Rosa Carter, Administratrix of the Estate of Adrian Miles Carter, Deceased, Cross-Appellee v. City of Chattanooga, Tennessee, Cross-Appellant

850 F.2d 1119, 1988 U.S. App. LEXIS 8862, 1988 WL 64565

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 27, 1988
• Docket: 84-5247, 84-5276
• Status: Published

Opinions

WELLFORD, Circuit Judge.

I. BACKGROUND

Adrian M. Carter was shot and killed by a Chattanooga police officer, Paul Kyle, on December 21, 1982 as he fled from the scene of a burglary. Carter’s mother as administratrix brought suit against the officer and the City under 42 U.S.C. § 1983, claiming a violation of the Fourteenth Amendment right of due process of law. At the time, there was in effect in Tennessee a so-called “fleeing felon” statute, TCA 40-808 (1975), recodified in 1982 as TCA 40-7-108.¹ This law had been in effect in Tennessee for many years, and authorized the use of deadly force as a reasonable last resort to apprehend a fleeing felon after notice of intent to arrest. Prior to the trial of the issues in this case, we decided Garner v. Memphis Police Department, 710 F.2d 240 (6th Cir.1983), aff'd, sub nom. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), which held that this Tennessee statute, and a City of Memphis policy based thereon, could not constitutionally be applied under the Fourth Amendment to a “seizure,” a fatal shooting of a suspect, even if reasonably believed to have committed a felony, under certain circumstances. (The circumstances in Garner were that the fleeing suspect who was shot and killed by police was a minor who was neither armed nor otherwise apparently dangerous and who had not, to the knowledge of the pursuing police, been involved in a crime involving serious harm or violence to others.)

Our 1983 decision in Gamer came about following our remand of the issues to the district court at 600 F.2d 52 (6th Cir.1979).² Following Garner II, the district court permitted the plaintiff to amend her complaint to assert a Fourth Amendment claim, but it denied plaintiff’s motion for a summary judgment on the issue of liability. Both the individual police officer, Kyle, and the City of Chattanooga also moved for summary judgment. Based on his claim of qualified immunity, the district court granted the officer’s summary judgment motion, while at the same time denying the City’s motion on the grounds that application of Garner II precluded this action. At the trial in January of 1984, the district court instructed the jury based on principles set out in Garner II, which had been finally decided by this court only a few months before the trial. The jury returned a verdict for the City, and plaintiff has appealed.³

Facts in this case are set out based on essentially uncontradicted testimony. There is no dispute but that Adrian Carter and an associate had broken into a Chattanooga residence and were in the process of a burglary when interrupted by the arrival of the uniformed police alerted by activation of a silent burglar alarm. Both Carter and his cohort in crime attempted to escape when they saw the police, and the latter was apprehended at the scene. Carter, however, jumped from a second floor porch to the ground and ignored a call⁴ to halt by Kyle, an experienced police officer with more than twenty years of service, who then shot the fleeing Carter. Kyle testified that he noticed that Carter had an object in his hand that Kyle could not identify as Carter ran in a crouched position from the burglary scene.⁵ Kyle shot Carter at a distance of some fifteen to twenty yards and made no attempt to chase him while shouting the warning to stop. Kyle had cautioned another officer at the burglary scene not to enter the house at the place where the burglar or burglars had apparently broken in, because he felt it was too dangerous. The jury rendered a verdict for the City.

The plaintiff appealed from the jury verdict for the defendant City and from the district court’s refusal to grant a judgment notwithstanding that verdict and/or to grant for a new trial. (No appeal was taken from the grant of summary judgment to defendant Kyle.)

The district court in this case declined to grant either of the remaining parties’ motions for summary judgment holding that the principles set out in Garner II should be retroactively applied and that there were material issues to be submitted to the jury which had been requested by defendant. Judge Milburn, the trial judge, after overruling the parties’ motions for a directed verdict, instructed the jury accordingly and the jury returned a verdict for the defendant City. Plaintiff moved in the alternative for a judgment notwithstanding the verdict and/or for a new trial. The district court denied these motions and judgment was entered for the City based upon the sufficiency of evidence to support the verdict and that “reasonable minds” could have reached “different conclusions” on that evidence. Plaintiff now appeals from the entry of judgment for defendant City and the court’s refusal to grant her post-verdict motions.

Subsequent to the appeal taken by plaintiff, the Supreme Court affirmed our decision in Gamer II in a decision reported as Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), which held that the Fourth Amendment prohibited the use of deadly force under the circumstances of that case. Use of such force was permissible only if used as a last resort to prevent escape of a suspect, when the police officer had probable cause to believe that he was a felon, gave a warning where feasible, and the suspected felon posed a direct threat of death or serious injury to the officer or to others in the community. The court put it succinctly that “[a] police officer may not seize an unarmed, nondangerous suspect by shooting him dead,” but it refused, at the same time, to rule that Tennessee’s fleeing felon statute, relied upon here by the City of Chattanooga, was “unconstitutional on its face.” 471 U.S. at 11, 105 S.Ct. at 1701.

