Appendix — Burton v. Waller

Supreme Court brief1975

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CIVIL RIGHTS ACT OF 1871

Section 1. Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13

[42 U.S.C. § 1983]

Every person who, under color of any statute, ordin-

ance, regulation, custom, or usage, of any State or Terri-

tory, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction there-

of to the depriv. ation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity, or other

proper proceeding for redress.

CIVIL RIGHTS ACT OF 1866

Section 3. Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27

[42 U.S.C. § 1988]

The jurisdiction in civil and criminal matters conferred

on the district courts by the provisions of this chapter and

Title 18, for the protection of all persons in the United

States in their civil rights, and for their vindication, shall

be exercised and enforced jn conformity with the laws of

the United States, so far as such laws are suitable to carry

the same into effect; but in all cases where they are not

adapted to the object, or are deficient in the provisions

necessary to furnish suitable remedies and punish offenses

against law, the common law, as modified and changed by

the constitution and statutes of the State wherein the court

having jurisdiction of such civil or criminal cause is held,

so far as the same is not inconsistent with the Constitution

and laws of the United States, shall be extended to and

govern the said courts in the trial and disposition of the

cause, and, if it is of a criminal nature, in the infliction of

punishment on the party found guilty.

TOA nc ea

MISSISSIPPI WRONGFUL DEATH ACT

Miss. Code Ann. § 1453 (1942) [now Miss. Code Ann.

§ 11-7-13 (1972) ]}

Whenever the death of any person shall be caused by

any real wrongful or negligent act or omission, or by such

unsafe machinery, way or appliances as would, if death

had not ensued, have entitled the party injured or damaged

thereby to maintain an action and recover damages in

respect thereof, or whenever the death of any person shall

be caused by the breach of any warranty, express or implied,

of the purity or fitness of any foods, drugs, medicines, bev-

erages, tobacco or any and ali other articles or commodities

intended for human consumption, as would, had the death

not ensued, have entitled the person injured or made ill or

damaged thereby, to maintain an action and recover dam-

ages in respect thereof, and such deceased person shall have

left a widow or children or both, or husband or father or

mother, or sister, or brother, the person or corporation, or

both that would have been liable if death had not ensued,

and the representatives of such person shall be liable for

damages, notwithstanding the death, and the fact that

death was instantaneous shall in no case affect the right

of recovery. The action for such damages may be brought

in the name of the personal representative of the deceased

person for the benefit of all persons entitled under the law

to recover, or by widow for the death of her husband, or

by the husband for the death of the wife, or by the parent

for the death of a child, or in the name of a child, or in the

name of a child for the death of a parent, or by a brother

for the death of a sister, or by a sister for the death of a

brother, or by a sister for the death of a sister, or a brother

for the death of a brother, or all parties interested may

join in the suit, and there shall be but one suit for the same

death which shall ensue for the benefit of all parties con-

— ais. ee ee ee ee ee

eee EEE

* he Sh TREE LE SOLANA DS YIELD GEE PARE POLIO

cerned, but the determination of such suit shall not bar

another action unless it be decided on its merits. In such

action the party or parties suing shall recover such damages

as the jury may determine to be just, taking into considera-

tion all the damages of every kind to the decedent and all

damages of every kind to any and all parties interested

in the suit.

This section shall apply to all personal injuries of serv-

ants and employees received in the service or business of

the master or employer, where such injuries result in death,

and to all deaths caused by breach of warranty, either ex-

press or implied, of the purity and fitness of foods, drugs,

medicines, beverages, tobacco or other articles or commodi-

ties intended for human consumption. Damages recovered

under the provisions of this section shall not be subject to

the payment of the debts or liabilities of the deceased, except

as hereinafter provided, and such damages shall be dis-

tributed as follows:

Damages for the injury and death of a married man

shall be equally distributed to his wife and children, and if

he has no children all shall go to his wife; damages for the

injury and death of a married woman shall be equally dis-

tributed to the husband and children, and if she has no chil-

dren all shall go to the husband ; and if the deceased has no

husband or wife, the damages shall be equally distributed

to the children; if the deceased has no husband, nor wife,

nor children, the damages shall be distributed equally to the

father, mother, brothers and sisters, or such of them as the

deceased may have living at his or her death. If the de-

ceased have neither husband, or wife, or children, or

father, or mother, or sister, or brother, then the dam-

ages shall go to the legal representative, subject to debts

and general distribution, and the fact that the deceased was

instantly killed shall not affect the right of the legal repre-

sentative to recover. The provisions of this section shall

RR ts co |

CD el iin, ee AE ei AN ABE eo . . ’

eee ee ek

apply to illegitimate children on account of the death of the

mother and to the mother on account of the death of an

illegitimate child or children, and they shall have all the

benefits, rights and remedies confer1ed by this section on

legitimates.

If the deceased be illegitimate and shall leave neither

mother, child nor lawful heirs, then all the provisions of

this Section shall extend and apply to the legal representa-

tives, and the other natural blood relatives of the deceased

the same as if they were his legitimate relatives and heirs,

excepting his father and his father’s relatives, unless they

be full brothers or sisters of deceased, or their heirs.

Any rights which a blood parent or parents may have

under this Act are hereby conferred upon and vested in

an adopting parent or adopting parents surviving their

deceased adopted child, just as if the child were theirs by

the full blood and had been born to the adopting parents

in lawful wedlock.

FEDERAL QUESTION JURISDICTION

Act of July 25, 1958, Pub. L. No. 85-554, § 1, 72 Stat.

415 [28 U.S.C. § 1331]

(a) The district courts shall have original jurisdiction

of all civil actions wherein the matter in controversy ex-

ceeds the sum or value of $10,000, exclusive of interest and

costs, and arises under the Constitution, laws, or treaties

of the United States.

(b) Except when express provision therefor is other-

wise made in a statute of the United States, where the

plaintiff is finally adjudged to be entitled to recover less

than the sum or value of $10,000, computed without regard

to any setoff or counterclaim to which the defendant may

be adjudged to be entitled, and exclusive of interests and

costs, the district court may deny costs to the plaintiff and,

in addition, may impose costs on the plaintiff.

Crane rs LS TT TS LN MT TY

CIVIL RIGHTS JURISDICTION

Act of September 9, 1957, Pub. L. No. 85-315, § 121, 71

Stat. 637 [28 U.S.C. § 1343]

The district, courts shall have original jurisdiction of

any civil action authorized by law to be commenced by any

person:

(1) To recover damages for injury to his person or

property, or because of the deprivation of any right or

privilege of a citizen of the United States, by any act done

‘n furtherance of any conspiracy mentioned in section 1985

of Title 42;

(2) To recover damages from any person who fails to

prevent or to aid in preventing any wrongs mentioned in

section 1985 of Title 42 which he had knowledge were about

to occur and power to prevent;

(3) To redress the deprivation, under color of any

State law, statute, ordinance, regulation, custom or usage,

of any right, privilege or immunity secured by the Consti-

tution of the United States or by any Act of Congress pro-

viding for equal rights of citizens or of all persons within

the jurisdiction of the United States ;

(4) To recover damages or to secure equitable or other

relief under any Act of Congress providing for the pro-

tection of civil rights, including the right to vote.

SAMA RTL eT |

—.

~ BURTON v. WALLER»

Cite as 502 F.2d 1261 (1974)

7261

Myrtle Green BURTON, Individually and

in her Capacity as Representative of

James Earl Green, Deceased, et al.,

Piaintiffs-Appellants,

Vv.

William L. WALLER, Individually and as

Governor of the State of Mississippi,

et al, Defendants-Appellees. -

No. 72-2311.

“United States Court of Appeals,

Fifth Circuit.

Oct. 18, 1974.

Damages were sought for deaths

ard injuries from gunfire laid down by

a detachment of officers who were on a

gtate college campus as a result of stu-

dent disorders. Defendants prevailed in

the United States District Court for the

Southern District of Mississippi at Jack-

son, Walter L. Nixon, Jr., J., after jury

trial, and the plaintiffs appealed. The

Court of Appeals, Godbold, Circuit

Judge, held that the state and city en-

joyed sovereign immunity under the law

of Mississippi. Evidence made a ques-

tion of fact for the jury whether partic-

ular officers acted reasonably under the

privilege of self-defense or privilege re-

lating to riot, and that even if one or

more of seven particular officers failed

to bring themselves within such a privi-

lege, the state of the evidence respecting

causation raised a jury question preclud-

ing directed verdict of liability. Alleged

failures of supervisory officers on the

scene to perform various functions

raised jury questions and could not be

the basis for: directed verdicts for plain.

tiffs.

Affirmed.

1. Courts €263(2)

Whee state and federal claim:

arose from same nucleus of operativ

facts, federal court had jurisdiction ove:

state claim.

ov Maaaas Sh A ee Laas i aR

OD er ev

mont Sow WY

Ree ee ee ee ee ae

’ gult of student disorders.

| re

vege cate

2. Courts 303(1)

By virtue of the Eleventh Amend-

ment, state was immune from suit

brought under 1871 Civil Rights Act.

42 US.C.A. § 1983; ‘U.S.C.A.Const.

Amend. 1L..

3. Municipal Corporations €747(3)

Under Mississippi law, city was im-

mune from liability for torts of its po-

lice officers. ing? ‘

4. Civil Rights €13.8(3)

‘City was immune from suits

brought under 1871 Civil Rights Act.

42 U.S.C.A. § 1983.

5. Civil Rights £13.10 ;

Privilege of individual police offi-

cers to fire in self-defense or to quell

riot was common-law defense which

could be asserted in response to action

zunder 1871 Civil Rights Act to same ex-

tent that it was relevant to pendent Mis-

sissippi law claim. 42 U.S.C.A. §§ 1983,

1988 ;" Code 1942, § 2361.5-01, subd. A.

6 Civil Rights ©13.13(3)

Mississippi and general tort law re-

quirements respecting proof of causation

were applicable to claim against police

officers in action under 1871 Civil

“Rights Act, arising out of deaths and in-

juries from gunfire laid down by offi-

cers who were on college campus as re-

42 U.S.C.A. §

1983; Code 1942, §§ 11-7-13, 2361.5-01,

subd. A.

7. Weapons ©18(1)

Mississippi imposes highest degree

of care upon person handling firearms.

8. Assault and Battery 13

Death 21

Under general principles of tort

law, one is entitled as matter of self-de-

fense to employ deadly force to repel

deadly force, and, under Mississippi law,

retreat is not prerequisite to use of

deadly force. ; '

9. Riot 9

Under general principles, one may

use deadly force for purpose of sup-

pressing riot or preventing other per-

sons from participating in it, if riot is

(ea td te a Ie ee oe

on:

PANTS Cie LIT Rt se

one which threatens death or serious |

bodily harm. Code 1942, § 2361.5-01,

subd. A.

10. Riot 9

Under Mississippi law, in order for

one to have right to use deadly force to

suppress riot or prevent another from

participating in it, it is not necessary

that avowed purpose of participants in

assemblage be to accomplish death or se- |

rious bodily harm but that conduct of

participants is such as to create proba-

bility or even possibility of such conse-

quences. Code 1942, § 2361.5-01, subd.

li. Weapons ©18(2)

For defense of privilege to quell

riot, abserice of disorderly acts of per-

sons in crowd at precise moment when |

plaintiffs were killed or injured by offi- |

cers’ gunfire was not determinative, and

where prior to time firing began numer-

ous officers had been struck by missiles,

and some of them injured and some |

felled by bricks and sniper had fired, it

was jury question whether riot was one

which threatened death or serious bodily

harm though, at precise time firing by

officers began, crowd was beginning to

disperse on orders and tear gas was be-

lieved unnecessary. Code 1942, § 2361.-

5-01, subd. A.

In action arising out of deaths and

injuries from officers’ firing of guns on

occasion of student disorders on college

campus, privilege of employing deadly |

force to subdue riot was not made inap-

plicable by defense counsel's opening ©

statement and argument that his clients

did not rely upon justification of quell-

ing riot or by fact that no officer in

question characterized his firing in

riot-suppression terms.

2361.5-01, subd. A.

Under Mississippi law, privilege to

suppress riot is not unrestrained but is

Figs hy Shee

use deadly force in self-defense or to ©

4s Sate Swakiieey S

Code 1942, §

Sarre cola. a

Cite ax 502 F.2d 1261 (1974)

subject to limitations of scope and of

manner of exercise. Code 1942, § 2361.-

5-01, subd. A.

14. Assault and Battery 13

. Under Mississippi law, when self-

defense is claimed, actor is not privi-

leged to use any means intended or like-

ly to cause bodily harm in excess of that

which he correctly or reasonably believes

to be necessary for his protection; actor

must consider whether lesser force -will

prevent apprehended harm.

15. Assault and Battery 13

Death 21

Under Mississippi law, privilege to

use deadly force in self-defense does not

entitle privileged person to strike with-

out regard to risk of harm to third per-

sons.

16. Riot 9

Under Mississippi-law, actor privi-

leged to use deadly force to quell riot

_may not use means intended or likely to

cause bodily harm in excess of that

which he correctly or reasonably believes

to be necessary to quell riot or to dis-

suade others from participating. Code

1942, § 2361.5-01, subd. A.

17. Riot @—9

Under Mississippi iw one having

privilege to use force to quell riot but

exceeding scope of conduct allowed by it

is liable for so much of force exerted by

him as is excessive, and when it is not

possible to separate harm caused by au-

thorized force and that by excess, actor

is liable for all the harm.

