure whether oral argument 

is necessary in this case. However, if this Honorable 
Court should desire the same, the Interveners stand 
ready, willing, able and anxious to present oral 
argument.

STATEMENT OF INTERESTED PARTIES 
Although the Interveners are governmental parties, 

they submit that the issue which is argued in this brief, 
namely the constitutionality of Section 13A-3-27, Code of 
Alabama, 1975, (Appendix "A"), is of vital interest to 
all of the people of Alabama.



TABLE OF CONTENTS

PAGE

STATEMENT REGARDING ORAL ARGUMENT---------------  ante
STATEMENT REGARDING PREFERENCE------------------  ante
STATEMENT OF INTERESTED PARTIES-----------------  ante
TABLE OF CASES----------------------------------  iii
TABLE OF STATUTES------------------------------- v
TABLE OF OTHER AUTHORITY CITED------------------ vi
STATEMENT OF THE ISSUES--------------------------  1
STATEMENT OF JURISDICTION------------------------ 2
STATEMENT OF THE CASE----------------------------  2
STATEMENT OF THE FACTS--------------------------- 6
SUMMARY OF ARGUMENT------------------------------ 10
ARGUMENT----------------------------------------- 1 3

I. THE COMMON LAW RULE AND THE ALABAMA
STATUTE: AN EFFORT TO PROVIDE BALANCED
PROTECTION WITH A PRACTICAL RULE-------  13

II. THE COMMON LAW RULE AND THE ALABAMA 
STATUTE: A LEGAL DEFENSE WHICH
PROTECTS HUMAN LIFE--------------------  21

III. THE COMMON LAW RULE AND THE ALABAMA
STATUTE INSURE THAT THE LAW WILL BE A 
POTENT FORCE AGAINST LAWLESSNESS-------  25

IV. IF THE COMMON LAW RULE AND THE ALABAMA 
STATUTE ARE UNCONSTITUTIONAL WHAT 
THEN?----------------------------------- 26



TABLE OF CONTENTS CONT'D

PAGE

CONCLUSION-------------------------------------- 32
APPENDICIES------------------------------------- 34

APPENDIX A - SECTION 13A-3-27, CODE OP
ALABAMA, 1973----------------  35

APPENDIX B - ORDER OF DISTRICT COURT,
JUNE 12, 1984----------------  38
AMENDMENT OP JULY 26, 1984---  44

CERTIFICATE OF SERVICE-------------------------- 45

11



TABLE OF CASES

PAGE

Alabama v. Pruitt,
-----53 U.S. L.'lTk. 3405

(1984)------------------------------------- 6
Ashcroft V. Mathis,

431 U.S. 171,52 L.Ed.2d 219,
97 S.Ct. 1739 (1977)----------------------  4,17

Ayler v. Hopper,
532 F.Supp. 198
(M.D.Ala., 1981)--------------------------- 3-5,18

Beech v. Melancon,
409 U.S. 1114,34 L.Ed.2d 696,
93 S.Ct. 927 (1972)-----------------------  15

Beech v. Melancon,
465 P.2d 425(6th Cir., 1972)--------------------------- 15

Connors v. McNulty,
------- 697 P .2d 16' ■

(1st Cir ., 1 983)--------------------------- 20
Gamble v . State,

48 Ala.App. 605,
266 So.2d 817 (1972)----------------------- 24

Garner v. Memphis Police 
Department,

710 F.2d 240(6th Cir. , 1983)--------------------------- 5, 18
Hilton V. State,

348 A.2d 242(S.J.Ct. Maine, 1975)---------------------- 20
Illinois V .  Gates,

U.S.
7?“L.Ed.2d 527,
103 S.Ct. (l983)----------------------- 13,30

111



TABLE OF CASES CONT'D

PAGE

Jones V. Marshall,
-----52S -pr^d-TT^(2nd Cir. , 1975)--------------------------- 20
Massachusetts v. Upton,

U.S.
^ L . E d  .2TT21 ,
104 S.Ct. ___ (1984)----------------------- 13,30

Mathis V. Schnarr,
-----547 P.2d' 1007

(8th Cir., 1976)--------------------------- 17,20
Memphis Police Department v.
(jarner,

U.S. ,
L.Ed.?a“

104 S.Ct. 1589,
52 U.S. L. Wk. 3687
(1984)------------------------------------- 5

Reese v. Seattle,
414 U.S. 832,
38 L.Ed.2d 67,
94 S.Ct. 169 (1972)------------------------ 20

Reese v. Seattle,
81 Wash. 2d 374,
503 P.2d 64,
83 Al.L.R. 3<i 157
(1972)------------------------------------- 20

Schumann v. McGinn,
307 Minn. 446,
240 N.¥.2d 525( 1976)------------------------------------- 20

Schumann v. St. Paul,
268 N.W.2d 903 (S.Ct. Minn.,
1978)-----------------------------------------  20

IV



TABLE OP CASES CONT'D

PAGE

Strickland v. Washington,
---------TTw: ;

L.Ed.2TT74,
104 S.Ct. ___ (1984)------------

Taylor v. State,
48 Ala.App. 443,
265 So.2d 886 (1972)------------

Tennessee v. Garner,
U.S.L . E d . ^

T M  S.Ct. 15M752 U.S.L.Wk. 3687
(1984)--------------------------

TABLE OP STATUTES

13,30

24

PAGE

Code of Alabama, 1975 
Section 13A-3-27-

Section 13A-6-62- 
United States Code 

Title 28,
Section 1291----
Section 2403----
Title 42,
Section 1983----

ante, 
2-4,13 
21,25, 32
7

2
2,5

2-4



TABLE OP OTHER AUTHORITY CITED

PAGE

American Jurisprudence,
Second-------------------------------------- I3

American Law Reports,
Third Series-------------------------------- I3

Corpus Juris Secundum---------------------------- 13,23,
24

VI



IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

NO. 84-7571

DARRYL PRUITT,
(PLAINTIPF)-APPELLEE 

VS.
CITY OF MONTGOMERY AND LESTER G. KIDD,

(DEPENDANTS)-APPELLANTS

AN APPEAL FROM THE UNITED STATES DISTRICT 
COURT FOR THE MIDDLE DISTRICT OP ALABAMA

(CIVIL ACTION NO. 83-T-903-N)
VS.

THE STATE AND ATTORNEY GENERAL OP ALABAMA,
INTERVENORS

BRIEF AND ARGUMENT OP INTERVENORS 

STATEMENT OP THE ISSUES

1. Does the U.S. Constitution authorize a state to 
establish a legal defense based on established common law 
principles in the interest of protecting human life, 
discouraging resistance to arrest, and guaranteeing that 
the law is not impotent in dealing with lawlessness?



2. Is a state statute which creates a defense to 
claims and charges arising out of the use of force by 
police officers, to the extent that such force is 
necessary to effect lawful felony arrests, repugnant to 
the U. S. Constitution?

