# Petition of Lloyd Clifton for a Writ of Habeas Corpus v. Gene Cox, Sheriff of Humboldt County, California

> Court of Appeals for the Ninth Circuit · March 4, 1977 · 549 F.2d 722

URL: https://www.frixlaw.com/law-library/cases/9463504

## Case

- **Full name:** Petition of Lloyd CLIFTON for a Writ of Habeas Corpus, Petitioner-Appellee, v. Gene COX, Sheriff of Humboldt County, California, Respondent-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** March 4, 1977
- **Citations:** 549 F.2d 722; 1977 U.S. App. LEXIS 14455
- **Precedential status:** Published
- **Opinion:** Concurrence by Browning
- **Judges:** Browning, Merrill, Lay
- **Cited by:** 52 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9463504

## How later opinions describe it (automated extraction)

- 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”
- 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”

## Opinion text

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9463504. Public record. Not legal advice.