18. Municipal Corporations <-742(5)

Under Mississippi law, training of

police officers in crowd contro] and re-

lated subjects, if it was to be given any

weight in action for deaths and injuries

from gunfire in student disorders, was

no more than probative of correct stand-

ard of officers’ care, and was not conclu-

sive. Code 1942, § 2361.5-01, subd. A.

19. Municipal Corporations <-744

Privilege of police officers, under

Mississippi law, to fire at sniper or to

engage in defensive fire to cause him to

wus ee hs eas ee

stop firing, to stay down and een t in

place was subject to limitation that offi-

cer engaging in such fire was liable if

he realized or should have realized that

his acts created unreasonable risk of

harm to third persons. Code 1942, §

2361.5-01, subd. A.

20. Civil Rights 13.14

In civil rights action arising out of

deaths and injuries from gunfire laid

down by detachment of officers who

were on college campus as result of stu- —

dent disorders, evidence made question

of fact for jury, as to some officers,

whether they acted reasonably under ©

privilege of self-defense or privilege to

quell riot. 42 U.S.C.A. § 1983; Code

1942, § 2361.5-01, subd. A.

21. Civil Rights 13.14

In civil rights action for deaths and

injuries sustained from gunfire laid

down by detachment of officers who

were on college campus as result of stu-

dent disorders, even if one or more of

seven particular officers failed to bring

themselves within privilege of self-de-

fense or of quelling riot, state of evi-

dence respecting causation raised jury

question on causation. 42 U.S.C.A. §

1983; Code 1942, § 2361.5-01, subd. A.

22. Torts 27

Under usual burden under Missis-

sippi law, plaintiff must introduce evi-

dence affording reasonable basis for

coneluding that it is more likely than

not that conduct of defendant was sub-

stantial factor in bringing about harm

suffered by plaintiff.

23. Negligence 61(1) -

Under law of Mississippi, no recov-

ery can be had where there is no show-

ing which of several possible causes, in-

cluding some not involving negligence of

party charged, produced injury.

24. Municipal Corporations 744

Under Mississippi law, actions of

law enforcement detachment, each mem-

ber of which had individualized authori-

ty to act against sniper fire, were not

consistent with concepts of joint enter-

prise liability.

NEN SLES PION TT TE LO iO Aiea

Paitin ane Dn he Sodan ae

25. doint Adventures 1.44, 15,7

Under Mississippi law, joint enter-

prise theory of liability arises by analo-

gy to law of partnership, usually by con-

tract, express or implied, and under cir-

cumstances in’ which each participant

has equal voice in conducting enterprise.

26. Joint Adventures <8

Whether joint enterprise exists is

question for jury. .°

27. Civil Rights 13.14

In civil rights action arising out of

death and injuries from gunfire laid

down by detachment of state and city

officers who were on college campus as

result of student disorders, alleged fail-

ures of supervisory officers on scene to

perform various functjons raised jury

questions of supervisory officers’ liabili-

ty for failure to exercise command func-

tions. 42 U.S.C.A. § 1983; Code 1972, §

45-3-21; Code 1942, § 2361.5-01, subd.

A. ot, eM Bh.

28. Civil Rights ©13.7; 13.14

Commissioner, responsible for regu-

lations and training of state highway

patrolmen, was not subject to absolute

liability if procedures or training for

riot control proved to be deficient but

only for due care in performance of his

duties, and due care was jury issue in

civil rights action brought by persons

injured by patrolmen during civil disor-

der. 42 U.S.C.A. § 1983; Code 1972, §

45-3-21.

29. Riot 9

Individual officer defendants who

had prepared lesson plans for riot train-

ing of state patrolmen, submitted plans

to official for approval and then con-

ducted training pursuant thereto were

not liable as a matter of law for alleged

failure to.perform functions, allegedly

resulting in deaths and injuries during

student disorders. 42-U.S.C.A. § 1983;

Code 1972, § 45-3-21; Code 1942, §

2361.5—0!, subd. A.

30. Weapons @18(2)

Under Mississippi law, officers who

+ fired during nares disorders - not

CAE GL LL PPLE TILL TEN ME, erage

MMOD owe net

have burden of proving freedom from

fault; plaintiffs had burden of proving

by preponderance of evidence that some

or all of defendants fired their weapons

wrongfully or negligently. Code 1942, §

2361.5-01, subd. A.

Wayne A. Cross, Ralph L. McAfee,

New York City, for Burton and others.

George Peach Taylor, Lawyers’ Com-

mittee for Civil Rights Under Law,

Constance Iona Slaughter, James M.

Abram, Jackson, Miss., Dale Broeder,

Lake Oswego, Or., James Reif, Jackson,

Miss., for plaintiffs-appellants.

Robert G. Nicho!s, Jr., Rufus Creek-

more, John E. Stone, Jackson, Miss., for

Davis and others.

William A. Allain, Asst. Atty. Gen., A.

F. Summer, Atty. Gen. of Miss., Charles

A. Marx, Jackson, Miss., for Highway

Patrol, Williams and others.

Robert E. Hauberg, U. S. Atty., Jo-

seph E. Brown, Jr., Asst. U. S. Atty.,

Jackson, Miss. for F.B.I.

Roger Googe, Jr., Sp. Asst. Atty. Gen.,

Jackson, Miss., for defendants-appellees.

Before JONES, GODBOLD and IN-

GRAHAM, Circuit Judges.

GODBOLD, Circuit Judge:

This is a civil suit seeking recovery of

damages for the deaths of two black per-

sons and injuries to three others from

gunshot wounds suffered on the campus

on Jackson State College in Jackson,

Mississippi, on the night of May 15,

1970. ‘These five persons, plus at least

nine other blacks who were wounded but

are not parties to the suit, were struck -

by gunfire laid down by a detachment of

officers who were on the campus as a

result of student disorders.

[1] The law enforcement detachment

from which the gunfire came consisted

of 69 persons, from the Mississippi

Highway Safety Patrol (MHP) and the

PEE PE ERIS CR cele

sar ZS Pr OE. FBT A

- eres

ee A et ANG POP TIMER

Jackson Police Department (JPD). Suit

was brought against all members of the

detachment, the State of Mississippi, the

City of Jackson, and ..amerous other

persons not present at the scene but

having official connections with the

State, the city, MHP and JPD.' At trial

a number of defendants who were mem-

bers of the detachment, all of them non-

supervisory personnel, testified. that

they did not fire their weapons, and

prior to submission of the case to the

jury they were dropped as defendants

for want of proof. The composition of

the detachment was as follows:

—Forty-three persons from the MHP.

Of these, 38 (35 patrolmen and three su-

pervisory officers) admitted firing their

weapohs and ,remained in the case as de-

fendants.. Also remaining as a defend-

ant was MHP Inspector Lloyd Jones,

who was the highest ranking MHP offi-

cer present but who did not fire. The

remaining patrolmen testified they did

‘not fire and were dropped as defendants.

—Twenty-six persons from the JPD.

Five admitted firing and remained as

defendants. Also remaining as a de-

fendant was JPD Lieutenant. Warren

Magee, who was present and in com-

mand of the entire detachment but did

not fire. Other JPD officers present

testified they did not fire and were

dropped as defendants.

Also remaining in the case as submit-

ted to the jury were the State of Mis-

sissippi, the City of Jackson, and

Commissioner Crisler?. ‘ —

In the three-week jury trial the plain-

tiffs offered, in addition to their own

1. The suit was brought under 42 U.S.C. §

1983, the Mississippi Wrongful Death Act,

Miss.Code Ann. 4 1453 (Now Mias.Code

1972 Ann. § 11-7-13), and the Mixsissippi

common law. * Federal jurisdiction is con-

ferred by the §- 1983 claim. The federal

court hax jurisdiction over the state claim

becauxe it and the federal claim arise from

the xame nucleus of operative facts. Anser-

son v. Nosser, 438 F.2d 183, 188-189 (CA 5,

1971). modified on rehearing on other

grounds, 456 F.2d 835 (CA 5, 1972) (en

banc).

testimony, that of numerous Jackson

State students, several FBI representa-

tives, officers in charge of training for

the JPD, the MHP and the Mississippi

National Guard, and an outside expert

on police procedures for crowd control.

Plaintiffs called as adverse witnesses all

individual officers and supervisory offi-

cers present at the scene and Commis-

sioner Crisler.

Sy ie nh D> te ws Cle tin nl Sa

PO LO

Cite ax 502 F.2d 1261 (1974)

Re Re eA CLS a Lam

Tee

Almost all of the testi- ©

mony regarding the conduct of each in- |

dividual officer at the time of the shoot- |

ing, and all of the testimony as to who

did and who did not join in the firing,

came from each officer himself as an ad- —

verse witness. Thus all non-supervisory

officers who remained in the case as de-

fendants did so on the basis of each’s

admission from the witness stand that

he fired. All officers who denied firing

were dropped as defendants on the basis

of their own testimony (except non-fir- _

ing supervisory officers who were

claimed to have failed to discharge su-

pervisory duties).

At the close of the evidence plaintiffs

moved for directed verdicts on the issue

of liability, and the trial judge reserved

decision. The jury returned a general

verdict for all defendants. . The District

Judge then denied the directed verdict

motions and motions for judgment

n/o/v. In his accompanying bench opin-

ion he stated that he considered the city

and state to be immune from suit.

We have untangled as painstakingly

as we are able the complex web of !egal

and factual issues. Having done so, we

find no reversible error in the trial

judge’s rulings of law or in his submis-

2. Among those defendants not present at the

scene but having some connection with the

city or state at the time of the shooting, and

droppetl from the case by plaintiffs, were

John Bell Williams, Governor of Mississippi ;

Russell Davix, Mayor of Jackson; James D.

Gardner, Chief of the MIIP; M. BL. Pierce,

Assistant Chief of the JI’); Woods String-

er, Chief Inspector of the Northern District

of MIIP.

BEAN PEON ELL AL ITP LOOT POLLS VE BN Te ETM BI: ELLE LOT CLT Liles em

Tiss

“

sion of the isues to the jury, and we af-

firm.

Our inquiry into the facts and the law

will follow this pattern:

A. The facts.

B. The effect of the gunfire.

C. Immunity from suit of the state

and the city.

D. - Sources of liability.

E. Liability of officers who fired.

F. Liability of individuals on other.

grounds.

G. Jury charges—and some loose

ends. ¥

H. Conclusion.

is i TPR eet

502 FEDERAL REPORTER, 2d SERIES

A. THE FACTS.

Because plaintiffs claim that the court

erred in denying their motions for di-

rected verdicts and judgments n/o/v, the

facts must be set out in detail, with all

reasonable inferences in favor of defend-

ants.

1. The physical layout.

Jackson State College is a virtually all

black four-year college with approxi-

mately 4,300 students, located in Jack-

son, Mississippi. The cznpus is bisect-

ed along its east-west line by Lynch

Street, a major thoroughfare. Alexan-

der Hall, the women’s dormitory at

which the shootings in issue occurred, is

on the north side of Lynch Street. Most

of it is pictured in the photograph PX

45.

Almost directly across from it and on

* the south side of Lynch Street is Rob-

' erts Dining Hall.

Alexander Hall houses between 900

3 and 1,000 female students. The front

wings extend toward Lynch Street, and

the center section, which consists gener-

ally of a first floor lobby area and dor-

mitory rooms on the upper four floors,

runs parallel to Lynch Street. The

front wings, the sidewalk and the center

section form a grassy courtyard. A

four-foot chain link fence separates the

BUBIVN V. WALLS ~

Cite as 502 F.2d 1261 (1974)

sidewalk on Lynch Street from the PX 133 shows the west wing of Alex-~

were

courtyard.

The wing is ¢8’2” high. The central col-

umn, enclosing a stairway, is made up of

five metal panels, each coinciding with a

floor of the dormitory. Each panel con-

tains a window composed of two large

panes and located at the landing between

floors. There are two glass doors at the

ground level of the stairwell.

2. ~The night of May 13.

On the evening of May 13, 1970, stu-

dents of Jackson State began throwing

bricks, rocks, and other objects at cars

passing through the campus on Lynch

Street.. Windows and headlights were

broken on some cars, and a traffic light

was broken out with rocks. In response

Jackson police barricaded Lynch Street

at both ends of the campus. Students

set fire to two garbage carts used to

— *

ander Hall as seen from Lynch Street. :

haul trash from campus facilities, and

they also made an attempt to burn the

Army ROTC building. A contingent

from the JPD assisted by members of

the MHP—62 men and seven supervi-

sory officers altogether—entered the

campus to secure the ROTC building. ©

The entire detachment was under the

_ command of Lt. Magee of the JPD, and

‘the highest ranking MHP patrolman

present was Inspector Jones.

This group was subjected to. some

rock throwing and verbal abuse, and :t

least one patrolman was hit by a rock.

Several of the officers heard occasional

reports from small caliber weapons.

The police found in automobiles and on

persons in the area at least one high

caliber military rifle and several small

SUE TEVERAS RETVUNTER, 6s ObKDS

caliber sidearms. None of the officers

felt that he had been fired upon, how-

ever, and none discharged a weapon.

Ultimately they were successful ‘in pro-

viding security for the ROTC building,

and as the ‘evening wore on the two

trash cart fires died down and the

crowds dispersed. .