STATEMENT OF JURISDICTION
The action in the district court was brought under 

42 U.S.C.§1985• The basis of the jurisdiction of this 
Court lies under 28 U.S.C. §1291 designating this Court 
to have jurisdiction of appeals from all final decisions 
of the United States District Courts. On October 9> 
1984, this Honorable Court granted the Interveners' 
motion to intervene under 28 U.S.C. §2403*

STATEMENT OF THE CASE
The Interveners have no interest in this litigation 

save in the constitutionality, vel non, of Section 
13A-3-27, Code of Alabama, 1975 (Appendix "A"). The 
Interveners are neither authorized to argue nor do they 
argue any other issue in this Court. This statement of 
the case is, therefore, limited to the rulings relating 
to the statute.



The history of this case goes back to Ay1er v.
Hopper (532 F.Supp. 198 [M.D.Ala., 1981]). In that case
a convict sued a prison official under 42 U.S.C. §1983*
The official had seen the convict escaping and, having no
other means of stopping the convict, shot at him and
wounded him. The plaintiff convict claimed damages for
his injuries. The defendant prison official raised the
defense of good faith reliance on Section 13A-3-27, and
the plaintiff asked the District Court for a ruling on
the constitutionality of the statute. The Court ruled
that, whether the statute was constitutional or not, the
prison official had relied on it in good faith and had
the right to his defense. Ayler v. Hopper, 532 F.Supp.
198, 199-200 (M.D. Ala. 1981). The Court then wrote:

"...Presumably the plaintiff is 
familiar with the above and actually 
seeks by his first motion in limine 
an indication of what the Court 
understands to be the constitutional 
standards governing the plaintiff's 
section 1983 claim and the defend­
ant's asserted good faith immunity 
defense. Because these standards 
have been the subject of extensive briefs by the parties, and because 
pre-trial knowledge of the Court's 
understanding of these standards is 
likely to be crucial to the effective 
prosecution and defense of this case 
and in general to its orderly disposition, the Court finds it 
appropriate and desirable to inform 
the parties at this time of its 
understanding of these standards...."
(532 F.Supp. 198, 200)



There then followed an advisory opinion declaring Section
13A-3-27 unconstitutional. The Court held that officers
were constitutionally barred from using deadly force to
overcome resistance to any arrest. Such force, the Court
opined, could only be used in self defense against
imminent death or great bodily harm. The Court wrote:

"...It is clear to the Court that the 
use of deadly force by a prison 
official to stop an escaping felon is 
consitutionally tortious unless the 
official has good reason to believe 
that the use of force is necessary to 
prevent imminent, or at least a 
substantial likelihood of, death or 
great bodily harm...." (532 P.Supp.
198, 201)

Since the defendant prison official prevailed on both his 
right to raise the statute as a defense and in the final 
judgment and the plaintiff convict did not appeal, there 
was no occasion for appellate review of Ayler. Compare 
Ashcroft V. Mattis, 431 U.S. 171, 52 L.Ed.2d 219, 97 
S.Ct. 1739 (1977).

The instant case arose out of an officer's effort to 
arrest a party for burglary. An injured arrestee sued a 
police officer and the City of Montgomery under 42 U.S.C. 
§1983. The cause came before the same court and the same 
judge as Ayler. It appears that if Section 13A-3-27 is 
valid, then the Defendants have a valid defense. The 
District Court took the position that, if Ayler is



correct, the defendants violated the Constitution.’'* On 
June 12, 1984, the District Court reaffirmed its decision 
in Ayler and, relying on Ayler and Garner v. Memphis 
Police Department (710 F.2d 240 [6th Cir., 1983], now 
pending in the United States Supreme Court^-), ruled 
Section 13A-3-27, unconstitutional and granted summary 
judgment for the Plaintiff. (Appendix "B")

An attempt by the Defendants to appeal the June 12, 
1984, order interlocutorily failed when the District 
Court took no action on the Defendants' motion. After a 
final judgment for the Plaintiff, the Defendants appealed 
to this Honorable Court. The Intervenori' motion to 
intervene under 28 U.S.C. §2403 was granted on October 9, 
1984.

Due to the pendency in the United States Supreme 
Court of two related cases (See footnote 2) involving 
substantially the same issue as that argued by the

' • The District Court took the position that if the 
statute is unconstitutional, then the defendants had no 
defense. While it is beyond the scope of this brief, it 
would seem that such a position ignores numerous factual 
and legal issues, e.g. the officer's testimony that he 
feared for his life.
2. Tennessee v. Garner, No. 83-1035» and Memphis Police
Department v. Garner, No. 83-1070, U.FI
L'.Ed '.’̂ d , T 0 4 '~ ^ t . 1589, 52 U .S T ^ .W k . 3 ^  (T954 ).



Interveners in this Court and the Appellee's motion to 
stay proceedings in this Court, the Interveners, on 
November 3» 1984, petitioned the Supreme Court for a writ 
of certiorari prior to final judgment. Alabama v.
Pruitt, No. 84-715, 53 U.S. L.¥k. 3405 (1984).

STATEMENT OF THE FACTS
The only issue which the Interveners are authorized 

to argue in this case is the constitutionality vel non of 
a state statute which codifies a common law rule. The 
facts of the case are relevant only in suggesting the 
context in which the statute normally operates and in 
which it operated in this case. The District Court 
granted summary judgment on the basis of depositions, 
which are exhibits in this record. (R.p.64) The most 
significant of these are briefly digested below.

FROM THE DEPOSITION OF DARRYL W. PRUITT:
The incident took place shortly before Pruitt’s 

twentieth birthday. (pp. 4 & 6) Prior to the incident, 
Pruitt had amassed a minor criminal record for third 
degree theft and traffic offenses. (pp. 9-11)

At one o'clock in the morning on the date of the 
incident, Pruitt, two male friends and two young ladies 
went to a closed auto parts store on West Fairview 
Avenue, in Montgomery, Alabama. (pp. 11-12) One of the



young ladies was fifteen year old Sharon Brown. (pp* 12 
& 16) Pruitt took Miss Brown into a shed behind the parts 
store and had sexual intercourse with her.3- (pp. 12-15 
& 18) After Pruitt dressed and while he waited for Miss 
Brown to dress, the two other men suddenly broke and ran 
from the scene. (R.p.19) Pruitt heard two commands from 
officer Kidd to halt, but he did not believe that the 
person was an officer. He continued moving away

.walking... at maximum speed...." (p. 22-25) The first 
shot "...sprinkled ...[his] arm and back...." but he 
kept moving. (p.20) The second shot struck him in the 
lower back, (ibid) He was three or four yards from a 
ditch, but his momentum carried him into the ditch. (pp* 
23-24) Pruitt described the officer who shot him as "...a 
black guy...." (p.22)

The incident was investigated by the Montgomery 
County District Attorney’s office. (p.32)

Pruitt was charged with rape in the second degree. 
The case was no-billed by the grand jury, but Pruitt does 
not know why. (p.32)

3- "§13A-6-62. Rape in the second degree.
"(a) A male commits the crime of rape in the second 
degree if:"(1) Being 16 years old or older, he engages in sexual 
intercourse with a female less than 16 and more than 12 
years old; provided, however, the actor is at least two 
years older than the female...." (Code of Alabama, 
1975)

7



FROM THE DEPOSITION OF 
OFFICER LESTER G. C. KIDD:

Officer Kidd testified that he understood, based on 
his training, that (1) where an officer is absolutely 
certain that a person has committed a felony and cannot 
otherwise be stopped, the officer has discretion to shoot 
and that (2) that discretion is be exercised to protect 
human life. (p.11-14)