II. RETROACTIVITY OF GARNER II

Plaintiff argues that Tennessee v. Garner standards properly should have been retroactively applied to this case, and that by reason of such application, she should have been granted either a summary judgment on the question of liability or a judgment notwithstanding the verdict. In considering the issue of whether or not to apply retroactively a decision in a civil case, we look to Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), which enunciated a three part analysis:

In our cases dealing with the nonre-troactivity question, we have generally considered three separate factors. First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied ..., or by deciding an issue of first impression whose resolution was not clearly foreshadowed. ... Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” ... Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”

Id. at 106-07, 92 S.Ct. at 355 (citations omitted).

These standards enunciated in Chevron Oil have been repeatedly reaffirmed and clarified as applying the appropriate principles in civil cases of this kind:

In the civil context, in contrast, the “clear break” principle has usually been stated as the threshold test for determining whether or not a decision should be applied nonretroactively. See e.g., Chevron Oil Co. v. Huson, 404 U.S. 97, 106 [92 S.Ct. 349, 355, 30 L.Ed.2d 296] (1971). Once it has been determined that a decision has “establish[ed] a new principle of law, either by overruling clear past precedent on which litigants may have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed,” the Court has gone on to examine the history, purpose, and effect of the new rule, as well as the inequity that would be imposed by its retroactive application. Id., at 106-107 [92 S.Ct. at 355-56]. See also Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U.S. 481, 499 [88 S.Ct. 2224, 2234, 20 L.Ed.2d 1231] (1968).

United States v. Johnson, 457 U.S. 537, 550 n. 12, 102 S.Ct. 2579, 2587 n. 12, 73 L.Ed.2d 202 (1982). See also Goodman v. Lukens Steel Co., — U.S. -, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987); Saint Francis College v. Al-Khazraji, — U.S. -, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987); Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982); McSurely v. Hutchison, 823 F.2d 1002 (6th Cir.1987).

The initial hurdle that must be overcome before a court ruling is given nonret-roactive effect is a determination of whether the decision marks a “new principle of law, either by overruling clear past precedent on which litigants may have relied ..., or by deciding an issue of first impression whose resolution was not clearly fore-shadowed....” Chevron Oil, 404 U.S. at 106, 92 S.Ct. at 355.

The Supreme Court has defined more precisely when a “new principle of law” is established, or when a clear break from prior law has come about.

In general, the Court has not subsequently read a decision to work a “sharp break in the web of the law,” ... unless that ruling caused “such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one....” Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, ... disapproves a practice this Court arguably has sanctioned in prior cases, ... or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.

Johnson, 457 U.S. at 551, 102 S.Ct. at 2588 (citations omitted).

The underlying concern expressed in these cases is the inequity and harshness retroactive application of a new rule of law would impose on parties who had no significant reason to doubt the validity or constitutionality of a statute or practice. A review of the fleeing felon rule’s history indicates that Gamer overturned “a longstanding and widespread practice” the Supreme Court had previously not addressed, “but which a near-unanimous body of lower court authority ha[d] expressly approved.” Id. at 551, 102 S.Ct. at 2588.

The fleeing felon rule originated early at common law and still constituted the law after nearly two hundred years in this country in approximately one half of the states, including Tennessee at the time Gamer was decided. Garner, 471 U.S. at 16 n. 14-16, 105 S.Ct. at 1702-03. Tennessee was one of nineteen states that had codified the principle. Legislatures in some states had abandoned the rule by opting for the Model Penal Code language or had curtailed the rule by permitting use of deadly force only in certain circumstances. Id. at 17 n. 17-18, 105 S.Ct. at 1704 n. 17-18. Significantly, none of the states that had abandoned the common-law rule cited any constitutional basis for their decisions, but concluded as a matter of their own policy that the old rule should be replaced or modified. See Garner, 471 U.S. at 15-19, 105 S.Ct. at 1703-05; see also Sauls v. Hutto, 304 F.Supp. 124, 131 n. 18 (E.D.La.1969) (quoting Prof. Wechsler’s statement of the basis for the Model Penal Code position: “[t]he preservation of life has such moral and ethical standing in our culture and society, that the deliberate sacrifice of life merely for the protection of property ought not to be sanctioned by law” (quoting from 1958 American Law Institute Proceedings at pp. 285-86)).

Prior to this court’s Garner II decision, no court had struck down the fleeing felon rule as unconstitutional as an unreasonable search and seizure under the Fourth Amendment. To the contrary, on three occasions the Tennessee statute was upheld as constitutional by this court or by a three-judge district court convened to determine the statute’s constitutionality.

The first case to examine the Tennessee statute in light of a constitutional challenge was Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.Tenn.1971), decided by a three-judge panel consisting of Circuit Judge Harry Phillips, then Chief District Court Judge Bailey Brown, and District Judge Robert McRae. Plaintiffs in Cunningham brought a wrongful death action under 42 U.S.C. § 1983 against police officers, the police director, and the mayor and also challenged the constitutionality of the Tennessee fleeing felon statute. The three-judge panel was convened “to hear and determine only the question of the facial constitutionality of the involved statute.” Id. at 1074 (emphasis added). Plaintiffs attacked the statute as violative of the Eighth Amendment’s prohibition against cruel and unusual punishment; as unconstitutionally vague and overbroad; as a denial of Sixth Amendment rights to trial by jury, to confrontation of witnesses, and to assistance of counsel; and as a denial of equal protection. That court rejected these numerous constitutional arguments and held that the statute is not “unconstitutional on its face.” Id. at 1076.