In a printed handbill distributed to

the student body on the morning of May

14, the president of Jackson State de-

scribed the events of the preceding night

thusly:

On Yesterday evening, May 13, we

had another what has become [sic]

the annual riots at Jackson State Col-

lege. This latest riot was perpetuated

by a faceless, mindless mob of stu-

dents and non-students bent on doing

violence and destruction to the college

and doing bodily harm to our own

* counselling personnel as well as to un-

suspecting passersby. Considerable

damage was done to the college prop-

erty; mainly’ in the: form of glass

- breakage. Two'trailers used to haul

garbage from dormitories and the din-

ing hall were burned. Also a very de-

termined attempt was made to incin-

~ erate Barracks 1-A. . ,

3. The official preparations.

The Mayor of Jackson had been ori-

ented by the college president and, fear-

ing the inadequacy of the JPD, had on

May 13 requested assistance from the

Governor of Mississippi. The Governor

issued a proclamation invoking full po-

lice power on behalf of the Department

of Public Safety, see Miss.Code Ann. §

8082 (now Miss.Code 1972 Ann. § 45-3-

21), and issued executive orders mobiliz-

ing units of the Mississippi National

Guard and directing the MHP to provide

needed assistance to the JPD upon re-

quest by the city. On the morning of

May 14 General Walter Johnson of the

Mississippi National Guard conducted a

meeting at the National Guard Armory

in Jackson to coordinate plans for cop-

ing with the disorders at the college.

Lt. Magee represented the JPD at this

meeting; the MHP did not send a rep-

EZ eo OEY

PAG a on

FPS POE BIG EP TLE LT IRC OIE nls

resentative. The plan ultimately formu-

lated called for 1,000 guardsmen

equipped with armored personnel car-

riers and tear gas to stand ready to be

committed at Lt. Magee’s request. Se-

lected guardsmen had orders to carry

high caliber rifies with sniper scopes,

but most were to carry unloaded shot-

guns, and on command they were to load

first with four rounds of number 9 ~

‘birdshot so as to minimize injuries.

"4. The night of May 14.

During the day of May 14 property

damaged the preceding night was re-

paired, and classes and final examina-

tions proceeded as usual. That night,

however, the difficulties resumed. Lt.

Magee testified that “People were being

rocked as they came through this area in

their vehicles; . . people were

being injured as they passed through,

bricks and things coming through their

cars. We had a large group of people in

this area that were becoming unruly.”

As on the preceding night, the officers

barricaded Lynch Street. Shortly there-

after a privately owned dump truck was

set afire by students on Lynch Street in

front of Stewart Hall, a men’s dormitory

on the western edge of the campus. Re-

sponding to this incident, the same force

of policemen and patrolmen that ‘had

been there the preceding night entered

the campus, again under the command

of Lt. Magee of the JPD and with

Inspector Jones as the highest ranking

MHP patrolman present. The force de-

ployed between the burning truck and a

crowd of 200 to 300 persons. Lt. Magee

used a bullhorn to persuade the crowd to

move away from the truck, and a fire

truck was brought in to extinguish the

fire. Many objects were thrown at the

officers, including bottles and pieces of

concrete, and they were called a variety

of obscenities.

Some of the officers heard small cali-

ber weapons being fired, and Inspector

Jones testified that the fire truck was

fired at. A few MHP patrolmen led by

Inspector Jones entered an alley beside

Stewart Hall, a bottle was hurled at

them, and one or more of them respond-

ed with gunfire, inflicting no personal

injuries but some property damage to

the side of Stewart Hall. At about this

time Lt. Magee requested aid from the

National Guard, which promptly sent a

force of guardsmen to assume positions

around the perimeter of campus.

The policemen and patrolmen re-

grouped, and from Stewart Hall they be-

gan a ‘narch eastward along Lynch

Street to provide security for the fire ©

truck which had moved to a new loca-

tion. With them was “Thompson's

Tank,” an armored bus or truck of the

JPD. Students followed along the side-

walks. Numerous missiles were thrown

at the officers, and many officers were

struck. The obscenities continued. By

the time the officers reached a point in

front of the West Wing of Alexander

. Hejl the crowd had swelled to 300 to 400

students and was unruly, so Lt. Magee

halted his contingent. There was widely

_Narying testimony from the officers as

to how much.Aime elapsed between the

contingent’s halting and the outbreak of

firing. Lt. Magee described his own ac-

tions after the halt in this manner. He

used his bullhorn to order the students

to disperse, and the crowd began

complying. They began to file off the

street and into the courtyard in front of

Alexander Hall, but, because they had to

pass through a narrow gate in the fence,

the >rocess of dispersion went slowly.

While the officers waited for the crowd

to enter the courtyard more objects were

thrown at them, and Lt. Magee was hit

by one of the missiles. Nevertheless, Lt.

Magee did not feel that tear gas was

necessary to assist in dispersing the

crowd.

Q._ Whilé you were in front of the

crowd prior to the time the shooting

started, did you give any order to use

the tear gas? :

A. (Lt. Magee): I didn’t think it

was necessary at that time, the people

were complying with my request.

of + teeta ee

“BURTON v. WALLER

Q. They were withdrawing from

Cite ax 502 F.2d 1261 (1974)

the street area and dispersing as you

were ordering them to do?

A. Yes, sir.

The members of the detachment were

equipped with a wide assortment of

weapons. Most of the patrolmen, 35, car-

ried 12 gauge pump action riot shotguns

loaded -with 00 buckshot. The JPD offi-

cers also had 12 gauge shotguns, but

they used number 1 buckshot instead.

Each shotgun shell contained nine pellets,

and each pellet of either 00 or number 1

buckshot was approximately the diameter

of a .30 caliber bullet. Five patrolmen

carried their personal military carbines,

two carried 9 mm. submachine guns, and

one carried a .308 rifle. Two sergeants

of the Police Department assigned spe-

cially to watch for snipers carried AR-

15 rifles. The MHP patrolmen carried

their weapons loaded. All but five of the

policemen carried their weapons without

é round in the chamber. Inside “Thomp-

sen’s Tank” were 10 policemen equipped

witi tear gas laurchers and tear gas. The

remaining io policemen were clustered

southeast of the tank, and the 43 MHP

patrcimen stood generally to its west.

Shortly after the contingent had halted

and when the crowd in the courtyard

numbered abcut 400 students, a sound re-

sembling the report of a small caliber

pistol was heard. There is sufficient evi-

dence, in the form of testimony by many

officers and by newsmen, from which the

jury could find that at that time the

officers were fired upon by a sniper,

thus hereinafter we state as fact that a

sniper existed and that he fired? A

newsman who was in the area testified:

“Suortly after we arrived I began shoot-

‘ring film, and it was soon after that I felt

a bottle shatter at my fout, sprayed my

ankle with glass. I heard a report: a

bullet went past my ear and I heard it

ricochet off the wall behind me.” An

MHP officer testified that he saw a

black male break out the western pane of

the third window from the bottom of

the West Wing of Alexander Hall and fire

3. Plaintiffs concede th that the the e jury could so find.

“~ 2 EE EPL EEL POEL LO EID,

VDE RTD SONAL RENT is

Qe Techs Fee es) x

two shots in his direction from a hand-

gun. At least 18 patrolmen testified to

seeing two or three muzzle flashes come

from the eastern pane of the same

window. Other patrolmen saw muzzle

flashes in either one of the upper win-

dows or at the top of Alexander Hall,

and a score of additional policemen and

patrolmen heard shots from the general

vicinity of Alexander Hall. At or about

this time a patrolman and a JPD officer

were struck by thrown bricks and knock-

ed down.

Several patrolmen or policemen cried

“sniper” or “sniper third floor” or “sni-

per third window.” Almost simultane-

ously 38 MHP patrolmen opened fire, 30

with shotguns, five with their personal

military carbines, two with submachine

guns, and one with a 308 rifle. The

range from where they stood to the win-

dow was approximately 20 yards. About

half testified that they fired into the

third floor stairwell window. Five of

the patrolmen directed their fire at the

brick wal! alongside the upper story win-

dows. Others directed their fire toward

or just over the roof. Three patroimen

fired not at a specific window or over the

roofline but at what may be described

aiming or bringing his shotgun to his

shoulder pointed it in the direction of

the top of the West Wing and fired four

times. Another fired first from the hip,

then, as fast as he could lever shells into

his gun, shot in the general direction

of the top of the building. MHP in-

spector Vinson did not shoot toward the

West Wing at all but fired his carbine

toward Roberts Hall, across Lynch Street

from Alexander Hall, firing into the

ground behind a running black male fig-

ure to run him under cover.

Only five JPD policemen fired their

weapons. They discharged their shot-

guns into the air at an angle of about 85

or 90 degrees, firing a total of seven

rounds of number 1 buckshot.

Throughout the barrage of gunfire Lt.

Magee repeatedly called for the men to

cease fire. At trial he recalled the scene:

Ute 2:2 2 ” J

Q. What happened when the firing

broke out?

* + * * * *

A. Well, when the shooting began,

naturally I flinched, any reaction,

I fiinched and dropped a little bit

and looked up. I didn’t know

where the shooting was coming

. from. I didn’t know what it was.

As I looked up I saw a window in

the dormitory break and just

‘about that time something hit that

transformer over my head and it

exploded, and I realized the shovt-

inxy was coming from my rear,

and I immediately turned and

took the bull horn and immediate-

ly began ordering cease fire.

Q. How many times did you order,

cease fire, before the firing stop-

ped?

A. Sir, I can’t say, I don’t know.

Q. Do you recall giving the testi-

mony at your deposition that you

gave the order at least three,

four, or five times?

’ A. Yes, sir.

Q. And the firing went on all the

way through that, didn’t it?

A. Sir, I continually ordered, cease

fire, and the order continued un-

tii the firing did cease, which I

understand, was twenty some-

thing seconds. Now it took me a

few seconds to turn and start

_ giving the order.

Other officers—JPD Sergeant Lee,

MHP Inspector Cooper, and MHP In-

spector Jones—joined Lt. Magee in call-

ing for cease fire. Approximately 29

seconds after the outbreak of gunfire

the firing stopped. Based on defend-

ants’ own testimony, plaintiffs have cal-

culated that during those 29 seconds the

officers discharged from 121 to 153

rounds of ammunition containing be-

tween 793 and 1,001 separate projectiles.

B. THE EFFECT OF THE GUNFIRE.

The appearance of the West Wing af- :

ter the fi:ing is shown by PX 133.

Tete) a,

Cite as £92 F.2d 1261 (1974)

From ground level to roof the central

row of windows and metal panels were

damaged. Portions of glass in the ground

level doors had been shot away. Every

pane in every window and every metal

panel had been damaged. The western

panes of the top window and the next

window down had been virtually shot out.

The eastern portion of the second win-

dow from the top, the pane behind which

the sniper had been located by the testi-

mony and at which numerous patrolmen

had directed their fire, was unmarred.‘

The effect of the fire laid down by

the officers was not confined to the

West Wing but ranged eastward across

the center portion of Alexander Hall.

The exterior of the center portion’s first

floor consisted of six large glass panes.

Three of these six panes had been pene-

trated from the outside by a total of 35

projectiles, and one portion of one of the

panes had been shot away. Damage

from bullets or shot also ranged along

the second floor of the center section,

and it was here, in a TV room, that one

of the non-litigant victims was shot.

There were four holes in the windows of

one room on the fifth floor in the east-

ern part of the center section, three

more bullet marks below these windows,

and two bullet holes through furniture

in the room. The fire ranged even far-.

ther east to the East Wing, where some

damage was sustained on the second

floor. ,inally, the FBI counted 15 holes

or indentations in a retaining wall in

front of Roberts Dining Hall, across the

street from Alexander Hall.

Personal injuries were similarly wide-

spread. Tuwaine Davis*4 was struck

while in the stairwell between the third

and fourth floors of the West Wing.

Vernon Weakley, who had been standing

at ground level in front of the West

Wing, was hit in the leg. Leroy Kenter

4. The FBI, which conducted an investigation

after the shooting, counted 250 holes or in-

dentationx in the windows, surrounding met-

al framex, and metal panels. This tally did

not include holes or indentations in the glass

doors at ground level and indentations in the

walls alongside the windows. Obviously, it

was shot as he attempted to run west-

ward in front of the West Wing. Phil-

lip Gibbs was found mortally wounded

in the courtyard slightly to the east of

the West Wing, with head wounds

caused by two pellets of number 1 or 00

buckshot. James Earl Green was found

on the sidewalk, across Lynch Street and

in front of Roberts Hall, dead from a

single pellet of number 1 or 00 buckshot

that passed through his heart. Four

other persons not parties to this litiga-

tion were wounded in front of and in-

side the entrance to the West Wing, one

in the West Wing stairwell between the

first and second floors, another between

the second and third floors, and still an-

other as far away as the TV lounge on

the second floor of the center section oi

Alexander Hall. .

Investigators could not trace the path

of any of the projectiles to determine

which specific persons fired them. Nor

were shotgun pellets recovered from

those wounded or killed traceable to spe-

cific weapons since a shotgun does not

leave distinctive markings on its projec-

tiles. The FBI, however, inserted a rod

through holes in the double-walled metal

panels and sighted along the rod’s

length. Seventeen sightings were made,

and each indicated the projectile causing

the hole originated from a point on

Lynch Street where the MHP patrolmen

had been clustered.

The barrage of gunfire far exceeded

the response that was appropriate for a

detachment the size of this one and un-

der the circumstances which it faced.

This conclusion is not judicial second

guessing of officers faced with danger,

rendered from the quiet and safety of

judges’ chambers. It is what the evi-

dence shows. The testimony touching

the issue of appropriate response from a

large «detachment coming under sniper

did not include marks from any projectiles

that may have paxxed through portions of

windows shot out.

4-A. Since married,

Whitehead.

