finding that the Court could not “on the basis of the overall record conclude that the[] findings [of the district court judge] are clearly erroneous”
How later courts described this case
- finding that the Court could not “on the basis of the overall record conclude that the[] findings [of the district court judge] are clearly erroneous”
- granting motion to dismiss indictment where “resolution of [ ] factual conflicts” regarding when the suspect “took flight” was “immaterial to the resolution of the ultimate issue of whether petitioner employed means which he could consider reasonable in the discharge of his duty”
- noting that immunity “does not require [an officer] to show that his action was in fact necessary or in retrospect justifiable, only that he reasonably thought it to be”
- observing that when the defense applies “the prosecution has no factual basis upon which to prosecute [the defendant] and the entire proceeding is a nullity”
Written by the judges who cited it.
The opinion
BROWNING, Circuit Judge,
concurring:
I concur because I believe the BNDD regulations can be reasonably read as authorizing petitioner’s conduct as found by the district court.
Although the regulations prohibit an agent from firing “at fleeing suspects,” they impliedly authorize firing at a person “to protect [the agent’s] own life or that of some other person.” It was not unreasonable for the agent to believe the regulations, read together, authorized him to shoot a fleeing suspect who posed a danger to the life of the agent or other person. The two provisions are to be read together, not as independent, absolute commands. An agent would not be required to remain passive if a suspect fired as he fled. The present case is only a slight step removed. The district court found that petitioner reasonably believed the suspect had shot Agent Filben and was armed and dangerous, and that if the suspect reached the cover of the woods the lives of the pursuing officers would be endangered. The court further found that petitioner acted honestly and reasonably in shooting the suspect. The findings are not clearly erroneous. In light of the findings, I conclude the agent acted within the scope of his authority. See In re Fair, 100 F. 149, 154-55 (D.Neb.1900).