On the night of the incident, he and his partner 
received a radio call that there was a burglary in 
process at 614 West Pairview Avenue. They proceeded to 
the scene, and Kidd was dropped off in the wooded area 
behind the parts store. (pp. 15-16) Kidd went into the 
dark thicket. He received word from his partner that he, 
the partner, had two suspects in custody, and that the 
original report had come from an adjacent store and had 
stated that three black males had been breaking into the 
parts store. (pp. 16-18) As Kidd moved on into the 
thicket, Pruitt jumped out from behind a bush and charged 
the officer. When Kidd brought his shotgun to high port 
in order to repel the attack, Pruitt veered off and fled 
toward a ditch. (p.18) What happened next takes more 
time to describe than it did to occur. Kidd called out, 
"Halt, police!" at least twice. (pp. 19-20,25,30-31,34)

8



Officer Kidd tried to pursue Pruitt, but the conditions 
of the thicket prevented it. (pp. 39-40) There was not 
enough time nor light to determine if Pruitt had anything 
in his hands. (pp. 16,32,34 * 38) Kidd judged that if he 
did succeed in overtaking the suspect, a fight would 
insue, in which the officer would be disadvantaged by his 
encumbering equipment and would risk losing his weapons 
and having them turned on himself. (p. 39-40) After 
calling at least twice for the running suspect to stop, 
Kidd fired and, when the suspect continued to run, fired 
again. (p. 20) In each case he aimed for the suspect's 
legs. (ibid)

Pellets from the second shot struck Pruitt in the 
buttocks. (p. 45)

Kidd later found out that the crime was rape, not 
burglary. (p. 46)

On the question of whether he considered Pruitt
dangerous, Officer Kidd testified:

”Q. Now, at the time that you fired 
the shots, did you think that Pruitt 
was dangerous?
"A. When the subject came at me, 
that let me know right then that the 
subject would use physical force if 
necessary, so as far as my thinking 
he's dangerous. Anytime a subject



would even attempt to use physical 
force the subject has a potential of 
being dangerous because I have two 
weapons on me. So if I were to be 
knocked down and he were to take my 
shotgun then I'm through with.
"Q. Any other —  did you have any 
other reasons for believing he was 
dangerous at the time?
"A. None other than being a felon 
coming out of a building, just those 
two reasons, the strongest one being 
him coming at me..." (p. 40)

* * * *
"Q. So is it correct then that at 
the time you shot Darryl Pruitt you . 
didn't think he was about to kill or 
harm some other person?
"A. No. At the time that I shot 
Darryl Pruitt my thinking was that he 
was a fleeing felon coming from a 
burglary; that he also had made an 
attempt to physically harm a police 
officer but he avoided that attempt 
and he was a subject that I felt 
needed to be stopped...." (p. 84)

SUMMARY OP THE ARGUMENT
I. The Common Law Rule and the Alabama Statute 

provide a practical rule balancing the protection 
afforded society, arrestees and officers: Society is
assured that, if there is any way that an officer can 
effect a lawful felony arrest, he or she will do so.

10



The arrestee is guaranteed protection from all force, if 
and when he complys with the law and submits to lawful 
arrest, and the risk faced by an officer who must pursue 
an unknown arrestee is minimized. The Common Law Rule 
provides officers and arrestees alike with clear practi­
cal guidance. The various rules advanced in place of the 
Common Law Rule, while suitable for application by courts 
in after-the-fact review of officers' actions, are 
utterly impractical in the usual resisting arrest 
situation. This is the reason that numerous state and 
federal courts, which have review the Common Law Rule in 
recent years, have referred the critics to the 
legi slatures.

II. The Common Law Rule and the Alabama Statute 
protect human life by discouraging resistance to lawful 
arrest and providing police officers with a full measure 
of self-protection in high risk situations. By making 
resistance to lawful arrest a futile and high risk 
undertaking, the Common Law Rule discourages resistance 
to the vast majority of felony arrests. This is the 
safest course for innocent bystanders, society, arrestees 
and officers. If an officer must overcome resistance to 
arrest, the potential danger to the officer universally 
recognized. However, in protecting himself or herself

11



from that danger an officer deprived of the protections 
of avoiding conflicts and retreat, which are mandated 
elements of common self defense. An armed officer who 
engages in a physical struggle with an arrestee risks 
being disarmed and having his or her own weapons turned 
on him or her. We owe police officers at least as much 
protection in the resisting arrest situation as the 
average citizens enjoys in everyday life. The Common Law 
Rule provides officers with such protection in confusing 
life-threatening emergency situations.

III. To hold that the Common Law Rule is unconsti­
tutional is to hold by necessary implication that the 
U.S. Constitution underwrites that resistance to arrest 
which can be overcome only by deadly force. Such a rule 
would encourage resistance to arrest and, in effect, 
punish arrestees who submit to lawful arrest. The Common 
Law Rule and the Alabama Statute avoid these absurd 
results and guarantee that the law is a potent force 
against lawlessness.

IV. If the Common Law Rule and the Alabama Statute 
are indeed unconstitutional, then this Court should 
identify the constitutional perameters of the use of 
deadly force, leaving the details to legislative 
enactment. The constitutional perameters should concern

12



substance rather than form, both in defining "deadly 
force" and the limits of its use. Any rule should be 
applied on the basis of what is known or reasonably 
believed and judged by the officer at the time and not on 
the basis of hindsight. Compare Illinois v. Gates,
U.S. ___, 76 L.Ed.2d 527, 546-547, 105 S.Ct. ___ (1983);
Massachusetts v. Upton, ___ U.S. ___, 80 L.Ed.2d 721,
727, 104 S.Ct (1984) and Strickland v. Washington,

U.S. , 80 L.Ed.2d 674, 694-695, 104 S.Ct.
(1984).

ARGUMENT
I.

THE COMMON LAW RULE AND THE ALABAMA 
STATUTE: AN EFFORT TO PROVIDE
BALANCED PROTECTION WITH A PRACTICAL 
RULE.

Section 13A-3-27, Code of Alabama, 1975, is the
Alabama codification of the Common Law Rule limiting the
use of force in overcoming resistance to lawful arrest.
Compare 6A C.J.S., Arrest, Section 49(b); 5 Am. Jur. 2d,
Arrest, Section 84 and 83 A.L.R. 3rd 157-230. The Common
Law Rule and the Statute both provide:

An officer is justified in using 
whatever force is (l) necessary in 
overcoming resistance to a lawful 
arrest, provided (2) such force is 
reasonable.

13



There is absolutely no controversy over this rule. 
The controversy swirls around the definition of 
"reasonable." The Common Law Rule, in an effort to 
establish a standard which is sufficiently certain to be 
of practical use in highly uncertain situations, defines 
"reasonable" in terms of the legal definition of the 
involved crime: Any force short of deadly force is
"reasonable" in the case of a misdemeanor arrest; any 
force, including deadly force, is "reasonable" in the 
case of a felony arrest. The Common Law Rule, then, 
seeks to do two things: (1) Balance the rights and
protections afforded arrestees and officers in (2) terms 
which officers and arrestees can readily apply under 
emergency situations.