New Mrs, Tuwaine I avis

MN GOODE APP OMiley Du ey -— - £m

PPE FPP APRN OL

"At ame en nee QB

fire uniformly rejected as unacceptable

the barrage that took place at Jackson

State. Under the evidence, the fire was

' excessive in volume and in intensity, and

the size of the area subjected to fire was

beyond the physical limits of justifiable

response. Neither at trial nor on appeal

have the MHP defendants, to whom the

issue was particularly significant,

squarely addressed themselves to the is-

sue of overall excessiveness of response.

Instead they have assumed that the va-

lidity of responsive action is measured

solely by inquiring whethe’ zach officer

was authorized to respond in che exer-

cise of his individual discretion. They

have not wrestled with whether such an

authorization was improper because it

might produce an excessive cumulated

use of deadly force such as occurred in

this instance.

‘Major General Walter Johnson, com-

manding officer of the Mississippi Na-

tional Guard (who was at Jackson State

the night of the shooting but not at the

scene), testified concerning Guard pro-

cedures under sniper fire. He described

the Guard’s methods of crowd control—

use of large numbers of people, non-le-

thal gas, riot control batons, rifle butts,

riot guns “not loaded with buck shot but

* loaded with No. 9 bird shot, aiming not

at the face but at the knees,” and overall

the use of minimum physical force. He

testified also:

Q. What has the reaction o! the

Guard been to the sound of

small-arms fire?

A. They (guardsmen) hold their for-

mation, Now I don’t mean to im-

ply that we won't react if we are

ever fired upon and someone is

hit. I take a pretty dim view of

someone shooting out of a dark-

ened building or behind a tree or

something like that and hitting

one of my men, I take a pretty

dim view of that and of course I

would react, I think, properly. I

don’t think a sniper has any—l

think he just forfeits all his

rights when he starts sniping.

Q. Under what circumstances would

an order be given to return fire?

{Except for small patrols, the

Guard permits return fire only

upon the command of an officer

to load and fire.]

A. If we actually took fire—in other

words a ricochet by your foot or

something like that—now we are

not going to fire into a crowd be-

cause we've nicked yp one. But

_ if we can isolate this man we will

first try to capture him, but if he

can’t be captured he will be

{k]illed. We have _ specially

trained sniper teams with sniper-

scopes, infra-red night firing sni-

perscopes. We have heav([y)

lights. Very often, as has been

reported, say, in Watts, you will

get a lot of sniper fire from tops

of buildings or from the dark,

and we will try to search out and

put a stop to that.

Q. If your men were in front of a

darkened building and sniper fire

started coming from a window,

what would their response be ac-

cording to your standard operat-

ing procedure?

A. Probably give the order to take

cover and disperse immediately.

No point in just standing there.

We would take cover and protect

ourselves and the special sniper

teams would attempt to search

out, seize or destroy.

Q. Would this be true if it were a

riot control situation as well?

A. I don’t follow you.

{Q} Well, let’s say in addition to hav-

., ing a single sniper possibly firing

from a window you had people on

the street milling about, some of

them hurling objects, some of

them: shouting epithets. Would

that answer that you gave hold

true as well?

A. We would probably lay down a

tear gas barrage or CS barrage.

Wesley Pomeroy, a career law enforce-

ment officer and an expert in the con-

19“

eee eee

Aha

Cite an 502 F.2d 1261 (1974,

trol of civil disturbances testified. Pre-

viously he had advised the JPD as a con-

sultant. He had planned and directed a

five-day seminar at the University of

Mississippi for Mississippi law enforce-

ment officers, called “Days of Dis-

sent.”5 He testified without contradic-

tion that according to standards general-

ly accepted by law enforcement agencies

throughout the United States, firepower

of the kind used at Jackson State was

never an appropriate response to sniper

fire, particularly when there are large

numbers of people in the vicinity. He

gave as his opinion that the firepower

used at Jackson State was unwarranted

because:

[A]ecording to generally accepted,

universal[ly] accepted standards by

law enforcement throughout the Unit-

ed States massive retailatory (sic)

general firing power of that kind is

never an appropriate response to sni-

per fire, particularly when there is a

‘number of other peop'e who are in the

vicinity ‘who are not participants.*

Additionally, the two sergeants of the

JPD who were trained, equipped and

designated to deal with snipers never

fired. Most of the JPD officers with-

held their fire, while the five who did

discharge their weapons fired a total of

seven rounds into the air.

We turn now to questions of liability.

5. Pomeroy served as a uniformed officer

with the California Highway Patrol and lat-

er ax undersheriff of a California area

where he wax in charge of civil disturbance

duties. Ie hax directed conferences on pre-

vention and control of civil disorders spor-

sored by the International Association of

Chiefs of Police and funded by the Depart-

ment of Justice. Later he became special

assixntant to the Attorney General of the

_ United States charged with procedures for

proterting U. S. government buildings from

vivil disorders, and served as liaison or coor-

dinator in dealing with several civil disturb-

ances, and he became Associate Administra-

tor of the LEAA (Law Enforcement Aasist-

ance Administration).

Pomeroy resigned from LEAA to become a

consultant on prevention and control of civil

502 F.26—80V

a ee

orem. =.

C. STATE AND CITY IMMUNITY

FROM SUIT.

(2-4) The trial judge cor ectly held

that both the state and the ci y enjoyed

sovereign immunity. The state’s claim

of immunity from suit in a federal court

bottomed on the Eleventh Amendment is

a good defense. See, e. g., Wright, Fed-

eral Courts, 2d ed. § 46. Bivens v. Six

Unknown Named Agents, 403 U.S. 388.

91 S.Ct. 1999, 29 L.Ed.2d 619 (1971),

which permitted a cause of action

against federal agents for violation of

certain constitutional ri hts although

Congress had enacted no statute creat-

ing such a cause of action, has not de-

stroyed or supplanted in part the immu-

nity conferred upon states by the Elev-

enth Amendment.

The city is immune from suits

brought under § 1983. Monroe v. Pape.

365 U.S. 167, 41 S.Ct. 473, 6 L.Ed.2d 492

(1961); City of Kenosha v. Bruno, 412

US. 607, 93 S.Ct. 2222, 47 L.Ed.2d 109

(1973).

Under Mississippi law, in the absence

of express statutory authority, the state

cannot be sued for the negligence of its

officers, agents or employees. Lowndes

County v. State Highway Comm'n, 220

So.2d 349 (Miss.1969); Curtis v. State

Highway Comm'n, 195 So.2d 497 (Miss.

1967); Horne v. State Bldg. Comm'n,

233 Miss. 810, 103 So.2d 37% (1958):

disorders, and it was in this capacity that he

advised the JPT) and conducted the Universi-

ty of Mississippi seminarx. In addition to

his work as consultant he ix Director of

Safety and Development for the University

of Minnesota.

6. Additionally, the evidence discloxed that the

second phase of large detachment anti-sniper

action is to send a team into the building to

find and sublue the pinned down sniper.

That provedure wax never enrried out -t

Jackson State. There ix no substantial evi

dence that any search was even made of the

particular window area or the stairwell to

find if the sniper had been killed, wounded,

or had escaped.

CYNE A LON

VOR ASO. Fi A PER IS

eae ON

Ayres v. Board of Trustees, 134 Miss.

363, 98 So. 847 (1924). And a city is

immune from liability for the torts of

its police officers. “This State, along

with the overwhelming majority of the

others, adheres to the rule that munici-

palities are immune from liability for

the torts of its officers, agents, and em-

ployees while engaged solely in matters

pertaining to the police powers of the

city.” Anderson v.-Vanderslice, 240

Miss. 55, 126 So.2d 522 (1961). Accord,

Twiner v. Jenkins, 257 So.2d 488 (Miss.

1972); Simpson v. Poindexter, 241

Miss. 854, 133 So.2d 286 (1961); City

of Hattiesburg v. Buckalew, 240 Miss.

323, 127 So.2d 428 (1961); Bates v.

City of McComb, 181 Miss. 336, 179 So.

737 (1938). -

D. SOURCES OF LIABILITY.

- (5, 6) Throughout the remainder of

this opinion we refer to the common law

of tort with particular reference to Mis-

sissippi law. In the context of the

- present case any liability of the defend-

ants under § 1983 could ‘be no broader

than their liability under Mississippi

law. In Whirl v. Kern, 407 F.2d 781

(CA5, 1969), we held that an “improper

motive” or purpose on the part of de-

fendants was not an element of a cause

of action under § 1983. We noted, how-

ever, citing Pierson v. Ray, 386 U.S.

547, 557, 87 S.Ct. 1213, 1219, 18 L.Ed.2d

- 288, 296 (1967), that, “the purpose with

- which an unconstitutional act is done is

: highly relevant to recovery under §

_ 1983, but relevant more as a source of

_ defenses springing out of the common

law of torts than as an obstacle to the

» 6A. We indicate jn the text that § 1983 liabili-

ty in this case would be no broader than lia-

bility under Mississippi law. Similarly we

suspect that it would be no narrower, see

generally 42 U.S.C. § 1988 and our interpre-

tation thereof in Brazier v. Cherry, 293 F.2d

401. 409 (CA

decide that question here. It is arguable

that § 1983 requires conduct approximating

that involved in an intentional tort even

though “specific intent” or “improper mo-

tive” is clearly not required. See W. Me-

Cormack, Federalism and Section 1983:

Limitations on Judicial Enforcement of Con-

5, 1961), though we need not.

statement of a § 1983 cause of action.”

Id. 407 F.2d at 789. See also Scott v.

Vandiver, 476 F.2d 238, 242 (CA4,

1973) (federal court may allow raising

defenses recognized by state common

law to contest a § 1983 claim); Tuley v.

Heyd, 482 F.2d 590, 594 (CA5, 1973)

(question of sheriff's vicarious liability

under § 1983 for acts of his deputy is

controlled by state law); Martin v. DuZ-

fie, 463 F.2d 464, 468 (CA10, 1972)

(federal courts look to, though they are

not bound by, state decisions in formu-

lating standards in civil rights actions).

We enteriain no doubts that the privi-

lege of individual police officers to fire

in self defense or to quell a riot are such

common law defenses and may be assert-

ed in response to the § 1983 cause of ac-

tion to the same extent that they are

relevant to the pendant Mississippi law

claim. Similarly the Mississippi and

general tort law requirements respecting

proof of causation are so much a part of

“the background of tort liability that

makes a man responsible for the natural

consequences of his actions,” Monroe v.

Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.

Ed.2d 492 (1961), that it is necessary

to apply them to the § 1983 claim in this

case. See, e. g., Pierson v. Ray, 386 U.

S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.

Ed.2d 288, 295 (1967) (“prevailing view

{of tort law] in this country” relied on

in establishing standards for false ar-

rest type action under § 1983); Ander-

son v. Nosser, 456 F.2d 835, 841 (CA5,

1972) (en banc) (applying general tort

principles of proximate causation to sup-

port a jury verdict for defendants in a §

1983 action) .®4

stitutional Prote¢tions, Part I, 60 Va.L.Rev.

1,°54-55 (1974). The. Fourth Circuit, how*

ever, mens applied § 1983 to grossly negligent

conduct, Jenkins v. Averett, 424 F.2d 1228

(CA 4, 1970), and it is arguable that we

have done so in Whirl v. Kern, 407 F.2d 781

(CA 5, 1969). See Jenkins v. Averett, su-

pra, and Byrd v. Brishke, 466 F.2d 6 (CA 7,

1972), both of which read Whirl as based on

the defendant's negligence. See also Robin-

son vy. Jordan, 494 F.2d 793, p. 795 (CA 5,

1974). (Cf., Roberts v. Williams, 456 F.2d

819 (CA 5, 1972); Anderson v. Nosser, 456

F.2d 835 (CA 5, 1972) (en banc). It is not

e¢ -

SL SENT, POU

Cite an 502 F.2d 1261 (1974)

{7] Mississippi imposes the highest

degree of care upon a — handling

firearms.

The highest degree of care is exact-

-ed of a person handling firearms.

' They are extraordinarily dangerous,

and in using them extraordinary care

should be exercised to prevent injury

to others. We quote from Cooley on

Torts (3d Ed.) p. 1232, as follows:

“A high degree of care is necessary ir.

the use or manipulation of loaded

weapons in the presence or vicinity of

other persons, and where injury re-

‘sults from a failure to exercise such

‘care the defendant is liable.” We

take the following rule from Barrows

on Negligence, p. 367: “The bearer of

loaded firearms is bound to exercise

‘the utmost diligence in their handling,

and he is liable for any injury caused

by their discharge, unless it appear

that he was entirely without fault.”

State to Use of Johnston v. Cunning-

ham, 107 Miss. 140, 65 So. 115, 118

(1914),” (in which an officer fired over

the head of a fleeing misdemeanant).

See also Roberts v. Williams, 302 F.Supp.

972, 986 (N.D.Miss.1969), aff'd, 456 F. .

2d 819 (CA5, 1971), cert. denied, 404 U.

S. 866, 92 S.Ct. 83, 30 L.Ed.2d 110

(1971), modified, 456 F.2d 834 (CA5,

1972).

{8] The defendant officers claim

that their conduct, even if otherwise it

would not comply with Mississippi's

very high standard of care, was justi-

fied by privileges which made it not tor-

tious. They assert the privilege of self

necessary for us to and we do not decide

here whether negligence or gross negligence

is sufficient under § 1983. Nor do we de-

cide whether the conduct of the individual

~ officers in this case could fairly be charac-

terized as “intentional” for purposes of §

1983. . Rather our analysis proceeds in

terms of application of Mississippi law to

‘the pendent state claim, since even if we

concluded that the § 1983 claim ultimately

failed it is clearly substantial enough, and

the factors of judicial economy compelling

enough, to give us jurisdiction over the pen-

dent claim under United Mine Workers v.