Cunningham involved a burglary suspect shot and killed by Memphis police officers “while ... investigating a burglary attempt.” Id. at 1074. The court set out the principle of law applicable:

The involved statute, T.C.A. § 40-808, originally enacted in 1858, provides in its entirety as follows:

“40-808. Resistance to officer. — If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.”

It is agreed by all parties that, as construed by the Tennessee courts, this statute means, in the present context, that an officer may use force that may result in death in preventing the escape of a person that he is attempting to arrest if (1) he reasonably believes that the person has committed a felony and (2) he notifies the person that he intends to arrest him and (3) he reasonably believes that no means less than such force will prevent the escape. The parties also agree that, so construed, the statute merely states the common law. Reneau v. State, 70 Tenn. 720 (1879); Love v. Bass, 145 Tenn. 522, 238 S.W. 94 (1921); Scarbrough v. State, 168 Tenn. 106, 76 S.W.2d 106 (1934); Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938).

Id. at 1074-75.

The attorneys involved in Cunningham for plaintiff included, among others, Jack Greenberg and Drew Days, III, experienced civil rights advocates. In addressing the numerous contentions of unconstitutionality in the shooting and killing of a burglary suspect, the court recognized that in shooting a fleeing felon, as authorized by the longstanding Tennessee law and common law, a police officer acting on behalf of a municipality was acting at risk if he were deemed by a trier of fact not to have complied with the conditions of the statute earlier specified.

It is also true that, under this statute, in determining that extreme force can be used, it must reasonably be ascertained that less force will not prevent escape, but this standard of conduct is not so vague as to require an officer to guess as to its meaning. It is true that a great deal of responsibility and authority is placed by the statute in the hands of the arresting officer, but if it is determined later by a trier of the fact that the officer made the wrong decision, he may be subjected to civil and even criminal liability.

323 F.Supp. at 1076.

One year after the court reached its decision in Cunningham, this court addressed this issue, concluding significantly:

This Statute [Tennessee’s fleeing felon 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.”

Beech v. Melancon, 465 F.2d 425, 426 (6th Cir.1972), cert. denied, 409 U.S. 1114, 93 5.Ct. 927, 34 L.Ed.2d 696 (1973) (citations omitted) (emphasis added). In a concurring opinion, however, Judge McCree expressed his own reservation about the constitutionality of the rule. Judge McCree did, however, express a belief that the officers’ conduct “satisfied constitutional standards in this case.” Id. at 426.

Melancon, once again, involved the shooting of suspects attempting to flee from the scene of a burglary at a Memphis filling station after the suspects ignored warnings by police officers to halt. The same group of attorneys, including Mr. Greenberg and Mr. Days, represented the plaintiff.

Once again this court examined the Tennessee statute in Wiley v. Memphis Police Department, 548 F.2d 1247 (6th Cir.), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed. 2d 78 (1977). In Wiley police officers shot and killed a nighttime burglar who tried to flee when the officers caught him in the act of burglary. In reiterating the constitutionality of Tennessee’s statute, the panel emphasized that the statute had twice been upheld as constitutional in Cunningham and Beech and that the statute’s “invalidity, or that of a similar statute, up to [the time of the shooting] had never been declared by any Court.” Id. at 1250-51. Turning its attention to the four-to-three en banc Eighth Circuit decision in Mattis v. Schnarr, 547 F.2d 1007 (8th Cir.1976), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977), which had found the fleeing felon rule violative of substantive due process, the panel strongly criticized the Mat-tis majority:

The Eighth Circuit is the only Court to our knowledge which has ever held that such a statute, which is so necessary even to elementary law enforcement, is unconstitutional. It extends to the felon unwarranted protection, at the expense of the unprotected public.

We agree with the dissent in the Eighth Circuit case (Mattis v. Schnarr), which was highly critical of the majority opinion for not following the decisions of other Circuits and for embarking on a new course which should have been left to the state legislatures where it belongs.

548 F.2d at 1252.⁶ Concluding that the statute was constitutional, the panel found:

We are of the opinion further that MPD, the City, the Mayor, and the former Mayor, and the Chief of Police had the same right to rely on the law of Tennessee and the decisions of this Court and the decision of the three-judge Court in formulating their policies. Also, they could rely on the presumption that the Tennessee statute was constitutional and on the fact that no court at that time had ever held that statute or a similar statute to be unconstitutional.

Id. at 1254 (emphasis added).

A Memphis firm that had been involved in Cunningham and Mr. Greenberg, among others, represented the Wiley plaintiff. Wiley was concerned with the flight from an apparent burglary of a store in Memphis and the shooting from a distance of some 200 feet of one of the youthful suspects who ignored repeated commands to halt his flight. Nearby guns were found taken from the store, but the suspect was not armed when shot although we stated in Wiley that the officers might have assumed that the suspect was armed. Id. at 1253. Wiley cited Qualls v. Parrish, 534 F.2d 690, 694 (6th Cir.1976), for the following proposition:

Our principal reason for agreeing with the district court that the Tennessee rule should be made the federal rule in this case is that a decision to the contrary would be unfair to an officer who relied, in good faith, upon the settled law of his state that relieved him from liability for the particular acts performed in his official capacity. Most of the state courts that have considered this question follow the old common law rule that deadly force may be used by a police officer only when he has reasonable grounds to believe that the person he is attempting to arrest has committed a felony.