The felony-misdemeanor line is by no means arbi­
trary. Felony arrestees, faced with graver penalties and 
more likely to be sentenced to imprisonment, are far more 
likely to resist arrest with violence than misdemeanor 
arrestees. Pelonys are the crimes which both directly 
and indirectly threaten human life and limb and terrorize 
society. (Those who dismiss burglary as a peccadillo 
have never had the experience of finding their homes 
ransacked!) Misdemeanants are seldom armed; felons are

14



often armed. Critics of the Common Law Rule point out 
that the rule's strick lines occasionally lead to results 
which they consider "unreasonable", such as the possi­
bility of deadly force being used to effect an arrest for 
an antitrust violation.4* E.g. Judge McCree concurring 
in Beech v. Melancon, 465 E.2d 425> 426-427 [6th Cir., 
1 9 7 2], cert, denied 409 U.S. 1114, 34 L.Ed.2d 696, 93 
S.Ct. 9 2 7). However, the critics of the Rule never 
concern themselves with the Rule's "unreasonable" results 
on the other side. Consider the following set of facts, 
which unfortunately occurs regularly:

A highly intoxicated driver takes the wrong ramp and 
goes speeding down the wrong side of a freeway. The 
driver is clearly creating a serious threat to both his 
own life and those of innocent people. Officers in 
pursuit, who are not able to otherwise stop the driver, 
could remove that danger by shooting out the tires or

4- Such arrests are seldom made under the emergency 
situations which are the rule's usual field of operation. 
Since the officers can usually choose the time, place and 
manner of such arrests, they can minimize resistance and, 
ipso facto, minimize the force necessary to overcome resistance. This writer has never heard of deadly force 
being used to make an arrest for an antitrust violation.

1 5



disabling the engine of the vehicle. Such an action, in 
addition to protecting innocent lives, would involve no 
greater risk to the erring driver than that he is already 
running. Yet, under the Common Law Rule, the officers 
would not be justified in taking such action: The
discharge of firearms is considered deadly force no 
matter how or why such force is used, and drunk driving, 
reckless driving, improper lane usage and speeding are 
all misdemeanors. All the officers can do in such a 
situation is remain in pursuit, using their siren and 
police flasher to warn oncoming traffic.

The controversary over the common law rule is 
grounded primarily on sympathy.5* The critics of the 
rule sympathize with resisting arrestees; 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

5* Such sympathy is, of course, understandable. Arrests 
where significant amounts of force are necessary are 
unusual, and arrests requiring deadly force are rare, but 
these, especially the latter, are the ones that tend to 
come before the courts. It is the fate of the Common Law 
Rule that it always comes before the Courts in worst case 
senarios.

16



situations where the problem arises, a muzzel-flash in 
the dark may be the first and perhaps the last, 
indication 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.

Since it is agreed all around that officers need a 
law to guide them in the use of force in making arrests, 
it follows that, if the Common Law Rule is unconstitu­
tional, it must be replaced with another rule. While the 
critics of the Common Law Rule are clear that they do not 
like it, they seem to have no idea what should replace 
it. For example, the Eighth Circuit condemned the Common 
Law Rule, but refused to establish anything in its place. 
Mathis V. Schnarr, 547 F.2d 1007, 1020 (8th Cir., 1976); 
vacated 431 U.S. 171, 52 L.Ed.2d 219, 97 S.Ct. 1739- The

17



Sixth Circuit would allow an officer to use deadly force 
against a resisting arrestee who ”...poses...a danger to 
the community if left at large...." (Garner v. Memphis 
Police Department, 710 P.2d 240, 246 [6th Cir., 1985], 
pend, on cert, and app.), hut the District Court in the 
instant case would allow the use of such force only 
"...to prevent imminent, or at least a substantial 
likelihood of, death or great bodily harm...."6*
Ayler v. Hopper, 532 F.Supp. 198, 201 (M.D.Ala., 1981); 
Appendix "B", page 41*

Can a police officer make meaningful judgments about 
"danger to the community" in the typical resisted arrest 
situation, charactarized by the instant case, which would 
be sure to survive the sort of hindsight review advocated 
by the critics? What exactly is "a substantial likeli­
hood 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

6- The difference between these rules is of great 
practical importance. If the fleeing convicts in Ayler 
had been death row inmates, the rule of that case still 
would not have allowed the guard to fire, but the Sixth 
Circuit rule probably would allow him to do so. Of 
course, as a practical matter the guard probably would 
have no way of knowing exactly what the escapees' 
criminal history was.

18



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. The justification for 
the use of deadly force, then, becomes 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 of officers' actions.
They are entirely impractical in guiding officers at the 
time of the action.

The Common Law Rule, on the other hand, provides 
clear and easily applied guidance in these situations.
In order to make a lawful arrest, an officer must have a 
warrant or probable 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. Determining the force necessary to 
effect an arrest is a simple matter of gradually 
escalating the force until the arrest is complete. Just 
as officers can, under the Common Law Rule, know quickly 
and clearly what their duties and immunities are, so can 
an arrestee. The Common Law Rule has been so long

19



established that its provisions are common knowledge. A 
felony arrestee knows exactly what risk he runs should he 
decide to resist. Under the confusing rules advanced in 
the place of the Common Law Rule, a given arrestee might 
be led to believe that, since he has thrown away his 
firearm and feels that he is not dangerous, he can flee 
without risk of being shot, while a pursuing officer 
judges, on the basis of information available to him or 
her, that the arrestee is armed and dangerous. This is 
the reason why numerous courts, which have reviewed the 
Common Law Rule in recent years have referred its critics 
to the legislatures. See Connors v. McNulty, 697 F.2d 18 
(1st Cir., 1985); Jones v. Marshall, 528 P.2d 132 (2nd 
Cir., 1975); Hilton v. State, 348 A.2d 242 (S.J.Ct.
Maine, 1975); Schuman v. McGinn, 307 Minn. 446, 240 N.W. 
2d 525, 531 (1976); Schumann v. St. Paul, 268 N.W.2d 374, 
(S.Ct. Minn., 1978); Reese v. Seattle, 81 Wash. 2d 374, 
503 P.2d 64, 83 A.L.R. 3rd 157 (1972); cert. den. 414 
U.S. 832, 38 L.Ed.2d 67, 94 S.Ct. 169- See also 
Mathis V. Schnarr, 547 F.2d 1007, 1020 (8th Cir., 1976); 
vacated 431 U.S. 171, 52 L.Ed.2d 219, 97 S.Ct. 1739-

20



THE COMMON LAW RULE AND THE ALABAMA 
STATUTE: A LEGAL DEFENSE WHICH 
PROTECTS HUMAN LIFE.

The Common Law Rule is often characterized by its 
critics as "authorizing" the use of deadly force in 
stopping fleeing felons. This is a most unusual use of 
the word "authorize." The Common Law Rule, as it is 
embodied in the invalidated Alabama statute, is a 
defense.7 . Does the defense of insanity authorize murder 
or rape by insane persons? Does entrapment authorize 
drug trafficking or prostitution by entrapped 
defendants? Does contributory negligence authorize 
negligence injury? Defenses represent policy decisions 
to hold defendants justified or excused for actions 
normally condemned. The basis of the defenses above 
mentioned and that codified in Section 13A-3-27, Code of 
Alabama, 1975, is sound policy considerations. The most 
important policy consideration in the case of the statute 
and the Common Law Rule is the protection of human life.