+> Opp 1 ep EERE EO On

GILL ON LLL ALLE DA TCR ALL LOGE ILA,

defense and the privilege incident to the

existence of a riot. With respect to self

defense, under general principles of tort

law one is entitled as a matter of self

defense to employ deadly force to repel

deadly force. Restatement Second of

Torts (hereinafter “Restatement Sec-

ead”) § 65. Under Mississippi law re-

treat is not a prerequisite to use of

deadly force. McCall v. State, 29 So.

1003 (Miss.1901); Conner v. State, 13

So. 934 (Miss.1893). There was evi-

dence from which a jury could conclude,

with respect to almost all officers, that

each was within the scope of the privi-

lege of self defense. Substantially all

officers were aware that deadly force in

the form of sniper fire was being exert-

2d. Nearly all testified to fear of death

or serious bodily harm from that fire.

[9,10] With respect to riot, under

general principles one may use deadly

iorce “for the purpose of suppressing a

riot or vreventing the other [person]

from partic’>ating in it if the

riot is one whici. threatens death or se-

rious bodily harm.” Restatement Sec-

ond § 142(2). In this case a jury could

find that there was in progress “an as-

semblage of three or more persons in a

public place for the purpose of accom-

plishing by concerted action and in a

turbulent and disorderly manner a com-

mon purpose,” id. § 142, Comment a.’

It was not necessary that the avowed

purpose of the participants ir the as-

semblage be that described in § 142 of

the Restatement Second but only that

the conduct of the participants was such

as to create the probability or even the

‘iibbe, 38S U.S. 715, 86 S.Ct. 1120, 16 L.Ed.

. Sze (1966), and its progeny.

7. This wa:. the language which the judge

seed in hiv cherge. Insofar as thix case is

concerned, it is not materially different from

_ the Mississippi statutory definition :

“A ‘riot’ is any use of force or violence

disturbing the public peace, or any threat

to use such force and violence, if accom-

panied by immediate power of execution,

by two (2) or more persons acting togeth-

er and without authority of law.”

Miss.Code Ann. § 2361.5-O01(A) (repealed

with the enactment of the 1972 Cole).

MLS GBD

possibility of such consequences. I/d.

comment g.

{11} Under these standards the jury

could find that a riot was in progress

even though at the precise time of the

firing the crowd in front of Alexander

Hall was beginning to disperse at the

orders of Lt. Magee and at the moment

there were no overt acts sufficient to

cause Lt. Magee to believe tear gas nec-

essary. The absence of disorderly acts

at the precise moment was not determi-

native. The crux of the matter was an

assemblage with the aim of accomplish-

ing a common purpose by turbulent ac-

- tion and in a disorderly manner. The

jury could conclude that the riot was one

which threatened death or serious bodily

harm. Prior to the time firing began

numerous officers had been struck by

missiles, and some of them injured, and

two had just been felled by bricks. The

fire from the sniper was part and -parcel

of the situation.

(12) The privilege of employing

deadly force to subdue a riot was not

made inapplicable by the fact that in his

opening statement and in argument be-

fore the trial court counsel for the MHP

defendants stated that his clients did not

rely upon the justification of quelling a

riot, or by the fact that in testimony no

MHP officer characterized his firing in

riot-suppression terms. The testimony

of each officer, describing his action in

terms of defense against sniper fire or

of pinning down the sniper, or both, did

not eliminate the jury’s right to recog-

nize the sniper fire as a particularized

aspect of the riot, indeed at the moment

perhaps its most inflammatory and most

dangerous aspect, and conclude that in

_ firing responsively the officers were

quelling the sniper fire and dissuading

others from joining in.*

Under the fact of this case the privi-

lege of self defense and the privilege of

use of deadly force relating to a riot

8. The triai judge, separating the issues from

the semantics more perceptively than did

counsel, properly charged the jury on riot as

a justification.

SOBEL EPIL EL LOE TILE CLOTHE IO GP AIA ia SBE IE LS

“HE TEVSNAD hEruninn, a7 ome

partially overlap. As we have held, a

jury could conclude that a riot was in

progress,® that it threatened death or se-

rious bodily harm, and that the sniper

was part and parcel of the situation. A

jury could consider whether fire direct-

ed at the sniper for defensive purposes

was within the contours of fire tending

to quell the riot in general or the saiper

as a particular part thereof or tending

to dissuade others from joining in the

riot in any manner. A jury could also

consider whether fire to quell the riot

(or the sniper as an element thereof) or

to dissuade others from joining in the

riot was delivered in such a manner as

to be within the contours of fire for self

defense.

{13,14} Inquiry must then turn to

the allowable scope of permitted deadly

force and the manner of its employment.

A privilege to use deadly force is not

unrestrained; rather it is subject to

limitations of scope and of manner of

exercise. When self defense is claimed,

the actor is not privileged to use any

means which is intended or likely to

cause bodily harm in excess of that

which he correctly or reasonably believes

to be necessary for his protection. Re-

statement Second § 70(1). Comment b.

to that subsection provides:

6. How reasonableness of means

determined. In determining whether

a particular means is or is not exces-

sive, the amount of force exerted, the

means or instrument by which it is

applied, the manner or method of

applying it and the circumstances un-

der which it is applied are factors to

be considered. There may, under or-

dinary circumstances, be a privilege to

apply a particular amount of force, to

apply it in a particular way, or to use

a particular weapon, but the circum-

stances which are known or which

should be known to the actor may be

* such as to indicate to a reasonable

man in the actor’s position that the

¥. See text at footnote 7, supra.

Sea Rite] baat Sal ve) oo ae beatae Le hea

cae

vor

vo ng Pere ITC Rare

POLITE RE AI ONY FIT ee GPL

Cite ak 2 F 20 81 Ay ap segs

use of this ordinarily privileged

means may involve a danger of harm

to the other which the actor is not

privileged to inflict intentionally.

Thus, a man may be privileged to

knock another down if the other

threatens him with violence, where

both are upon a street or lawn, but he

is not privileged to do so if the other

is standing on the brink of a precipice

or if he knows or should know that

the other is suffering from heart

disease.

Whether a means of self-defense is

excessive depends upon the bodily

harm or confinement which the actor

intends to cause, or the harm which

he has reason to believe is likely to re-

sult. Thus, means are excessive if the

actor should realize that they are like-

ly to do more harm or impose a great-

er confinement than he either intends

or is privileged to inflict; but they do

not become excessive because they un-

foreseeably result in such harm or

confinement.

The actor must believe that the

means which he applies are necessary

to prevent the apprehended harm and

not merely that they are likely to be

effective in preventing it. Not only

must the actor so believe, but, except

where the means are actually neces-

sary, his belief must be reasonable,

that is, the circumstances which are

known or should be known to the ac-

tor must be such that a reasonable

man would so believe. In this connec-

tion, .ae qualities which primarily

characterize a reasonable man are or-

dinary courage and firmness.

The actor must consider whether lesser

force will- prevent the apprehended

harm. Thus Comment c. provides:

c.. When lesser force would afford

adequate protection. The actor is not

privileged to apply a particular force

if he knows or should know that the

apprehended harm can be prevented

by the application of a force less in

kind or degree; and this is true

though the force applied is such as

would be privileged if the actor rea-

sonably believed that the apprehended

harm could only be prevented by its

use. In determining whether the ac-

* tor is privileged, allowance must be

made for the exigency in which the

actor is placed by the other’s conduct,

and the necessity for a rapid decision

as to the means which he will use in

his own defense. Even the most rea-

sonable of men, confronted with the

necessity of defending himself against

a real or apparent attack, cannot be

expected to measure accurately the ex-

act amount of force necessary to repel

it. It is only where there is a glaring

discrepancy between the force applied

and that which is necessary to prevent

the apprehended harm, or where it is

obvicus that the actor knows or should

know that he can defend himself by a

lesser force that it is for the court to

rule that the force applied is exces-

sive. Otherwise it is for the jury to

determine whether the force is or is

not excessive.

{15] A privilege must be exercised

with due regard for the interests of

third persons. A privilege to use deadly

force is not a hunting license entitling

the privileged person to strike without

regard to risk of harm to third persons.

§ 75. Liability to Third Person

An act which is privileged for the

purpose of protecting the actor from

a harmful or offensive contact er other

invasion of his interests of personality

subjects the actor to liability to a

third person for any harm uninten-

tionally done to him only if the actor

realizes or should realize that his act

creates an unreasonable risk of caus-

ing such harm.

* * * * * *

Comment:

a. This Section states the’rule that

one who unintentionally harms a third

person by an act which is privileged

as self-defense against a reali or sup-

posed assailant is subject to liability

if, but only if, his act is negligent to-

ward such third person as creating an

2 OP AR oe

ont)

~. pide es >s .

Rudd Tale a ite BLS Heil

whe

nis

re adn

JSR AS CA lone

BAN eh dc rina he Sas

undue and so unreasonable risk of

causing an invasion or impairment of

some of the legally protected interests

of the third person. ‘

b. In determining whether the ac-

tor as a reasonable man should be

aware that his act creates an unrea-

sonable risk of causing an invasion of

any of the third person’s interests of

personality, the factors which are to

be considered are similar to those

which determine the existence of neg-

- ligence in many other situations.

These factors and the importance at-

tached to them are stated in Chapter

12. The exigency in which the. actor

is placed, though not due to the third

person’s conduct, with its attendant

necessity of an almost instantaneous

choice of a means of self-defense, is

here a factor of great importance.

So, too, is the comparison between

the value of the respective interests of

the actor and the third person, and

the amount of harm likely to result to

each if the actor adopts or refrains

from adopting the particular means of

self-defense which he employs.

Restatement Second § 75.'¢

In Dillon v. Crowe, 406 F.2d 1321

(CA5, 1969), we recognized the dual

limiting factors of scope of force and

manner of exercise. Officers had raided

a dice game and arrested participants, a

scuffle ensued between an officer and a

gambler, the officer attempted to draw

his pistol to enforce the arrest, and it

accidentally discharged when the gam-

bier struck his arm. The bullet struck

plaintiff's decedent. We affirmed a

judgment for the officer-defendant, hold-

ing that the facts supported the conclu-

sicn that the officer used only such force

as was necessary and that he was not

negligent. With respect to scope of al-

lowable force, Mississippi has held lia-

ble an officer who shot and killed a

misdemeanant attémpting to escape cus-

10. For example, some of the officers testi-

fied that an officer coming under fire of a

sniper closely surrounded by a crowd would

not be free to respond by shooting indiscrimi-

nately into the crowd.

tody, holding that the officer’s exercise

of deadly force is limited to that neces-

sary to subdue the efforts to escape and

that even then he cannot take the prison-

er’s life or inflict great bodily harm on

the prisoner except to save his own life

or prevent like harm to himself. Brown

v. Weaver, 76 Miss. 7, 23 So. 388 (1898) ;

Holland v. Martin, 214 Miss. 1, 56 So.2d

398 (1952); Moore v. Foster, 182 Miss.

15, 180 So. 72 (1938). To like effect,

where the sheriff shot in attempting to

stop a youth fleeing arrest on a misde-

meanor charge, see State v. Cunning-

ham, supra.

[16] We conclude that the limits of

the privilege relating to riot are similar.

The privileged actor may not use means

intended or likely to cause bodily harm

in excess of that which he correctly or

‘reasonably believes to be necessary to

quell the riot or to dissuade others from

participating.

[17] One having a privilege but ex-

ceeding the scope of conduct which it al-

lows is liable for so much of the force

exerted by him as is excessive. See, e.

g., Restatement Second §§ 71 and 144;

6 Am.Jur.2d, Assault & Battery § 162;

Fraguglia v. Sala, 17 Cel. App.2d 728, 62

P.2d 783 (1936); Bethley v. Cochrane,

77 So.2d 228 (Ct.App.La., 955). Where

it is not possible to separate harm

caused to the victim by authorized force

and that caused by an excess of force,

the actor is liable for all of the harm.

Restatement Second § 71, Comment b.

The train’ g of MHP members in con-

trol of crowds and of riot and sniper sit-

uations became of great if not central

importance in- determining whether the

conduct ofthe officers in handling fire-

arms was reasonable under Mississippi

standards of care, whether conduct that

otherwise might be tortious was privi-

leged, and whether the scope of privi-

leged conduct was exceeded." Plaintiffs

1. The procedures of the JVI) are eviden-

tiary of what is appropriate for police offi-

cers in general but are less central to the

case since we hold that directed verdicts

against JID officers who fired were proper-

ly denied on other grounds.

ee ae = . = = enter 2?

oo ie 6

Cite ax 502 F.2d 1261 (1974)

contend that under Mississippi law the

training of the MHP constituted admin-

istrative regulations the breach of which

was negligence per se. We do not agree.

Breaches of statutes have been held to

constitute per se negligence in Mississip-

pi. See Daniels v. Adkins Protective

Serv., Inc., 247 So.2d 710, 712 (Miss.

1971); INinois Cent. R. Co. v. Bethea,

88 Miss. 119, 40 So. 813 (1906); Mobile

& O. R. Co. v. Roberts, 23 So. 393

(Miss.1898). In Robertson v. Yazoo &

M. V. R. Co., 154 Miss. 182, 122 So. 371

(1929), the court adopted in tote § 176

of the Tentative Draft of the First Re-

statement, which became § 286 of the

First Restatement.

Section 286 was changed when carried

forward to the Second Restatement. It

now makes acceptance of a statute as

the appropriate standard of care discre-

tionary with the court. (“The court

may adopt .”). As the com-

ments make clear, use of the discretion-

ary “may” was not accidental:

[The regulation] . may merely

prohibit certain conduct, and contain

no provision for any liability at all.