548 F.2d at 1253.

Qualls noted that most of the states, like Tennessee, followed the “old common law rule” that deadly force might be used by an officer against fleeing felons when “he has reasonable grounds to believe that the person he is attempting to arrest has committed a felony.” 534 F.2d at 694 (also noting different positions of ALI Model Penal Code § 3.07 and Restatement I of Torts § 131). Jones v. Marshall, 528 F.2d 132 (2d Cir.1975), reached the same result by interpretation of Connecticut law, similar to the common law on apprehension of fleeing felons, to sustain the good faith defense of a police officer as a matter of law in a 42 U.S.C. § 1983 suit brought on behalf of a youthful unarmed offender killed while fleeing after theft of a car. The court came to this conclusion reluctantly because the fleeing suspect was only 16 years old and had not been warned that if he did not halt he might be shot. The Jones court stated that it preferred the rule that was later adopted by the Supreme Court in Gamer but found no constitutional violation in the Connecticut law, similar in effect to the Tennessee fleeing felon rule, stating:

We are today interpreting § 1983, and within that statute the states must be given some leeway in the administration of their systems of justice_ We cannot conclude that the Connecticut rule [on the arresting officer’s use of deadly force] is fundamentally unfair.”

Id. at 142.

We have traced the history of three § 1983 cases from our circuit during the period from 1971 through 1977 where actions by police officers under color of T.C.A. § 40-7-108 were held to be constitutional in the face of a number of challenges. These suits were handled by able civil rights attorneys who asserted a number of different federal constitutional challenges to the use of deadly force upon fleeing burglary suspects in Tennessee. The factual circumstances in Cunningham, Melancon, and Wiley were not materially dissimilar from the factual circumstances in Gamer. Certiorari was denied following our decisions in Melancon and Wiley. In 1977 we also made it very clear that we did not adhere to the reasoning of the Eighth Circuit in Mattis v. Schnarr, a case vacated by the Supreme Court that same year, and one which we described in Wiley as the only court to hold that a statute similar to T.C.A. § 40-7-108 might be unconstitutional if applied to an unarmed, apparently nondangerous, fleeing felon.

At about the same time that Jones v. Marshall was decided, another circuit court affirmed dismissal of a § 1983 cause of action brought by parents against a police officer and a municipality, charging the defendants with unconstitutional use of deadly force in the fatal shooting of their son while he was attempting to flee from a burglary. See Wolfer v. Thaler, 525 F.2d 977 (5th Cir.), cert. denied, 425 U.S. 975, 96 S.Ct. 2176, 48 L.Ed.2d 800 (1977).

As pointed out, Mattis v. Schnarr, a majority decision with reasoning contrary to that of the Sixth Circuit, was later vacated by the Supreme Court and had no further precedential effect. In Wiley, we expressly adopted the minority view of Mat-tis. ⁷ Until the 1979 panel decision in Garner I then, there was clearly established authority in this circuit, and in almost all other courts that had considered the question, that the ancient fleeing felon rule adopted in Tennessee was constitutional, and that the use of deadly force as a last resort to prevent escape of a fleeing felony suspect was not actionable under § 1983. Gamer I held that the Memphis police officer was immune from liability based on good faith reliance on Tennessee law, but remanded the case for reconsideration in light of the intervening Supreme Court decision, Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

This court in Gamer I recognized the longstanding common law principle that the Tennessee statute in controversy embodied. As Professor Wayne R. LeFave acknowledged:

Under common law, an officer is justified in using reasonable force to make a lawful arrest; this may include deadly force, if reasonably believed necessary, to prevent the escape of a person fleeing from a felony arrest....

The argument that the common law rule is unconstitutional under the Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), shocks the conscience test has not prevailed.

2 W. LaFave, Search and Seizure § 5.1(d) at 238, 239 (1978).

This same rule was set out in respect to pursuit of a remedy against an officer who shot and killed a fleeing moonshiner in Stinnett v. Virginia, 55 F.2d 644, 646 (4th Cir.1932):

As the deceased, according to the testimony of the defense, had unquestionably committed a felony in the presence of the officers, they had the right to arrest him and to use such force as under the circumstances appeared reasonably necessary to effect his arrest or to prevent his escape. And it is a well-settled rule of law that, if the reasonable use of such force results in the death of the felon, the officers may not be held liable therefor. 1 East, 298; Foster’s Crown Law 271, 1 Hale P.C. 489; Ex parte Warner, (D.C.) 21 F.(2d) 542; State v. Garrett, 60 N.C. 144, 84 Am.Dec. 359; State v. Roane, 13 N.C. (2 Dev.) 58; State v. Evans, 161 Mo. 95, 61 S.W. 590, 84 Am. St.Rep. 669; 2 R.C.L. 471; 13 R.C.L. 876, note, 17 Ann.Cas. 900.

Stinnett v. Virginia, 55 F.2d 644, 646 (4th Cir.1932). See also Green v. State, 91 Ark. 510, 121 S.W. 727, 728. To the same effect, see Pearson, The Right to Kill in Making Arrests, 28 Mich.L.Rev. 957, 964 (1930); Note, Justification for the Use of Force in the Criminal Law, 13 Stanford L.Rev. 566 (1961); R. Perkins & R. Boyce, Criminal Law 1098-1102 (3d ed. 1982); and 14 Crim. L.Bull. 285 (1978).

It must be frankly acknowledged that there was substantial inconsistency between the holding in Wiley in 1977 and the decision in Garner I some three years later. Wiley involved individual police officers and the same municipal defendants as did Garner. It was stated in Wiley.