II.

V- The defense compares closely with assumption of risk: 
One who undertakes to resist a lawful felony arrest 
assumes the risk of any injuries occasioned by the force 
necessary to overcome that resistance.
Given that the resisting arrest situation creates danger 
to life and limb, why should the officer assume that risk 
rather than the felon who creates it?

21



The Common Law Rule protects human life by ( 1 ) 
discouraging resistance of arrest, (2) permitting 
officers a full measure of self protection in the event 
of resistance, and (3) giving officers sufficient 
discretion to deal with confusing and unpredictable life- 
threatening situtaions.

Any resistance to arrest situation is highly 
dangerous to innocent bystanders, arrestees and officers. 
The initial function of any rule governing force incident 
to arrest is not to define the officer's civil liability 
nor even to guide the officer in overcoming resistance 
but to discourage resistance. Non-resistance to arrest 
is the safest course for society, innocent bystanders, 
officers and arrestees. The Common Law Rule holds an 
officer justified in the use of whatever force is 
necessary to overcome resistance to a lawful felony 
arrest. This means that as a rule, resistance is futile. 
Resistance to arrest, then, becomes a high risk activity 
with little hope of success. These considerations lead 
the great mass of felony arrestees to eschew resistance. 
In this way the Common Law Rule has for centuries 
discouraged resistance to almost all lawful arrests.

22



Where an arrestee, notwithstanding the Rule, chooses 
to resist arrest, the inherent danger to the officer is 
universally recognized. Even those who reject the Common 
Law Rule recognize that officers may resort to deadly 
force to protect themselves from death or serious injury, 
although these critics would require the officer to allow 
the arrestee the first move toward deadly force. These 
critics disregard the fact that an officer effecting an 
arrest is ipso facto deprived of the two best protections 
anyone has: (1) avoiding potentially violent alterca­
tions and (2) leaving the scene, when a violent alterca­
tion occurs. In fact, freedom from fault in bringing on 
the difficulty and retreat are elements of common self 
defense. 40 Am. Jur.2d Homocide, Section 140. An 
officer undertaking a lawful arrest is always "at fault" 
in bringing on the difficulty, and, if the arrest is 
resisted, the officer expected to go forward, not 
retreat. When an altercation between private citizens 
comes to a final termination, the law forbids one of the 
citizens to seek out the other and renew the combat. 40 
C.J.S., Homocide, Section 133- However, when a resisting 
arrestee makes good his escape, an officer is under a 
duty to seek him out and effect the arrest. The critics 
who condemn the Common Law Rule assume that a felon who

23



is running away from an officer is no danger to the 
officer. Yet, the law of self defense has always 
recognized strategic withdrawal, as opposed to completely 
breaking off the combat. 40 C.J.S., Homocide, Section 
1 3 2 . This is especially relevant in the case of an 
arresting officer, who is expected to pursue. Those who 
reject the Common Law Rule assume that an officer 
confronted with an unarmed resisting arrestee can safely 
engage in a phsical struggle with the arrestee.
Gamble v. State (48 Ala. App. 605, 266 So.2d 817 [1972]) 
and Taylor v. State (48 Ala. App. 443, 265 So.2d 886 
[1 9 7 2]) are cases which arose out of just such struggles. 
In both cases the struggles cost the officers their 
bolstered guns, and in one (Gamble), the struggle with an 
unarmed teenage drunk driver cost an officer his life. 
Although those who reject the Common Law Rule seem to 
think that the rules they advocate authorize officers to 
fully protect themselves, these rules in fact leave 
police officers with bearly half a loaf of the protection 
permitted private citizens. Our society sends its police 
officers into dangerous situations to defend our basic 
human rights and our way of life; we owe them more than a 
remnant of common self defense. The Common Law Rule 
balances concern for the safety of the arrestee with 
concern for the safety of the officer.

24



An officer who undertakes to make a lawful arrest is 
in the paradoxical position of confronting a citizen in 
an effort to take away his freedom, while at the same 
time minimizing the danger to innocent bystanders, the 
officer himself and the arrestee. There is no way that 
the law can anticipate all of the conditions of lighting, 
weather, and terrain under which such confrontations will 
take place. Arrestees, like all humans, are unpredict­
able, but arrestees, especially those who resist arrest, 
are highly likely to be under the influence of alcohol or 
other drugs or in a state of rage or panic, rendering 
them all the more unpredictable. An officer attempting 
to deal with such situations obviously must have broad 
discretion. The Common Law Rule gives officers the 
discretion they need to minimize the risks to human life 
and limb.

III.
THE COMMON LAW RULE AND THE ALABAMA 
STATUTE INSURE THAT THE LAW WILL BE A 
POTENT FORCE AGAINST LAWLESSNESS.

Resisting a lawful arrest is an unlawful act, and it 
creates a lawless situation. The question is: Can the
law deal with this situation? The Common Law Rule, 
codified in Section 13A-3-27, says: "Yes." The rule

25



adopted by the District Court in this case says: "No,
not if deadly force is necessary." The various other 
rules proposed in the place of the Common Law Rule say: 
"Maybe."

A decision striking down the Common Law Rule on 
constitutional grounds holds by necessary implication 
that the U.S. Constitution extends its protection to 
certain forms of lawlessness -i.e. any resistance to 
arrest which cannot be overcome by non-deadly force. The 
Constitution ought not underwrite violence and 
lawlessness.

The rejection of the Common Law Rule necessarily 
encourages flight and other forms of resistance to 
arrest. Arrestees who obey the law and surrender will be 
punished for their crimes, while those who successfully 
resist arrest will have, as a practical matter, an 
absolute defense. The state has an interest in 
preventing such absurd results. We all have a vital 
interest in the potency of the law.

IV.
IF THE COMMON LAW RULE AND THE 
ALABAMA STATUTE ARE UNCONSITUTIONAL,
WHAT THEN?

If the ancient Common Law Rule and the various 
statutes based on it are unconstitutional, it is not

26



enough to declare them invalid, without suggesting an 
alternative. It is universally agreed that it is the 
provence of the legislature to establish an appropriate 
rule. However, to "punt" the matter to the legislature 
without guidance would be irresponsible. A legislature 
might pass a dozen laws before finding one which passes 
muster. The constitutional limits on the use of deadly 
force in overcoming resistance to arrest ought to be 
articalated, so that legislatures can know the perameters 
of their discretion. In this section the Interveners 
will suggest what those perameters ought to be.

The Constitution ought not be read as setting out in 
detail the rules governing the use of deadly force in 
overcoming resistance to arrest. If the decades of 
litigation over the Fourth Amendment Exclusionary Rule 
have a lesson to teach, it is this: The Constitution is
not the place for setting out detailed regulations. The 
Constitution should set broad outer limits and leave the 
details to statutes, ordinances and regulations.