In such cases the initial question is

whether the iegisiation or regulation

‘is to be given any effect in a civil

suit. Since the legislation has not so

provided, the court is under no com-

pulsion to accept it as defining any

standard of conduct for purposes of a

tort action.

Restatement Second § 286, Comment d.

Daniels v. Adkins Protective Serv.,

Inc., supra, a 1971 case, discusses the ef-

fect of a violation of law upon the negli-

gence issue. It points to the conclusion

that the Second Restatement’s reformu-

lation of § 286, which was completed in

1963, would find no favor in Mississippi,

12. In Mobile the Mississippi Supreme Court

in dictum appeared willing to give negligence

per se effect to the violation by a railroad

company of its own operational rule that”

trains were to follow each other at intervals

of no less than 10 minutes.

13. Or, more asually, a definition of conduct

not appropriate.

ver ple a ah od a No he ed

and that the more rigid First Restate-

ment rule would prevail, leaving courts

no discretion to decline to regard a stat-

utory violation as conclusive proof of

negligence.

{18} The First Restatement, how-

ever, spoke only of “legislative enact-

men‘s.” It made no mention of either

ordinances or administrative regula-

tions. There appear to be no Mississip-

_pi cases expressly applying the doctrine

to violations of administrative regula-

tions. In view, however, of Mobile &

O. R. Co. v. Roberts, supra,'* we believe

that the Mississippi courts, if they faced

the question, would give some weight to

violation of administrative regulations

in considering the negligence issue. But

that does not end the analysis. The the-

ory of what is loosely called statutory

negligence or negligence per se is that a

clear official definition of appropriate

conduct 3 should be regarded as evi-

dence of the proper standard of care for

the reasonable man."* That theory is

undercut when, as here, there has been

no clear official definition. MHP train-

ing in crowd control and related subjects

was neither reduced to precise form nor

was it the subject of any formal adop-

tion procedure. Rather, the subject

matter was part of patrol training, com-

municated to patrolmen and trainees

through programs conducted by various

officers at various times and places.

Commissioner Crisler explained that ev-

ery recruit receives riot control training

in recruit school, and every patrol mem-

ber receives yearly in-service training in

that subject, and in addition, some of

the Highway Patrol Districts conduct

training on their own. The content of

such training was described at trial

through the oral testimony of those

teaching and those taught, and the de-

14. Under § 286 of the First Restatement the

statute is conclusive evidence, requiring the

judge to direct a verdict of negligence in vio-

lation is proved. The Second Restatement

formulation accords the judge discretion to

regard the statute as probative of the cor-

rect standard of care but not conclusive.

era LEONE ALG LIER LE “ALLEGED CACHE DIE". LIE He apa asa aaa sasael

scriptions varied considerably. We

think that under such circumstances the

Mississippi Supreme Court, if it gave

the training any weight, would regard it

as no more than probative of the correct

standard of care and not as conclusive.**

As we have pointed out, -he testimony

of MHP officers regarding their train-

ing varied considerably. In ruling on

motions for directed. verdict ‘the court

was required to give effect to that testi-

mony of the officers and of the experts

tending to give to the officers the wid-

est latitude of conduct. Considered in

this manner, the testimony embraced

training in what may be generally de-

scribed as two separate (but overlap-

ping) types of responsive fire that indi-~

vidual officers could engage in when

subjected to the fire of a sniper-defen-

sive fire and fire to “pin down” the sni-

per. Defensive fire embraces the privi-

lege of the officer to fire at the sniper

or at his location. when the officer fears

that he’ or his fellow officers are in dan-

ger of death or serious bodily harm

from the sniper’s fire. In effect it is an

embodiment in police training of the

right to act in self defense against a

particular kind of deadly force. Before

. an officer can fire in this manner he

must have either actually observed the

sniper or definitely established his loca-

- tion. The fire is directed at the partic-

ularized point where the sniper has been

observed or located, and it may kill or

injure the sniper or as a minimum si-

lence him. There was voluminous testi-

mony that an individual officer receiv-

ing sniper fire can fire defensively on

his own initiative without command if

he thinks his own life or that of a fellow

officer is threatened, if he knows that

he is being fired upon by a sniper and if

he has actually sighted or otherwise lo-

cated him. Also there was substantial

testimony that this right of the MHP

officer to act defensively on his own ini-

1S. The District Judge was of the same view.

He charged that the training. regulations

and procedures for crowd and riot control

adopted by the MIIP and the JP’D were evi-

POO OI Oe Pe

tiative exists even if he is a member of

a large detachment.

Fire to pin down the sniper is a some-

what broader concept. Its purpose is

not necessarily to kill or wound the sni-

per but to cause him to stop firing, to

stay down, and to remain in place. Its

purpose may be achieved by firing at a

place or places not precisely limited to

the sniper’s exact location. MHP offi-

cers testified that any member of a

large detachment can fire without com-

mand to pin down a sniper. Locating

him precisely is not a sine qua non.

For example, an officer may call out

“sniper fire at three o'clock” to identify

an approximate direction from which

fire is coming. Once a direction is es-

tablished officers may fire and are not

limited to a precisely targeted spot.

[19] Obviously, the two concepts of

type of fire overlap. Defensive fire

may pin the sniper down. Fire to pin

him down may kill or wound him. Ei-

ther type of fire will, hopefully, silence

nim. Additionally, fire to pin down a

sniper can be considered as a form of

self-defense (less stringent because not

necessarily directed precisely at the sni-

per or his location) or a particularized

form of quelling a riot. Both types of

fire, comprising particularized training

given to MHP officers concerning what

they can and should do in the face of

sniper fire, are, of course, subject to the

same limitations as other forms of privi-

leged deadly force with respect to the in-

terests of third persons—the actor is

liable if he realizes or should realiz2 that

his acts create an unreasonable risk of

harm to third persons. Restatement

Second § 75.

E. LIABILITY OF OFFICERS WHO

FIRED.

{20] We have considered officer by

officer the liability of those who fired

their weapons.

dence of reasonable conduct and the degree

of care required, and failure to follow such

instructions could be considered as evidence

of negligence.

owe Tee _ lee

lei ei

‘Cite as 502 F 22 1261 (i84y

At the threshold, there was no error

in denying the motions for directed ver-

dicts against the five JPD officers who

fired. Under the undisputed evidence

all of them shot into the air at an angle

approaching 90 degrees. A jury could

find that their action was an acceptable

procedure for meeting a riot situation

without undue risk of harm to persons

at the scene and that they were santas of

no tortious conduct.

Under Boeing v. Shipman '* standards °-

we have scrutinized the testimony of

each MHP defendant who fired. With

respect to 31 of the 38 we find without

hesitation that there was sufficient evi-

dence on which a jury could conclude

that each’s respective acts of firing were

not unreasonable under the circum-

stances," or if otherwise unreasonable

were justified under the privilege

‘of self defense or the privilege relat-

ing to riot, and a jury could find that

the fire laid down by each did not ex-

-ceed that necessary for the purpose and

was not otherwise delivered negligently.

With respect to the remaining seven

MHP defendants who fired, the issue of

possible liability as a matter of law is

closer. We discuss the acts of these sev-

en separately. After the shooting be-

gan, Assistant Inspector Charles G. Vin-

son saw a black male figure come out of

bushes in front of the dining hall

(across the street from Alexander Hall

and thus generally behind the detach-

ment) and run to the west. He fired

three or four aimed shots from his car-

bine into the grass 20 feet or less behind

the running figure “to run ’em under

cover.” Vinson does not claim that the

person was a sniper, in fact Vinson a

could not tell whether he was armed. If

Vinson-was within a privilege it was that

relating to a riot. No explanation was of-

fered of the necessity or desirability of

16. 411 F.2d 365 (CA 5, 1969) (en banc).

17. For example, a few MIP officers testi-

fied that, like the five JPD officers. they

fired into the sir, although not at so high an

angle. Without regard to privilege a jury

$02 F 26—81

rer eee Rei

forcing one out of several hundred per-

sons present to take cover, whatever

that meant in these circumstances. Pa-

trolman Jerry Arthur Jones saw a flash

from the window, heard two reports, and

fired two to four rounds from his shot-

gun, “just as fast as I could jack anoth-

er one in.” The first shot was fired

from the hip as he brought his gun up,

not aimed but in the direction of “some-

where toward the top of the building.”

He considered that he did not have

time to aim at the window and thought

it possible that this shot may have gone

into the top window instead. Patrolman

James Woodrow Bennett, without ever

identifying a possible source of sniper

* fire and without bringing his shotgun to

his shoulder or aiming it, fired five

times, once into the air from a high port

position, four more times by “pointing”

his shotgun toward the top of the build-

ing. Patrolman Joseph Wayne Braun

saw two flashes of fire from the second

window down and then raked the top of

the dormitory with a 10 round burst

from a submachine gun set to fire auto-

matically at 700 rounds per minute.'*

Investigator Ralph Curtis McClain iden-

tified the second window down as the

source of sniper fire but rather than

fire at that location shot just over the

roof line on the theory that anyone there

would be a sniper and that he was enti-

tled to fire at anyone on the roof wheth-

er sniper or not. Patrolman Donald

Robert Blackwell identified no location

as the source of fire but nevertheless

shot into the second window from the

top because he thought sounds of fire

came from that direction and because

others were firing into that window.

Patrolman Billy Frank Wheeler heard

‘shots, could not tell where they came

from, and fired two rounds from his

shotgun into the window because he saw

a movement of the curtains.

could find that this did not breach Mississip-

pi’s standard of care.

18. Hiad every officer fired 10 times, the de-

tachment would have shot 690 tines, and the

number of projectiles would have been in the

thousands.

eee ay

ae |

(21, 22) Even if, however, any one

or more of these seven was liable as a

matter of law (by failing to bring him-

self within any privilege, or, if privi-

leged; by employing excessive deadly

force or by employing privileged force

in a manner which he realized or should

have realized created an unreasonable

risk of harm to others) directed verdicts

against such person(s) were properly

denied because of the state of the evi-

dence respecting causation. The proof

did not establish as a matter of law that

any one or more of them inflicted the

harm suffered by any one or more of

the victims whose claims are before us.

Under the usual burden plaintiff must

introduce evidence affording a reason-

able basis for concluding that it is more

likely than not that the conduct of de-

fendant .was a substantial factor in

bringing about the harm suffered by the

plaintiff. Prosser, Law of Torts § 41, p.

245 (3d ed. 1964). No plaintiff estab-

. lished, at most, any more than a jury

question pursuant to this burden.

Plaintiffs seek, however, to avoid this

normal burden of proof on the authority

of Moore v. Foster, 182 Miss. 15, 180 So.

73 (1938), and Oliver v. Miles, 144 Miss.

852, 110 So. 666 (1926), and on the s .p-

porting argument that in a group action

situation where proof of actual causa-.

tion is difficult or impossible, loss

should fall on a negligent defendant who

may have inflicted no harm rather than

upon a blameless plaintiff injured by

someone who cannot be identified. In

Oliver two defendants who were bird

shooting negligently fired their shotguns

across a public highway at approximate-

ly the same time, and plaintiff was

struck with a pellet which could have

come from either gun. The Mississippi

Supreme Court held that both defend-

ants were negligent and both liable de-

spite the absence of proof of who com-

mitted the actual harm, because “to hold

otherwise would be to exonerate both

from liability, although each was negli-

gent, and the injury resulted from such

negligence.” 110 So. at 668. In Moore,

two officers negligently fired their pis-

a Trt ee

tols over the head of a youth escaping

arrest, and a bullet from one of the pis-

tols struck him. The Mississippi Su-

preme Court, citing Oliver, held that

both officers would be liable (only one

of them was sued).

(23) As we understand them, these

two cases do not impose liability as a

matter of law on multiple defendants

merely upon proof that as a matter of

law they negligently fired weapons.

Professor Prosser describes cases such

as Moore and Oliver as examples of

“clearly established double fault and al-

ternative liability.”

There is one special type of situa-

tion in which the usual rule that the

burden of proof as to causation is on

the plaintiff has been relaxed. It may

be called that of clearly established

double fault and alternative liability.

Where, for example, two defendants

negligently shoot across a public high-

way’ at the same time, and the plain-

tiff is struck by one shot, which

might have been fired from either

gun, it is clear that both marksmen

were at fault, and that one of them,

and only one, has caused the injury.

Instead of dismissing the action

against both for lack of a preponder-

ance of proof against either, the

courts have displayed some eagerness

to find concert of action, and so per-

mit recovery against both.*'

51. Oliver v. Miles, 1927, 144 Mixes. Siz,

110 So. 666; Benson v. Ross, 1906, 143

Mich. 452, 106 N.W. 1120; Kaolm v.

Kader, 1951, 89 Ohio App. 203, 101 N.

H.2d 322; cf. Kegina v. Salmon, 1880, 6

Q.L.1). 79; State v. Newberg, 1929, 129

Or. 564, 278 IP’. 568,

In this situation the California su-

preme court has solved the problem by

placing the burden of proof on the is-

sue of causation upon the two

defendants.5* There is support for

52. Summers v. Tice, 1948, 323 Cal.2d 8”,

199 P24 1, 5 A.L.R.2d 91, The court

merely extended the rule as to the bur-

den of proof on the issue of apportion-

ment of damages. Sce infra, p. 254.