We are of the opinion further that MPD, the City, the Mayor, and the former Mayor, and the Chief of Police had the same right to rely on the law of Tennessee and the decisions of this Court and the decision of the three-Judge Court in formulating their policies.

548 F.2d at 1254.⁸

Despite this language (and the style of Wiley), the panel in Garner I indicated that the prior decisions referred to in Wiley as determinative of the constitutionality of T.C.A. § 40-7-108 did not establish that law’s constitutionality because “those cases dealt with actions against individual officers under § 1983, and not liability based on the ‘policy or custom’ of a governmental entity.” 600 F.2d at 54. Yet it seems clear on reflection that Wiley did indeed deal with, and discuss, formulation and carrying out of Memphis Police Department policy based on the aforesaid Tennessee statute and the common law, then in force in a majority of states. A judge, in analyzing this apparent inconsistency after considering Wiley and other decisions to the same effect in this circuit and Gamer I, stated that “other panels of the Court might prefer a different result,” but concluded that “it is impossible to conclude that the Sixth Circuit has not spoken on the issue of the constitutionality of the fleeing felon rule.” Truss v. Collier, 574 F.Supp. 1249, 1260 (S.D.Ohio 1983) (J. Rice). In Truss, although the district judge indicated that he preferred a different result, the court decided that the City of Springfield, Ohio, and an individual police officer, sued under § 1983 based on claimed constitutional violations, were not liable for use of deadly force on a fleeing burglary suspect. The Ohio city and its officers, like Memphis and its officers, followed a common law rule, although Ohio’s rule had not been codified.

Another student of the then clearly existing status of the law prior to Gamer II reached the same conclusion that Judge Rice reached in Truss v. Collier. See Note, The Unconstitutional Use of Deadly Force Against Nonviolent Fleeing Felons: Garner v. Memphis Police Department, 18 Ga.L.Rev. 137, 144 n. 30 (1983). The dissenting opinion in Mattis v. Schnarr, 547 F.2d 1007 (8th Cir.1974) (en banc) (4-3 decision), which was adopted as stating the correct view of the law by this court in Wiley, 548 F.2d at 1252, observed:

Indeed, prior to this decision, no court has held that the modification of a statute of this sort falls within the judicial purview delimited by the separation of powers contained in our Constitution.

... On the other hand, the majority does not cite, nor can I find, any state where the common law rule on the use of deadly force, either codified or uncodi-fied, has been invalidated by either a state or federal court. Those courts faced with attacks on the common law rule allowing all force reasonably necessary to effect the arrest of fleeing or resisting felons have consistently held that these attacks present policy questions for the legislature, not the judiciary. Jones v. Marshall, 528 F.2d 132 (2d Cir.1975); Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.Tenn.1971) (three-judge court); Hilton v. State, 348 A.2d 242 (Me.1975); Shumann v. McGinn, [307 Minn. 446], 240 N.W.2d 525 (Minn.1976).

547 F.2d at 1021-22 (Gibson, C.J., Stephenson, J., and Henley, J., dissenting).

On remand from this court in Gamer I, the district judge relied specifically on Cunningham, which had not been distinguished in Gamer I, holding that the City of Memphis and its police department were not liable, and responded to the questions posed by the Garner I panel. (C-75-145, opinions, 2/29/80 and 7/8/81, W.D.Tenn.).

The question posed for remand in Garner I did not serve as notice to cities such as Chattanooga that the fleeing felon rule was constitutionally infirm. The question put on remand was: “[I]s a municipality’s use of deadly force under Tennessee law to capture allegedly nondangerous felons fleeing from nonviolent crimes constitutionally permissible under the fourth, sixth, eighth and fourteenth amendments?” 600 F.2d at 55 (footnote omitted). Garner 1 did not discuss precedential decisions indicating that the rule was not constitutional; the court merely inserted a footnote citing various cases including the Second and Eighth Circuit cases previously discussed. Additionally, the panel noted two law journal articles, one of which raised the Fourth Amendment as a possible basis for striking down the common law rule. Id. n. 2, 3; see Comment, Deadly Force to Arrest: Triggering Constitutional Review, 11 Harv. C.R.-C.L.L.Rev. 361 (1976). In light of all the cases reaching an opposite conclusion on the constitutionality of the fleeing felon rule, and particularly in light of prior authority in this circuit, Gamer /’s formulation of the question on remand surely cannot be viewed as a foreshadowing of the rule’s demise. To the contrary, Gamer I gave the cities and their police departments no reasoned basis to conclude that prior decisions of this court that the Tennessee fleeing felon statute was constitutional were destined to be overruled.

This conclusion is supported by two law review articles appearing after the Supreme Court decided Tennessee v. Garner. These articles determined after detailed research that the constitutional analysis in Gamer was both novel and a clear break from past precedent:

The Supreme Court’s affirmance in Gamer represents an unexpected, but nonetheless logical, extension of existing fourth amendment jurisprudence. The decision was unexpected both because the Burger Court has generally curtailed the scope of fourth amendment protections and because the federal and state courts have been almost unanimous in upholding similar deadly force rules. The case also charted new territory because the Court had never before held the means of arrest unreasonable when the officer had probable cause to believe the suspect had committed a crime. In addition, the Court for the first time explicitly recognized that the fourth amendment protects an individual’s interest in life as well as her interests in property and privacy.