What should those limits be? First, they should be 
limits of substance not form. Defining the discharge of 
a firearm as "deadly force," without regard to how or 
with what intent it is undertaken is aggrandizing form 
over substance. Such may be appropriate for a statute or

27



a police regulation, but for constitutional purposes 
deadly force should be defined in terms of the nature of 
the force (Is the force readily capable of causing 
death?), the way in which the force is used (Is it used 
in a manner which carries a grave risk of death?) and 
the intention with which it is used (Did the officer 
intend to kill?). Under such a definition, the discharge 
of a firearm would be counted as "deadly force", if the 
weapon is aimed at the head or torso of a fleeing felon, 
since such would constitute an obvious grave risk of 
death and would evidence an intent to kill. However, a 
shot over the arrestee's head or a shotgun fired from so 
great a distance that the shot could only sting or a shot 
aimed at a non-vital point would not contitute "deadly 
force".

When should an officer be held justified in using 
deadly force to overcome resistance to a lawful arrest? 
The Common Law Rule draws the line at felony-misdemeanor. 
This line, as discussed in Section I, pages 14-15, above, 
is not arbitrary. But, in the interest of certainty the 
line does place on the deadly-force side a few arrests 
where the use of such force may not be entirely 
reasonable, while leaving on the non-deadly-force side a 
few arrests where the use of such force ought to be 
considered justified. It is interesting to note that the

28



critics of the Common Law Rule would preserve the 
felony-misdemeanor line to the extent that it holds an 
officer unjustified in using deadly force and would throw 
it out only to the extent that it holds the officer 
justified. However, if the felony-misdemeanor line is 
unacceptable for one purpose, how is it acceptable for 
the other? If the felony-misdemeanor line is 
unacceptable, then the line ought to be drawn at the risk 
to human life and limb. Obviously, an officer must be 
held justified in taking reasonable steps to protect 
himself or herself, but, this is common self defense a-nd 
has nothing to do with arrest per se. Beyond self 
defense, an officer must be held justified in protecting 
the community, since this is the purpose for which we 
hire these men and women.8* Thus, an officer ought to be 
held justified in using deadly force, if he or she 
reasonably judges that such force is necessary to 
apprehend an arrestee, whom the officer reasonably judges 
to present a serious danger to others involved in the 
incident or to the community as a whole. Such judgment 
could be based on many factors, such as: The nature of 
the crime, whether the arrestee is armed, the nature of 
the resistance, and whether there is reason to believe

8- The District Court in the instant case completely 
ignored the danger an escaped convict or felon could 
present to the community.

29



that the arrestee has coraraitted other crimes, to name 
only a few. Certainly, an arrestee who attacks an armed 
police officer must be presumed willing to attack any 
citizen who gets in his way.

Finally, any rule governing the use of force by 
officers in overcoming resistance to arrest must be 
applied on the basis of what the officers knew, 
reasonably believed and reasonably judged a^ the time 
time of the incident and not on the basis of hindsight. 
The Supreme Court has condemned hindsight judgments of 
warrant magistrates and defense attorneys. Search 
warrants are not to be subjected to d^ novo review.
Illinois V. Gates, ___ U.S. ___, 76 L.Ed.2d 527, 546-547,

U.S.103 S.Ct (1983); Massachusetts v. Upton,
, 80 L.Ed.2d 721, 727, 104 S.Ct, (1984). In

Strickland v. Washington (___ U.S. ___, 80 L.Ed.2d 674,
104 S.Ct. ___ [1984]) the Court rejected hindsight
judgments of the acts and omissions of defense attorneys,
The Court wrote in pertinent part:

"...It is all too tempting for a 
defendant to second guess counsel's 
assistance after conviction or 
adverse sentence, and it is all too 
easy for a court, examining counsel's 
defense after it has proven 
unsuccessful, to conclude that a particular act or omission of counsel 
was unreasonable...

30



" . . . [ a ] court deciding an actual 
ineffectiveness claim must judge the 
reasonableness of counsel's 
challenged conduct on the facts  of 
the p a rticu la r case, viewed as ^  ^he 
time of counsel's c o n d u c t . T 8̂0 

674, 694̂ -695; emphasis 
supplied)

The ru les of these cases are as reasonable as hindsight 
judgments are unreasonable. But, warrant magistrates and 

defense attorneys do not act in the dark nor on 

unfam iliar te rra in  as police o ff ic e rs  commonly do. A 

judge, who is  unsure how to act, can take the matter 

under advisement; a lawyer, whose case takes an 

unexpected turn, can request and w i l l  usua lly  receive a 

recess or continuance. An o ff ic e r  confronting a 

re s is t in g  arrestee must judge and act in a flash . 

Magistrates and lawyers do not act at the r isk  of l i f e  
and limb, po lice  o ffice rs  do. I f  i t  is  wrong, as the 
Supreme Court has held, to judge warrant magistrates and 

attorneys on the basis of h indsight, what fa irness is  

there in so judging police o ff ic e rs ?
To summarize: I f  the Common Law Rule is

unconstitu tional then the constitu tiona l lim its  on the 

use of deadly force in overcoming resistance to arrest 

should be as fo llow s:

31





1. "Deadly force" should be defined as force which 
is readily capable of causing death, which is used in a 
manner which creates a grave risk of death with the 
intention of causing death.

2. Such force may be used by an officer where the 
officer reasonably judges that it is necessary to 
overcome the resistance to lawful arrest of a party, whom 
the officer reasonably judges to be a danger to the 
officer or others involved in the incident or whose 
escape would create a serious risk to the community.

3 . Any application of a rule governing the use of 
force by an officer must be on the basis of what was 
known, reasonably believed and reasonably judged by the 
officer at the time of the incident and not on the basis 
of hindsight.

CONCLUSION
In conclusion, the Interveners respectfully submit 

that the Honorable District Court erred to reversal in 
holding Section 13A-3-27, Code of Alabama, 1975 and the 
Common Law Rule on which it is based, unconstitutional 
and in reading into the United States Constitution a rule 
which forbids any use of firearms in overcoming 
resistance to lawful arrest and limiting the use of such

5 2



force to self defense. For this reason, the Intervenors 
pray that the District Court be reversed on this point 
and that this Honorable Court also issue such other
orders as may be approriate

Respectfully submitted,

d̂ L d.kJL/
CHARLES A. GRADDICK 
ATTORNEY GENERAL 
INTERVENOR

rosEpif^. L.'̂ mArston 111 
^ASSIOTANT ATTORNEY GENERAL 
ATTOymEY FOR INTERVENORS

33



APPENDICIES



CODE OF ALABAMA 
1975

APPENDIX A

VOLUME 12

TiUe 13A 

Criminal Code.

CHAPTER 3. 
DEFENSES.

§ 13A-3-27. Use of force in making an arrest or preventing an escape.