~————a

OS TS oy oe OO Re SET Ee

_ Cite ax 502 F 2d 1281 (i074)

this in two Canadian decisions,*? and

53. Cook v. Lewis, [1952] 1 Dom.L.Rep.

1, [1951] S.C.Rep. 830 (similar facts) ;

Saint-Pierre v. McCarthy, [1957]

Quebee Kep. 421 (merchants selling car-

tridges to boys).

in American automobile cases of

“chain collisions,” in which the plain-

tiff is injured by one of two or more

negligently driven cars, but cannot

prove which. It seems a very desira-

54. Murphy v. Taxicabs of Louisville,

Inc., Ky.1959, 330 S.W.2d 305; Cum-

mings v. Kendall, 1940, 41 Cal.App.2d

'.549, 107 P.2d 282; Eramdjian v. Inter-

state Bakery Corp., 1957, 153 Cal-App.

2d 590, 315 P.2d 19; Copley v. Putter,

1949, 93 Cal.App.2d 453, 207 P.2d 876.

Cf. Miceli v. Hirsch, Ohio App.1948, 83

N.E.2d 240 (result accomplished by pre-

-sumption of continuing life). See also,

as to apportionment of damages, infra,

p. 25. ;

ble solution where negligence on the

part of both defendants is clear, and

it is only the issue of causation which

is in doubt, so that the choice must be

made between letting the loss due to

failure of proof fall upon the innocent

plaintiff or the culpable defendants.

But where there is no evidence even

as to where culpability lies, the hard-

ship may be equally great upon an in-

nocent defendant; and except in very

special cases the courts have refused

to shift the burden of proof.

Prosser, Law of Torts, § 41, p. 247 (3d

ed. 1964). In Moore and Oliver, only

two actors were involved as notential

sources of harm and the appellate court

accepted as established facts that both

fired negligently, that both shot in the

19. The general rule in Mississippi appears to

be that of Blizzard v. Fitzsimmons, 193

Miss. 484,10 So.2d 343 (1942), holding that

no” recovery can be had where there is no

showing which of several possible causes pro-

duced the injury where some of the causes do

not involve the negligence of the party

charged. The Mississippi courts have dis-

tinguished #lizzard in some specialized situa-

tions. See, e. g., Hinds-Rankin Metropolitan

Water & 8. Assn. v. Reid, 256 So.2d 373 at

379 (Miss.1971) -

“In the Blizzard vase the evidence failed to

show which of the several possible causes

direction of the victim, and that injury

was caused by a missile originating

from one weapon or the cther. In the

instant case there are many actors po-

tentially the source of harm. There was

evidence of sufficient weight to go to a

jury tending to show that some defend-

ants firing (at least 31) did not do so

negligently and that harm may have re-

sulted from sources other than those act-

ing tortiously. We are pointed to noth-

ing in Mississippi law indicating that in

such a multiple actor situation the

courts of that state would hold that as a

matter of law actual causation was es-

tablished with respect to tortious de-

fendants, or to state it differently, that

liability attaches to tortious defendants

without regard to proof of actual cause

of injury.” Nor are we cited to any ju-

risdiction with a rule applicable to like

situations that would entitle plaintiffs to

directed verdicts with respect to causa-

tion. We turn then to the Restatement,

which speaks in terms of a shift of bur-

den to the defendants.

(1) Except as stated in Subsections

(2) and (3), the burden of proof that

the tortious conduct of the defendant

has caused the harm to the plaintiff is

upon the plaintiff.

* * * * * «

(3) Where the conduct of two or more

actors is tortious, and it is proved

that harm has been caused to the

plaintiff by only one of them, but

there is uncertainty as to which one

has caused it, the burden is upon each

such actor to prove that he has not

caused the harm.

produced the injury. Here, the evidence

ig overwhelming that the contents of the

sewerage lagoons was not a mere poxxible

cause of plaintiffs’ injury, but was proba-

bly the only substantial source of contami-

nation that caused the damage to thc min-

nows and the land. We are, therefore, of

the opinion that the Blizzard cree ix not

applicable to the facts of this case.”

The acts of any of the instant defendants

negligent as a matter of law are no more

than “mere possible cause(s)” and are far

from “the only substantial source of [inju-

4 gd

tr A

ne amma ern

i * eet ceemenes geeee VEeh EAR, Gh DEsteas

Restatement, Second, § 433B. This sec-

tion leaves upon the plaintiff the burden

of proving the existence of the threshold

e Comments g and { provide:

g. The rule stated in Subsection (3)

applies only where it is proved that

each of two or more actors has acted

quired that both of the two threshold is-

sues referred to in comment g. be sub-

mitted to the jury. With respect to the

question of who acted tortiously, there

was evidence under which a jury could

find that the fire of at least 31 MHP de-

fendants was non-tortious. With respect

to source of harm, the fire which injurc¢

the plaintiffs could at least as readily

have come from members of the group

of 31 as from one or more of the group

of seven.** Given the numerical dispari-

ty between the two groups, the hundreds

of missiles that the jury could find val-

idly fired, and the lack of identification

of any direction of fire from a particu-

lar defendant or defendants in the group

of seven and toward a particular victin

or victims, the jury was entitled to find

that the threshold requirements were

not met, that the burden of proving

readily.

21. An additional complicating factor is that

of the group of seven defendants, five fired

Wire e.s 7 eo

cause remained on the plaintiffs and

that this burden was not satisfied.**

[24-26] The plaintiffs also assert

that all defendants are liable on a theory

of joint enterprise, citing Oliver and

Moore. This contention, if accepted,

would avoid plaintiffs’ problems regard-

ing causation, since there is no substan-

tial evidence that injury to the plaintiff

victims came from any source other than

the gunfire of the detachment. The two

Mississippi cises are, however, excep-

tions to usual rules of proof of causation

where defendants are acting tortiously,

and they do not impose vicarious liabili-

ty upon non-tortious actors. Nor are

the actions of a law enforcement detach-

ment, each member of which has indi-

vidualized authority to act against snip-

er fire, consistent with the concepts of

joint enterprise liability. The joint en-

terprise theory of liability arises by

analogy to the law of partnership, usual-

ly by a contract express or implied and

under circumstances in which each par-

ticipant has an equal voice in conducting

the enterprise, and in most instances

has been restricted to automobile cases

as 2 defensive doctrine by which the

negligence of a driver is imputed to a

passenger. Prosser, Law of Torts § 71,

pp. 488-90 (3d ed. 1964). In this in-.

stance the detachment was under overall

supervision and command of supervisors,

and the officers in the ranks had been

granted individual authority to act

against sniper fire. In any event,

whether a joint enterprise exists is a

question for the jury. /d. at 488.

F. LIABILITY OF INDIVIDUALS

ON OTHER GROUNDS.

[27] Ajit supervisory officers on the

scene are claimed to have failed to per-

form various command functions: Lt.

Magee (in charge of the detachment),

failure to inform all officers to load and

shotguns and two fired swlid shot. Three of

those whose claims ure in suit were struck

by shotgun pellets, but there is no evidence

of what type of shot struck Kenter and

Weakley.

ee ees

A DECEIT oer, ett

—.

CA pnt TUR . re eee

fire only upon command, failure to be

familiar with MHP procedures on crowd

control; Inspector Lloyd Jones (in

charge of the MHP officers), going to

the aid of Patrolman Turcotte when he

should have been ordering cease fire;

Chief Inspector Armistead and Assistant

Inspectors Vinson and Cooper (subordi-

nates but with command functions over

at least some MHP officers), failure to

keep others from firing and encouraging

others to fire by joining in the firing

. themselves. All of these alleged failures

‘raised jury questions and could not be

the basis for directed-verdicts.**

It is clear from the volume and ‘scope

of the fire, the comparable training and

procedures of other law enforcement

agencies, and the testimony of the ex-

perts and of the MHP officers, that the

MHP was deficient in establishing and

-‘jmplementing standards for conduct of

large detachments in situations of riot

and/or sniper fire. There were no plain

distinctions between small-group and

large-cetachmert. procedures. Yet the

National Guard limited individual re-

sponsive fire to soldiers on patrol.

There was no clear principle that in the

large detachment situation the individu-

alized right of the officer to fire at will

gave way to a right to fire only upon

command, or :f it continued was subject

to some kind 07 ceiling that would pre-

vent the cumulated individual discretion-

ary fire of members of the detachment

from escalating inte a barrage (which

every expert testified was both inappro-

priate and valueless.) Normally there is

a iarge detachment rule that all or most

men take cover rather than fire while

proper anti-sniper procedures are car-

ried out. Numerous MHP officers testi-

fied that they had no duty t~ take cover.

The most vivid demonstration of the

shortfall in MHP training was the testi-

mony of the officers themselves. There

22. Possible liability of Armistead, Cooper and

Vinson based on their participation in the

firing was considered under section E.

23. In this connection, Commissioner Crisler

explained that the primary mission of the

RECO TOP APE EI GIG POLL AA AG OER EMR GY SEE LGOLOL LE! LENIN GIDE OP

Cite an 5302 F.2d 1261 (1974)

were critical contradictions and ambigu-

ities in the non-supervisory officers’ re-

spective understandings of what was

proper for them to do in the situation.

Reading their testimony, one can under-

stand how on the night of May 15 there

ensued a confused mass reaction during

which, as the supervisory officers ac-

knowledged, they lost control of the men

under their supervision.

(28,29] Commissioner Crisler was

stipulated to be the person responsible

for regulations and training of the

MHP. He was not, however, subject to

absolute liability if its procedures or

training proved to be deficient but only

for due care in the performance of his

duties. This was a jury issue, properly

submitted to that body and decided by

it. Expert witness Pomeroy testified

that the dangers of response by massive

firepower had been learned in Watts in

1965 and Detroit in 1967. In a differ-

ent context, the Supreme Court has spo-

ken of the fact that the training,’ poli-

cies and procedures of law enforcement

agencies relating to handling mass and

mob actions are an evolving area of

knowledge in which comparative judg-

ments necessarily must be made and a

wide range of dissimilar procedures may

exist. Gilligan v. Morgan, 413 US. 1, 8,

93 S.Ct. 2440, 2444, 37 L.Ed.2d 407, 414

(1973). We cannot say that a senior po-

lice officer who, the evidence shows, has

fallen short in developing procedures in

this evolving and diffuse area of knowl-

edge and in training the officers for

whom he is responsible, is liable as a

matter of law.”3

For like reasons we reject the claim

that there was liability as a matter of

law ‘against individual officer defend-

ants who had prepared lesson plans for

MHP training, submitted the plans to

officials of MHP for approval, and then

conducted training pursuant thereto.

MIIP is traffic safety, that it carries out

the additional duty of riot control only upon

proclamation by the governor, and when

called out for such duty its task is not to

assume primary control but to assist local

law enforcement officers.

ON KANONNN E Ee gee |

were ve

SN TU ED:

Se a ee

C26

G. JURY CHARGES—AND SOME

LOOSE ENDS.

(30) The court did not err in charg-

ing over objection that plaintiffs must

prove by @ preponderance of the evi-

dence that scme or all of defendants

fired their weapons wrongfully or negli-

gently. Appellants urge that the burden

was not upon plaintiffs because, in fire-

arms cases, Mississippi imposes liability

upon the defendant who has discharged

a firearm and injured another unless he

proves he is wholly free from fault.

They rely upon the last sentence of the

statement in Johnston v. Cunningham,

supra, quoted earlier at the beginning of

Section D. That sentence reads as fol-

lows:

We take the following rule from Bar-

rows on. Negligence, p. 367: “The

bearer of loaded firearms is bound to

exercise the utmost diligence in their

handling, and he is liable for any in-

, jury caused by their discharge, unless

it appear that he was entirely without

fault.”

€5 So. at 118. The statement sets forth,

and twice restates, the high degree of

care that Mississippi requires in the

handling of firearms. We do not con-

strue the last sentence to be a holding

that in firearms cases there is placed on

the defendant a burden of proving free-

dom from fault and imposing liability

up *n him unless he disproves any and all

fault. Possibly the last sentence merely

emphasizes that once a departure from

the rigid standard of care is proved, even

if the departure is slight, the defendant

will be liable. Or—and we think this

more likely—it may refer to the fact

that the person who has discharged a‘

fircarm under circumstances that other-

wise would breach the standard of care

has the opportunity to prove that he is

“without fault” in the sense that he was

privileged to fire, rendering non-tortious

conduct ‘hat otherwise would be tor-

tious. In the traditional calculus of tort

DOS ALAS CTE OE EPL RLM

502 FEDERAL REPORTER, 24 SERIES

law fault is an element and plaintiff

must prove it. The above-quoted state-

ment does not impose liability without

fault but rather retains fault as an ele-

ment. The Mississippi Supreme Court

would hardly effect, in a single ambigu-

ous sentence at the tail end of a textual

quotation, a change in a concept as fun-

damental as the obligation to prove

fault. ~~

H. CONCLUSION.

We summarize the key points control-

ling ultimate disposition of this case.

There was evidence on which the jury

could find there was sniper fire and

plaintiffs so concede. Under the gov-

erning Mississippi law of privilege, and

with respect to most of the officers who

fired, there was sufficient evidence to

submit to the jury as to whether the re-

spective officers were privileged to fire

in self defense or to suppress a riot,

and, if privileged, whether nevertheless

they employed excessive deadly force or

fired without due regard to the safety

of others. With respect to a few offi-

cers, the evidence established that they

were guilty of tortious conduct as a mat-

ter of law, but the question of whether

any one or more of them was an actual

cause of harm to any plaintiff »as for

the jury. Liability of supervisory and

command officers was a jury issue. The

State of Mississippi and the City of

Jackson were immune from suit. There

was no error in the jury charges.

Our conclusions make it unnecessary

for us to discuss questions concerning

assumption of risk, alleged immunity of

individual officers from suit, and alleged

liability of Crisler on respondeat supcri-

or grounds for tortious acts of individu-

al officers.