The Supreme Court — Leading Cases, 99 Harv.L.Rev. 120, 248 (1985) (emphasis added) (footnotes omitted). Similarly, a comment in the University of Cincinnati Law Review described Gamer II as a “bold and pioneering step” and noted that prior to the 1983 Sixth Circuit ruling, “[ejxcept for one decision that was later vacated by the Supreme Court ... the federal courts consistently had declined to hold that the application of the fleeing felon doctrine resulted in unconstitutional deprivations.” Comment, Tennessee Code Section 40-7-108 Authorizing the Use of Deadly Force by Police Officers Against an Unarmed Suspect of a Nonviolent Felony Is Unconstitutional under The Fourth and Fourteenth Amendments — Gamer v. Memphis Police Department, 710 F.2d 240 (6th Cir.1983), 52 U.Cin.L.Rev. 1154, 1159, 1167 (1983).

A main purpose of Gamer, one of obvious and important value, was to deter conduct of municipalities in the use of deadly force under circumstances where the fleeing felon was reasonably believed to present no threat to the arresting officer or to the community. Another purpose, of course, was to provide compensation to victims who could prove that they posed no threat and who could establish that they were proximately caused injury by reason of the carrying out of a municipal policy which violated their constitutional rights. The two-prong and proper effect of the Gamer decision, then, is to deter municipal officials and to provide compensation to victims in appropriate cases by prospective application of the new principles enunciated by the Supreme Court.

We conclude, therefore, that the first standard enunciated in Chevron Oil was satisfied. Gamer II, as affirmed in Tennessee v. Garner, established a new and unexpected principle of law by setting aside clearly established precedent, particularly in this circuit, on which the City of Chattanooga and its police officers had a right to rely when this most unfortunate episode occurred in 1982. If it did not overrule a clearly established precedent in the Supreme Court, Tennessee v. Garner decided “an issue of first impression whose resolution was not clearly foreshadowed.” 404 U.S. at 106, 92 S.Ct. at 355.⁹

Next we must consider whether retroactive application of Gamer would further or retard the operation of the Court’s ruling. We make this determination “ ‘by looking to the prior history of the rule in question [and] its purpose and effect_’” Chevron Oil, 404 U.S. at 107, 92 S.Ct. at 355 (quoting Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1738, 14 L.Ed.2d 601 (1965)).

Proof of improper use of deadly force may result in compensation to the decedent’s estate, but this result is merely a consequence of applying the Gamer rule. An award of damages against a police officer or a city may encourage future compliance with the rule, but its deterrent effect by retroactive application is highly questionable. Modifying one’s behavior to comply with a future change of a rule, particularly an unforeseeable change, is difficult if not impossible. Retroactive application of Gamer would, therefore, have little, if any, effect of furthering the deterrent goal of Gamer.

We find that the second part of the Chevron Oil analysis is, at best (from the plaintiff’s standpoint) inconclusive. There was no reasonable basis under the law or precedential authority at the time for Chattanooga officials to doubt the constitutionality of the fleeing felon rule in Tennessee. The law in effect did not permit use of deadly force unless reasonably necessary as a matter of last resort to prevent the escape of a suspected felon after a warning. The officer’s conduct was subject to a reasonableness standard. The primary reason for imposing § 1983 liability on a municipality is deterrence. Owen v. City of Independence, 445 U.S. 622, 651-52, 100 S.Ct. 1398, 1415-16, 63 L.Ed.2d 673 (1980). The remand in Gamer I was ordered in light of Monell. Ultimately, in Tennessee v. Garner, the Tennessee statute, and by inference the policy it represents, was not found to be facially unconstitutional, but was “invalid insofar as it purported to give Hymon [the Memphis Police Officer who shot Garner] the authority to act as he did.” 471 U.S. 11, 22,105 S.Ct. at 1701-07. We see little that would further the purpose of deterrence by applying the Gamer rule retroactively under the circumstances. Gamer II clearly had prospective effect. See Robinson v. Bibb, 840 F.2d 349 (6th Cir.1988).

Weighing and balancing of the equities in this case in light of the “prior history of the rule in question” (the fleeing felon rule), and “its purpose and effect,” we are persuaded that the City of Chattanooga did have a legitimate basis at the time to believe that its policy, in conformity with Tennessee law and longstanding common law, was not unconstitutional. See Chevron Oil, 404 U.S. at 106, 92 S.Ct. at 355. The second standard of Chevron Oil, then, was met, and it is appropriate to apply the new principle of Gamer II and Tennessee v. Gamer prospectively. The conduct and policy in question in Gamer and in the instant case were not found by our court or by the Supreme Court to be conduct that shocks the conscience as in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952); rather they were described as “constitutionally unreasonable.” 471 U.S. at 11, 105 S.Ct. at 1701 (emphasis added). The Court noted further that if “there is probable cause to believe that he [the felony suspect] has committed a crime involving the infliction or threatened infliction of serious physical harm, deadly force may be used if necessary to prevent escape....” 471 U.S. at 11, 105 S.Ct. at 1701. The direction of change of policy in Gamer was, therefore, not a change to preclude infliction of deadly force on a fleeing felony suspect, but rather to require application of a further reasonableness standard: probable cause to believe that the suspect was a threat to the officer or may have threatened serious harm to others. Prospective rather than retroactive application of that refinement, we believe, would not retard the operation of that new constitutional policy.