(a) A peace officer is justified in using that degree of physical force which he 
reasonably believes to be necessary, upon a pierson in order:

(1) To make an arrest for a misdemeanor, violation or violation of a crim­
inal ordinance, or to prevent the escape from custody of a person arrested for 
a misdemeanor, violation or violation of a criminal ordinance, unless the 
peace officer knows that the arrest is unauthorized; or
(2) To defend himself or a third person from what he reasonably believes 

to be the use or imminent use of physical force while making or attempting 
to make an arrest for a misdemeanor, violation or violation of a criminal 
ordinance, or while preventing or attempting to prevent an escape from 
custody of a pierson who has been legally arrested for a misdemeanor, viola­
tion or violation of a criminal ordinance.(b) A peace officer is justified in using deadly physical force upon another 

person when and to the extent that he reasonably believes it necessary in order:

55



(1) To make an arrest for a felony or to prevent the escape from custody 
of a person arrested for a felony, unless the officer knows that the arrest is
unauthorized; or(2) To defend himself or a third person from what he reasonably believes 
to be the use or imminent use of deadly physical force.
(c) Nothing in subdivision (a)(1), or (b)(1), or (f)(2) constitutes justification 

for reckless or criminally negligent conduct by a peace officer amounting to an 
offense against or with respect to persons being arrested or to innocent persons 
whom he is not seeking to arrest or retain in custody.
(d) A peace officer who is effecting an arrest pursuant to a warrant is 

justified in using the physical force prescribed in subsections (a) and (b) unless 
the warrant is invalid and is known by the officer to be invalid.
(e) Except as provided in subsection (f), a person who has been direct̂  by 

a peace officer to assist him to effect an arrest or to prevent an escâ  from 
custody is justified in using physical force when and to the extent t^t he 
reasonably believes that force to be necessary to carry out the peace officers 
direction.(f) A person who has been directed to assist a peace officer under arcum- 
stances specified in subsection (e) may use deadly physical force to effect an 
arrest or to prevent an escape only when:

(1) He reasonably believes that force 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(2) He is authorized by the peace officer to use deadly physical force and 
does not know that the peace officer himself is not authorized to use deadly 
physical force under the circumstances.
(g) A private person acting on his own account is justified in using phpical 

force upon another person when and to the extent that he reasonably believes 
it necessary to effect an arrest or to prevent the escape from custody of an 
arrested person whom he reasonably believes has committed a felony and who 
in fact has committed that felony, but he is justified in using deadly physical 
force for the purpose only when he reasonably believes it necessary to defend 
himself or a third person from what he reasonably believes to be the use or 
imminent use of deadly physical force.
(h) A guard or peace officer employed in a detention facility is justified:
(1) In using deadly physical force when and to the extent that he reason­

ably believes it necessary to prevent what he reasonably believes to be the 
escape of a prisoner accused or convicted of a felony from any detention 
facility, or from armed escort or guard;
(2) In using physical force, but not deadly physical force, in all other 

circumstances when and to extent that he reasonably believes it necessary 
to prevent what he reasonably believes to be the escape of a prisoner from 
a detention facility.(3) "Detention facility” means any place used for the confinement, pur­
suant to law, of a person;

36



a. Charged with or convicted of an offense; or
b. Charged with being or adjudicated a youthful offender, a neglected 

minor or juvenile delinquent; or
c. Held for extradition; or
d. Otherwise confined pursuant to an order of a criminal court. (Acts 

1977, No. 607, p. 812, § 630; Acts 1979, No. 79-599, p. 1060, § 1.)

37



F I L E D
IK THE DISTRICT COURT OF THE UNITED STATES FOR THE

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION 1 2 19&4

APPENDIX B

1 n j .  D'r' _ ■A' ■ ■ K

DARRYL PRUITT,

Plaintiff,

V.

THE CITY OF MONTGOMERY; et el., 

Defendants.

)
)
)
)
)
)
)
)
)

ORDER

/I-c’T V CLlr.K

CIVIL ACTION NO. 83-T-903-N

Plaintiff Darryl Pruitt has brought this cause of action under A2 

U.5.C.A. § 1983 and Alabama constitutional and tort lav against defendants 

City of Montgomery, Alabama and Lester Ride, formerly a city police officer.
9Pruitt seeks to recover for injuries be suffered when he was shot by Kidd.

Tnis cause is now before the court on Pruitt's May 17, 196^, motion 
for summery judgment and the defendants' May 29, 1984, motion for suiamary 

judgment. For reasons which follow, Pruitt's motion is cue to be granted in 

part and denied in pare, and the defendants' motion is due to be denied.

I.

On the night of September 2, 1982, Officer Kidd and another officer 

responded to radio reports of a suspected burglary in progress in a building 
on West Fairv’-iew Avenue in Montgomery. The suspects were described as black 

males. As Kidd walked near the rear of the building he encountered Pruitt, 
who is black, emerging from a bush. Pruitt immediately began to flee on

38



foot. Kidd ran a feu steps after Pruitt before deciding that he uould be 

unable to overtake Pruitt. Kidd then shouted directions to Pruitt to "halt» 

police". When Pruitt failed to atop, Kidd fired two shots at Pruitt from a 

twelve-gauge shotgun. At least one of the shots struck Pruitt in the area of 

the buttocks, bringing him to the ground. Pruitt was searched at the scene 

and found to be unarmed.
Pruitt was subsequently arrested and charged with commission of a 

rape that had allegedly occurred in the building. A Montgomery County grand 

jury- failed, however, to return an indictment on this charge. Also, there 

was no burglary as sxispected.
The regulations of the Montgomery City Police Department authorize 

the use of deadly force if necessary to stop a fleeing felony suspect. These 

regulations are based upon an Alabama statute permitting lav enforcement 

officers to use deadly force ” [t]o make an arrest for a felony or to/prevent the 
escape from custody of a person arrested for a felony, unless the officer 

know’s the arrest is xinauthorized." 1975 Ala. Code § 13A.-3-27 (Supp. 1982).

Kidd testified by deposition that, relying on the State and City’s 

deadly force policy, he shot Pruitt to prevent him from escaping arrest.

Kidd stance^ that when he fired his weapon he considered Pruitt a prime 

burglary suspect, but he did not believe Pruitt posed a danger of death or 

bodily injury to anyone. Kidd stated that he would not have fired had he
V •believed that other officers responding to the call would have intercepteo 

Pruitt and effected an arrest.

39



The parties have moved for sigmar̂ ’ judgment on the issue of the 

of the City and Kidd for violation of Pruitt's civil rights under 
{ 1983 end Alebaae constitutional end tort lav.

- 2-

Smnmary judgment is appropriete only if "there is no genuine issue 

as to any material fact and ... the moving party is entitled to judgment as a 

matter of law." Fed. R. Civ. P. 56(c). Furthermore, even when the 

underlying facts are undisputed, summary judgment should not be granted 

unless reasonable minds could not differ on the inferences to be drawn from 

those facts. See Warrior Tombigbee Transportation Co. v. K/V Nan Fung. 695 

F.2d 1294, 1296-97 (Uth Cir. 1983). Tnis is an appropriate case for summary 
judgment.

I I .

1. Alabama lew defines deadly force as "(fjorce which, under the 
circumstances in which it is used, is readily capable of causing death or 
serious physical injury.*' 1975 Ala. Code § 13A-3-20(2)(Supp. 1982). The 
Model Penal Code definition of deadly force is

force which'the actor uses with the purpose 
of causing or which he knows to create a 
substantial risk of causing death or serious 
bodily harm. P u r p o s e l y  firing a firearm in 
the direction of another person or at a 
vehicle in which another person is believed 
to be constitutes deadly force.

Model Penal Code § 3.11(2)(1962). See Mattis v. Schnarr, 547 F.2d 1007,
1009 n.2 (8th Cir. 1976), vacated as moot sub nom., Ashcroft v. Mattis, 431 
U.S. 171, 97 S.Ct. 1739 (1977). Under these definitions of deadly force, the 
defendants’ contention that Kidd was net using deadly force because he 
intended to and did only wound Pruitt is untenable.