This case was correctly submitted to

the jury for decision. The jury has spo-

ken, and the judgment entered on its

verdict must be and is affirmed.

. —— > --*

~~ . * vi

—

Dey tse

cee

sve

Rete <

6 he

we ae

‘

o ee re

This Court heard all of tho avidunco cdduced in

tLLs ens mid svlaltted to tha jury all of the insu

of fact waich h:ve been venrcued end reitorsicd hers

tolay by counsel. The ultimate finder of fact Lound

in favor of the Nofendants by virtuc of a cencre

verdict, all sides having declined to ask ths Court

to subait tha cuestion to the Jury on cpectsl inter -.4

toricn and as a uatter of fact, as I stated proviosnly

in the record, oll sides contre? a General yardict

rathar then a special verdict, or anawers to special

Intorroyvavories. Thorcfove, I acteded to the oorece

eat and deaires and revsueuts of conicel Por «121 slows

in that sospect.

it this tics 26 26 tho duty cud sosponsii lity a:

the Court to cass on the pladutizts! motions vor a

GROG UUW UMIGL I. OS VERILEO od au bos

eltcera.tive for a New Trisnk. First, with roetucrues t::

the Moticn ior a Judeaont Notuithstendiay who Yosdtecc

tis Cour’ tuct and does consiser this motion 220 U2; 210

of and oy directcd by tha dueadins case of Notin, Co

pany vs. Shipaun, decided by the PIFth Circeuls in 36.9

end reported at 411 Fed.73 495. SiMpoen and its pre -n

Gictate tat in cunsidcrinug a motion for a Julocent sot}

withstanding a Verdict, Courts mist consider wil of cho

ROBERT L. DANICLS, JR.

OFFICIAL COUNT NEVORTER

GULFPORT, MissISsiuet

-144-

evi one@ OF record, nee Juse tab wileh cages the

none -‘wvors' cane, but in the J3<ht cf avd with “12

moncaanble Jnferencos most Lovorehle to the roriv

opposed to the notion.

I find that thoro iy subctential evidence which

cuprorts the jury verdict in favor of th? befendants,

that in, there was evidence of nuch quality ant welgine

that reescnablo and fair minced min in th2 exsrcice of

fupertial judsmant might have resehed differcni. con-

elusicas in this ratter, end I fluid that there is

subitontisl evicense to suppest tha verdict in Savor

of tise Doxvendants cnd that thore was a conflics in

the substantial evidence which ercated a guxy cucstien.

thorefore cviaitted the cus? to the Jury bet aia

reserve ruliyy unter Rule $9 (2) Ga tho methens Sele

by all particu. I dd now for tho abow® state? soascn:

averrnta tha otniatif?s! Motics Par a Judceount cote

wLtsctanding the Verdict.

{fo nixt avesvion to ba considuccd by th? Coirt 36

whether 2 now tricl should bs mrantcd, whteh Coctsico

rests within tho sound diseration of this Coaru. At

thin tiu2, of course, J may ccasider the erediviiity oo

tho witnesses and the cvality and weight of th: evicen:

and do roudivo that this Court cses have a vice dise

eretisa providcd, of course, tht Iotuust keep dn eind

ROBERT L. DANIELS, JR.

OFFICIAL COUNT PEPOKIER

GULFPORT, MississiPrs

~145-

—

thet tha fuey Ls tho finder of vient wicynt should >

civen an witneso's tastincay and olso what voivhe cbowla

bo civen 011 of tha ovidenco in n caco; nevertholess, t:°

Court, of course, must prevent any miscarrinse of

Justice, without invedins tho propor porforszance of

the fact finding role of tho Jury.

“his Court recognizes that it may grant a nay trial

Mf it iecle that it hos consitted’ error in ony of th

instructions 1¢ has given or rulings wnlch it has muwe,

beceuce 4t thinks the verdict is trong therch supnorted

by sors Gvidenes or beenuse the verdict is not supnert::!

by substantial evidence or beew 2 the verdict 35 cone

trary to tho weight of the evidcnee. I feeclas I che

previously ond for the sas2z reaseas dictated into thes

record Curliug the trial o? this ease fa overzulln: ibe

Plntinctlf{a! UotLons for a Viraeted Verdict, that 217. ¢

Shan a. oketebletiets oe en resem ed linen fs wes Seem Vee Dhaene Steinar an * < Shee

OO NNO mR SOC ER FR ey Fm Rey See

wrescralnoss or not o? the fivrinz, seli~

oo bi biel Pe Dee MA 0

ticn cf the risk, respondent sunorshor, the cdoquacy of

trataing and werulation ond the violation thexcef c:°

not, were qusations of fact for tho decision of th:

Jury wider proper instructions. Th? Court is of the

opinicn thit the Jury wis fully, adequately and

correctly Lustructed cn the lew in this case to bo

applisd to tie fnete as they Lourd then to ba, that ti:

* RORFRT!. CAIELS, IR,

OFFICIAL COuhT EL PORTER

GULEPONT, (41, SIGCIP PE

-146-

Veerts verdlet wis besed wp ooostantint ovidenco,

that there is substant!s:1 ev! vce to cupport its

vecdict end that Lis verdict 4; not contrary to tino

overvheloing weight of the evidence. I find thit this

Court did not commit error in tnis cas: cnd that there

was no miccarrine of justice by virtue of the Jury's

verdict. I think that this was clearly a cace in iiuicis

th? ultiinte finier of fact, ths Jury, woiched tho

evicenee, considered ths credibility of th:c witncsscs

an) cecid:d this case bosed thrrcon.

Ths Court reatfinris its previcus ruling that the

cicndants wore not reauired to prove by a preponzicr-

ence of t::2: evicenes that their Sirins of weapons wus

no% wroagrul ones? thors was Livin; The plaiatissr

ar th.t it is PRGsusc2 wroavtul and the Gercsacnn2ts

oust prev: by a prenonicronse oo: the evidence thre thar:

WAS ND JUTIGsATABII LS PORVOO WMI .. OR. A USAT Viens *2UULG

be beeghuy tut qucstioa. Con's think ti.2 bussicn t.:

shitting Just Lecause titer? was 2 Civing of a wennta

untae: the Lucts and ciresistansacs of this ca

I Muliy inoteucted the Jury with rerard to this

mattor ond at plainthifs® resect I did intorposinte in

my instructions in two or three different places thot

these defendants, by virtue of the fact that thoy vore

poriccuen, bad the duty end rocnvnsibllity to exercise

ROUVERT 1.. DANIELS, JR.

OFFICIAL COURT FLPORIER

GULFPORT, Mississurt

-i47-

i hicghsr degroc of cure than anyons clse firin; a due

Lereus wonpon. I instructed thea that those traincd

in law enforeerent work bad a hicuer duty or mast

cxoreise a hightr degrve of care than ordinary p2rsons

uador th? san? or siniler circumstances. I alco

inatructod them that they rey consider all of %1.c

surrounding facts and cireunstances in determining ths

question of wrongful firing, ani thio was submitted to

| thom as one of the questions fuct which they evident}

resolved in favor of the Defendants. Thus I feol that

the Jury was properly and adequately instructcd in this

case.

As the ultisate finder of fact the Jury found in

favor of tie Ketendants, ond this Court fo not CAsposs.,

to substitute its Jugs sont for that of the Jary wicer

these fscts and eireunstunces. I will therefore over-

FULO Whe asVGiONy U2 Cuca Us bie Tiuiubidsio Mua ns Cen t

Yrical.

I reserved ruling on the question of tho f:o::nity

of the Pefendents, Sir.te of Mississippi cad Cliy of

Jackson, and at this tina the Court relies that in the

event thst it is mistaken in any regard in its fore}

going auction in overruling these motions, {t is of the

opinion that tho State of Hissicolppt was and is itunes

fro: sult in this cass by virtue of the Lieventh /osuna. |

ROBERT t.. DANICLS, JR.

OFFICIAL COURT MEPORTER

GULFPORT, MISSISSIPPI

-148-

—e Bi Aone

5 4

“

Be |

d dabei

sas Lain

D6 \

to tho United States Conntitution mn lans v. Loutsiens |

and itn preseny as well as under the Mississippi Consti.

tution «nd that it could not bs sucd in Federul Court

by citizens of tho sane state or other oetates. Purther.

moro, the City of Jackson is and was teenie fron this

type suit because the City ic not a "porson® within

tho moaning of the Civil Rights Act under the creator

and better weight of authority. Also, undcr Stcte la,

it was performing a governmental, as distinsuished fro:

& proprictary, function and that it was insane fren

suit for that reason under tho established law of the

State of ifiasinsippi. I think I owe it to counsel and

to tho Appellate Courts in the event this case is

appealed, to state my views with resrect to the ecuostti |

of incunity at this tire.

An aoproprinte order conforming to th? forxceze!

BiuBla VUE presented by bin CUuse wabilies Saws Uuyisy

approved a3 to form by Counsel for all sicdzs.

The Court reserves the rivsht to cdit, revice nnd

correct this oral tench opinicn in th2 event Couirzel

requcsts the reporter to transcribe it.

This will constitute the ruling of this Court on

these Motions waich I have considered here today and i:

there is no further business to cone before the Court,

Court is adjourned. (COURT ADJOURNED)

ROBERT L. DANIELS, JR.

OFFICIAL COURT F.EPORTER

GULFPORT, MISSISSIPPI

-149- .

UITID STAYS PIsi.tIor counr

SOU. 22 DISTAICT OF .ti5ilo Trl

ILCiGON bpIVIsIc:!

CIV:.L ACTION 1:03. 470, 4997

MMRTILY. GAiild BURT, OT AL,

Plaintiffs.

JOUN SILL VILLIANS, ET AL,

Defenlants.

CCURT REPORTER'S CLyeyvICATC

I, Robert L. Danicls, Jr., Officisl Court Reporter, in

and for tho Unitcd Ctatcs District Court for the Southern Lise

trict of iinsiesizzl, herepy certify that the foreoing 7 pases

contain a tzu? and correct transcript of the Orel Cpinion andj

Yulin; of ths Court on Motions for a duciaent Notwithsvanuins

tna Verdict and fov U2u Trial, had in this cause on the Don day

ef April, 1°72, ay vocurdca aud tfoncerived by ric tO the best

whtncss xe slomature, tais 1.2 lsth day OF ALSLL, Iisa.

D4 DH ed

Z ey ¢ /. ‘a ie, ie

wsSt& Lee biveetacdisg “ces

OPrficl al Court uepore: ore

ROBERT L. DANIELS, JR.

OF FICIAL COURT REPORTER

GULFPORT, MISsissiPP!

-150-

;

1. The failure of the Court of Appeals to reverse on

the ground that the law enforcement officers’ violation of

their own training and regulations constituted wrongiul

conduct as a matter of law. RESTATEMENT (SECOND) OF

Torts § 286 (1965); Underwood v. United States, 356

F.2d 92, 98-99 (5th Cir. 1966); Daniels vy. Adkins Pro-

tective Serv. Inc., 247 So. 2d 710, 712 (Miss. 1971);

Robertson v. Yazoo & M.V.R.R., 154 Miss. 182, 187-88,

122 So. 371, 372 (1929).

2. The failure of the Court of Appeals to reverse on

the ground that the jury should have been instructed that

the uncontroverted testimony of national and local experts

in crowd and sniper control established the standard of care

the officers should have adhered to. W. Prosser, LAW OF

Torts, § 33 at 166 (4th ed. 1971); Rhode Island Hosp.

Trust Nat'l Bank v. Swarts, Bresenoff, Yavner & !acobs,

455 F.2d 847, 852 (4th Cir. 1972).

3. The failure of the Court of Appeals to reverse on

the ground that, by not instructing all officers present (ex-

cept the predesignated sniper team) that they must not fire

without a command, each supervisor acted wrongfully as a

matter of law. RESTATEMENT (SECOND) oF Torts § 315(a)

(1965); Roberts v. Williams, 456 F.2d 819, 822-23 (5th

Cir.), cert. denied, 404 U.S. 866 (1971); modified, 456

F.2d 834 (5th Cir. 1972) (addendum).

4. The failure of the Court of Appeals to reverse on

the ground that certain superviscry officers participating

in the firing acted wrongfully as a matter of law by not

joining the detachment conimander and others in ordering

“cease fire’, and instead, by their disobedience of those

orders, encouraging others to disobey the orders and begin

or continue firing. RESTATEMENT (SECOND) oF ToRTS

§ 315(a) (1965) ; Roberts v. Williams, 456 F.2d 819, 822-

23 (5th Cir.), cert. denied, 404 U.S. 866 (1971), modified,

456 F.2d 834 (5th Cir. 1972) (addendum).

5. The failure of the Court of Appeals to reverse on

the ground that the jury could not properly have found that

the firing was ‘‘justified” in ‘self defense” because, to so

find, the jury was also required to find under the District

Court’s instruction that the petitioners or their decedents

“were assaulting the defendants” or were “‘present and aid-

ing and encouraging said assailants and imminently endan-

gering the life or safety of the... defendants or imminently

threatening them with great bodily harm” and there is no

evidence which would support either finding. Sinclair Re-

fining Co. v. “ompkins, 117 F. 2d 596, 598 (5th Cir. 1941).

6. The failure of the Court of Appeals to reverse on

the ground that the District Court did not instruct the jury

that the officers who fired had the burden of proving that

their firing was entirely without fault. State er. rel. Johns-

ton Vv. Cunningham, 107 Miss. 140, 65 So. 115 (1914).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.