Under the third standard of Chevron Oil for determining whether to apply a principle or decision retroactively in the civil liability context, we must “weigh the inequity imposed by retroactive application.” 404 U.S. 107, 92 S.Ct. at 355. In Pembaur v. City of Cincinnati, 475 U.S. 469, 106 S.Ct. 1292, 89 L.Ed.2d 452 (1986), the Supreme Court decided whether the single act of a responsible municipal official might constitute a policy decision within the meaning of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). It held that such action by a municipal “policymaker” may subject the county to § 1983 liability “under appropriate circumstances.” 475 U.S. , 106 S.Ct. at 1298. In Pembaur, however, it was noted that not “every act of municipal officers with final authority to effect or authorize arrests and searches represents the policy of the municipality.” Id. at 486, 106 S.Ct. at 1301 (White, J., concurring). Liability was based in Pemb-aur upon retroactive application of Steagald v. United States, 451 U.S. 204, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981), and the defendant did not challenge and was deemed to have “conceded” the retroactivity of Steagald. See 475 U.S. at 487-88, 106 S.Ct. at 1302-03. Justice Powell, dissenting in Pembaur, did discuss the re-troactivity question:

[Retroactive application ... in this context would produce substantial inequitable results by imposing liability on local government units for law enforcement practices that were legitimate at the time they were undertaken. See Griffin v. Illinois, 351 U.S. 12, 26, 76 S.Ct. 585, 594, 100 L.Ed. 891 (1956) (Frankfurter, J., concurring in the judgment) (“We should not indulge in the fiction that the law now announced has always been the law ...”). Civil liability should not attach unless there was notice that a constitutional right was at risk. Procunier v. Navarette, 434 U.S. 555, 562 [98 S.Ct. 855, 859, 55 L.Ed.2d 24] (1978).

Pembaur, 475 U.S. at 494-95, 106 S.Ct. at 1306 (Powell, J., dissenting (joined by Burger, C.J., and Rehnquist, J.)).

The jury in this case heard all the evidence, was given instructions which were favorable to plaintiff in applying Garner II retroactively, and ruled in favor of the defendant City. It may fairly be said that often the jury generally reflects the conscience of the community, and thus the verdict here may reflect a kind of equitable value judgment. Cities such as Chattanooga are faced with serious risks and burdens in carrying out their police powers under the general Tennessee law and the long established common law as to capture of fleeing felons. The City ought not be deterred in its exercise of what it has good reason to believe is constitutional conduct in the face of repeated and unsuccessful court challenges to the policy it pursued. This was more than merely exercising good faith; it was acting in reliance on what appeared over many years to have been valid and proper state directed police conduct and policy. The burden upon the defendant municipality and others in similar positions if we were to decide that the equities weighed in favor of plaintiff, who had not even raised a fourth amendment claim at the time Garner II was decided, would be substantial. A state or city having notice that a given and settled or legal principle will henceforth be considered unenforceable or violative of newly decided federal constitutional principles may have an opportunity in the future to protect itself against liability by changing its policies thereafter. To impose liability against the City in the present situation would be inequitable and might present severe financial strain in the case of smaller municipalities.

That reasoning applies with equal force in this case because the City of Chattanooga was justified in relying on the apparently established constitutionality of the Tennessee fleeing felon rule under Sixth Circuit rulings, a three-judge district court decision in the circuit, and the nearly unanimous judicial approval of the common law rule. To change the rule retroactively to the detriment of defendants and potentially hundreds of other municipalities that would be adversely affected by such a ruling would be unfair.

There can no longer be support for the view, expressed in Smith v. General Motors Corp., 747 F.2d 372 (6th Cir.1984) (en banc), that merely because a decision which may establish an entirely new precedent was applied in the case under consideration that it should, ipso facto, therefore become controlling automatically and retroactively to all like situations which may have arisen before that decision. That rationale flies in the face of Chevron Oil, which has consistently been followed in the consideration and application of standards heretofore discussed. See Thomas v. Shipka, 829 F.2d 570, 571 n. 1 (6th Cir.1987), wherein we stated:

In Smith we developed a rule for determining¹ the retroactivity of Supreme Court decisions predicated upon whether the Supreme Court had applied its decision to the case before it. If it did, we concluded that the Supreme Court was demonstrating its intent that its decision should be applied retroactively. However, the Supreme Court’s decision in St. Francis College [Si. Francis College v. Al-Khazraji, — U.S. -, 107 S.Ct. 2022, 93 L.Ed.2d 21 (1987) ], as well as its decision in Goodman [Goodman v. Lukens Steel Co., — U.S. -, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987)], clearly make the rationale of Smith suspect. We conclude that Smith can no longer be the law of this circuit in light of the more recent Supreme Court pronouncements.

Shipka involved a careful study and consideration of Chevron Oil standards in deciding whether a recently adopted principle in a decision of this court should be applied retroactively to other civil cases. The first factor in Chevron Oil, whether there had been “a departure from clear precedent” was considered in Shipka to be “most important” and “also inextricably interrelated with the third factor in the Chevron analysis which focuses on the equitable considerations involved ... [and which] is in large part dependent upon the outcome of the analysis under the first part of the test.” 829 F.2d at 573, 574. We also considered and applied Chevron Oil standards and factors in considering retroactivity of Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), in the recent case of McSurely v. Hutchison, 823 F.2d 1002 (6th Cir.1987), cert. denied, — U.S. -, 108 S.Ct. 1107, 99 L.Ed.2d 269.