40



Id Ayler v. Hopper, 532 F. Supp. 19fc (K.D./JLa. I9E1) , tne court 

held that use of deadly force to stop a fleeiug or escaping felon 
constituted a civil rights violation actionable under § 1983 "unless the 

official has good reason to believe that the use of such force is necessary 

to prevent inccinent» or at least a substantial likelihood o-, decth o. greet 

bodily ham." at 201. See also Garner v. Memphis Police Department, /lO

F.2d 240» 246 (6th Cir. 1983), cert, granted, ___U.S.____, 104 S.Ct. 1589

-3-
(19BA); Mattis V. Schnarr. 547 F.2d 1007, 1020 (8th Cir. 1976), v*cated as 

moot tub pom., Ashcroft v. Mattis. 431 U.S. 171, 97 S.Ct. 1739 (1977). A^ler 

held S 13A-3-27 of the 1975 Code of Alabama unconstitutionel to the extent 
that it permitted use of deadly force in other circumstences. 532 F. Supp.

at 201.
Officer Kidd's testimony about the shooting is clear and

straightforward and permits only one reasonable conclusion: Kidd shot-Pruitt

to prevent him from escaping arrest, and not because he posed a danger of
death or bodily injury to anyone. Kidd's use of deadly force under these

circumstances did not meet the Ayler standard and, therefore, violated
2Pruitt s civil rights.

2. In Gamer v. Memphis Police Department, 710 F.2d 240, 246 (6tb
Cir. 1983), cert. granted, ___ U.S. ___, 104 S.Ct. 1589 (1964), the Sixth
Circuit stated that "officers may be justified in using deadly force if the 
suspect has committed a violent crime or if they have probable cause to 
believe that be Is armed or that he vill endanger the physical safety of 
others if not captured." Id. at 246. Kidd’s use of deadly force fails to 
meet the constitutional standard announced in Garner.

41



Municipalities are subject to ( 1963 liability when a cognizable 

injury is inflicted by "execution of a governnent’s policy or custoc, whether 
made by ite lawmakers or by those whose edicts or acts may fairly be said to
represent official policy---" Monell v. Department of Social Ser\^ices. 436

D.S. 658, 694, 98 S.Ct. 2018, 2037-36 (1976). ^  a3^, e.g.. William v.

City of Valdosta. 689 F.2d 964, 969 (11th Cir. 1982). Here, the policy of 

the Montgomery City Police Department authorized the unconstitutional use of

force, and Pruitt s shooting was merely an execution of this policy.
y

Taylor v. Collins, 574 F. Supp. 1554, 1559 (E.D.Mich. 1963). The City of 

Montgomery is, therefore, liable to Pruitt under « 1983 for the unconsti-

-4-

tutional use of deadly force upon him.

Kidd, on the other hand, maintains that, even if his use of deadly 

force was unconstitutional, be is "qualifiedly immune’’ from any liability. 

Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727 (1982).^ The court 

declines to reach this issue at this time. Pruitt has informed the court 

that he may dismiss his claims against Kidd in the event the city is found 
liable on the § 1983 claim.

Pruitt has also asserted causes of action under Alabama consti­
tutional and tort law under the pendent claims doctrine of United Mine

3. The only issue left for trial on Pruitt’.s f 1983 claim against 
the City is the amount of damages.

4. Tne good faith or qualified immunity, if any, of a municipal 
agent executing city policy does not alter the municipality’s liability.
Owen V. City of Independence, 445 U.S. 622, 100 S. Ct. 1398 (1980).

42



Workers v. Gibbs, 3B3 U.S. 715, 86 S.Ct. 1130 (1965). In light of the 

court's disposition of the i 1983 clein ageinst the City, the court does not 
see a need to address the state law cleias at this time.

Accordingly, for the reasons stated above, it is ORDERED:

(1) That the plaintiff s May 17, 198^, motion for summary judgment 
be and it is hereby granted in his favor end against defendant City of 

Montgomery/ Alabama on the issue of liability under 42 U.S.C.A.- § 1983; and 
that said motion be and it is hereby denied in all other respects; end

(2) That the defendants' May 29, 1984, motion for summary judgment 
be and it is hereby denied. ''

-5-

It is further ORDERED that this cause be end it is hereby set for a 
second pretrial conference on June 13, 1984, at 4:00 p.m. at the federal 

courthouse in Montgomery, Alabama. The clerk of the court is DIRECTED to 
notify the parties by telephone.

DONE, this the 12th day of June, 1984.

UKITED STATES DISTRICT JUDGE

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE P   ̂ L E D  

MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION 2 6 B84

DARRYL PRUITT,
Plaintiff,

V.

THE CITY OF MONTGOMERY; et al., 

Defendants.

)
)
)
)
)
)
)
)
)

ORDER

THOMAS C. CAVER, CIE'T.A
BY ------- ----- --------------------------------------------

DEPUT  ̂ CLERK

CIVIL ACTION NO. 83-T-903-N

The court is of the opinion that the order entered in this cause on 

June 12, 198A, should be amended by substituting the following paragraph for 

the final paragraph at the end of Part I of the order, appearing on page 2:
Kidd testified by deposition that, relying 

on the State and City’s deadly force policy, he 
shot Pruitt to prevent him from escaping arrest.
Kidd testified that, when he first encountered 
Pruitt emerging from a darkened bush, Pruitt 
took approximately three steps toward him.
Kidd stated 'that at that moment he feared Pruitt 
was about to attack him so he raised his shotgun 
to "high port", whereupon Pruitt veered and began 
running away. Kidd stated that he began to give 
chase but quickly became convinced that he could 
not overtake Pruitt and effect an arrest. At 
that point, Kidd shouted a command for Pruitt to 
stop and fired when that command went unheeded.
Although Kidd testified that he initially feared 
an attack from Pruitt, his deposition testimony 
repeatedly indicates that Kidd's own subjective 
concern was for effecting Pruitt's arrest, and 
not for his own or another's safety.

Accordingly, it is ORDERED that the June 12, 1984, order be and it 

is hereby amended as indicated above.
DONE, this the 26th day of July, 1984.

W



CERTIFICATE OF SERVICE
I, Joseph G. L. Marston III, Assistant Attorney 

General of Alabama and Attorney for the Interveners 
herein, do hereby certify that on this day of
December, 1984, I did serve copies of the foregoing on 
the attorneys for the other parties by mailing the same 
to them first class postage prepaid and addressed as 
follows:

Honorable Robert C. Black 
Attorney at Law 
P. 0. Box 116
Montgomery, Alabama 36195-2401
Honorable N. Gunter Guy 
Attorney at Law 
City of Montgomery P. 0. Box 1111 
Montgomery, Alabama 36192
Honorable Ira B. Burnin &
Honorable Dennis Charles Sweet III 
Attorneys at Law 
P. 0. Box 2087
Montgomery, Alabama 36102-2087

L. MARSTON 111
ASSISTANT ATTORNEY GENERAL

ADDRESS 0F COUNSEL:
Office of the Attorney General 
250 Administrative Building 
64 North Union Street 
Montgomery, Alabama 36130 
(205) 834-5150

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