Robert Beech v. D. J. Melancon and P. J. Gallo

Sixth Circuit

Robert Beech v. D. J. Melancon and P. J. Gallo

465 F.2d 425, 1972 U.S. App. LEXIS 8153

CourtCourt of Appeals for the Sixth Circuit

DecidedJuly 31, 1972

Docket72-1167

StatusPublished

Cited by35 cases

This text of 465 F.2d 425 (Robert Beech v. D. J. Melancon and P. J. Gallo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Robert Beech v. D. J. Melancon and P. J. Gallo, 465 F.2d 425, 1972 U.S. App. LEXIS 8153 (6th Cir. 1972).

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PER CURIAM.

This is an appeal from a judgment for the defendants in a civil rights action instituted by the plaintiff claiming damages resulting from having been shot by the defendant police officers while attempting to escape from the scene of a burglary. The plaintiff and one Cren-shaw were attempting to rob a safe in a gas station when the defendant police officers stopped their patrol car in front of the gas station. Plaintiff and Cren-shaw attempted to make an escape from the scene of the felonious activity.

The District Judge found that they were warned to halt and were informed that the defendants were police officers. When they did not halt the defendants fired, Crenshaw was killed and Beech was wounded.

The single issue here presented is whether the trial court was guilty of clear error in concluding that the defendants were justified in the use of deadly force to apprehend the plaintiff. A Tennessee Statute, T.C.A. § 40-808, authorizes a police officer under the circumstances set forth above to “ * * * use all the necessary means to effect the arrest.” This Statute has been recently construed and found to be constitutional by a Three-Judge District Court. Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.Tenn.1971). In any event the police officers were entitled to assume the constitutionality of the Tennessee Statute. “State statutes like federal ones are entitled to the presumption of constitutionality until their invalidity is judicially declared.” Davies Warehouse Company v. Bowles, 321 U.S. 144, 153, 64 S.Ct. 474, 479, 88 L.Ed. 635 (1944), and see also McDonald v. Board of Election, 394 U.S. 802, 808, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Davis v. Department of Labor, 317 U.S. 249, 257, 63 S.Ct. 225, 87 L.Ed. 246 (1942).

On this record the District Judge had evidence to justify his finding that the officers used only the “necessary means to effect the arrest.” The plaintiff and his accomplice were engaged in a safe robbery and attempted to escape in the dark of night through weeds and bushes after being warned that police officers were present with guns. We cannot say that the District Judge was guilty of clear error.

The judgment is affirmed.

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PER CURIAM.

This is an appeal from a judgment for the defendants in a civil rights action instituted by the plaintiff claiming damages resulting from having been shot by the defendant police officers while attempting to escape from the scene of a burglary. The plaintiff and one Cren-shaw were attempting to rob a safe in a gas station when the defendant police officers stopped their patrol car in front of the gas station. Plaintiff and Cren-shaw attempted to make an escape from the scene of the felonious activity.

The District Judge found that they were warned to halt and were informed that the defendants were police officers. When they did not halt the defendants fired, Crenshaw was killed and Beech was wounded.

The single issue here presented is whether the trial court was guilty of clear error in concluding that the defendants were justified in the use of deadly force to apprehend the plaintiff. A Tennessee Statute, T.C.A. § 40-808, authorizes a police officer under the circumstances set forth above to “ * * * use all the necessary means to effect the arrest.” This Statute has been recently construed and found to be constitutional by a Three-Judge District Court. Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.Tenn.1971). In any event the police officers were entitled to assume the constitutionality of the Tennessee Statute. “State statutes like federal ones are entitled to the presumption of constitutionality until their invalidity is judicially declared.” Davies Warehouse Company v. Bowles, 321 U.S. 144, 153, 64 S.Ct. 474, 479, 88 L.Ed. 635 (1944), and see also McDonald v. Board of Election, 394 U.S. 802, 808, 809, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969); Davis v. Department of Labor, 317 U.S. 249, 257, 63 S.Ct. 225, 87 L.Ed. 246 (1942).

On this record the District Judge had evidence to justify his finding that the officers used only the “necessary means to effect the arrest.” The plaintiff and his accomplice were engaged in a safe robbery and attempted to escape in the dark of night through weeds and bushes after being warned that police officers were present with guns. We cannot say that the District Judge was guilty of clear error.

The judgment is affirmed.

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