The cases cited in Thomas v. Shipka, supra, from the Supreme Court were decided after Smith v. General Motors, supra, and each discussed in some detail the applicability of Chevron Oil Co. v. Huson, supra. The first of these cases, St. Francis College v. Al-Khazraji, — U.S. -, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987), stated:

But Chevron Oil Co. v. Huson, supra, counsels against retroactive application of statute of limitations decisions in certain circumstances. There, the Court held that its decision specifying the applicable state statute of limitations should be applied only prospectively because it overruled clearly established circuit precedent on which the complaining party was entitled to rely, because retroactive application would be inconsistent with the purpose of the underlying substantive statute, and because such application would be manifestly inequitable. The Court of Appeals found these same factors were present in this case and foreclosed retroactive application of its decision in Goodman. We perceive no good reason for not applying Chevron where Wilson has required a Court of Appeals to overrule its prior cases. Nor has petitioner persuaded us that there was any error in the application of Chevron in the circumstances existing in this case.

107 S.Ct. at 2025-26.

Following the rationale above expressed, the Court affirmed the Third Circuit and did not apply the “usual rule” that the case should be decided in accordance with the law existing at the time of decision. The Court noted that its decision in Wilson v. Garcia required the appellate court to overrule its prior cases; in the controversy at hand, Gamer effectively overrules prior Sixth Circuit cases, Cunningham, Melan-con, Wiley, and Qualls.10 This of course, is a different situation from a change in the law made by the Supreme Court while a case is pending on direct appeal from the district court to the court of appeals (as happened in Gamer I where Monell v. Dept. of Social Services, supra, changed the law on municipal liability while Gamer was on direct appeal). See United States v. Schooner Peggy, 1 Cranch 103, 110, 2 L.Ed. 49 (1801).

Again, the second Supreme Court case relied upon in Thomas v. Shipka, supra, to hold Smith no longer to be controlling on this point, was Goodman v. Lukens Steel Co., — U.S. -, 107 S.Ct. 2617, 96 L.Ed. 2d 572 (1987). The Court reiterated the rule expressed in St. Francis College:

The usual rule is that federal cases should be decided in accordance with the law existing at the time of decision.... But Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), advises that nonretroactivity is appropriate in certain defined circumstances. There the Court held that a decision specifying the applicable state statute of limitations in another context should not be applied retroactively because the decision overruled clear Circuit precedent on which the complaining party was entitled to rely, because the new limitations period had been occasioned by a change in the substantive law the purpose of which would not be served by retroactivity, and because retroactive application would be inequitable.

107 S.Ct. at 2621 (citations omitted).

The Goodman Court approved retroactivity of its Wilson decision because “when the complaint was filed ... there was no established precedent.” Id. at 2622. Again, in the instant controversy, when Carter filed her complaint precedent was clear in this circuit that constitutional challenges to Tennessee’s fleeing felon were uniformly unavailing. In footnote 8 in Goodman, the Court referred to Smith v. Pittsburgh, 764 F.2d 188 (3d Cir.), cert. denied, 474 U.S. 950, 106 S.Ct. 349, 88 L.Ed.2d 297 (1985), where the court applied the three-prong Chevron Oil standard to decide whether a ruling should be applied retroactively, holding:

... where application of the law had been erratic and inconsistent, without clear precedent on which plaintiff [or litigant] could reasonably rely ... a subsequent Supreme Court decision on the applicable limitations period cannot be said to have overruled clear past precedent on which the litigants may have relied.

Smith, 764 F.2d at 194-95.

In light of these recent Supreme Court cases, we expressly adopt the reasoning of Thomas v. Shipka to the effect that the holding of Smith v. General Motors is no longer valid. Accordingly, we have applied the test for nonretroactivity established in Chevron Oil to Gamer, and we have concluded that there was clear and consistent precedent in this circuit upholding the constitutionality of the Tennessee fleeing felon statute prior to Garner II.¹¹

Judge Merritt argues in his dissent that Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), narrows the Chevron standards for considering retroactivity. One searches in vain, however, for any citation or reference to Chevron in the lengthy majority opinion in Owen or to any discussion of standards of retroactivity. Simply put, Owen decided, counter to what the dissent asserted was the Court’s prior precedent, that a municipality may not claim the kind of immunity based on good faith that its officers or agents may claim. Owen was terminated by the city council as police chief allegedly without proper notice or an opportunity to be heard, and he filed a § 1983 action against the city, the city manager, and council members in their official capacities. The case had an interesting procedural history, but after an initial court of appeals’ determination to reverse, at least in part, the district court’s judgment for the defendant city, it was remanded (as in Garner) for further consideration in light of the intervening Supreme Court decision in Monell v. Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Upon remand, the court of appeals denied any relief against the city “because its officials acted in good faith and without malice.” 589 F.2d 335, 338 (8th Cir.1978). The Supreme Court reversed, discussing in detail the effect of Monell, which had overruled the doctrine of Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), which held municipalities not liable under § 1983.

It is important to note that the defense of the city and the council in Owen was not that it had not “twice refused petitioner’s request that he be given written specification of the charges against him and an opportunity to clear his name,” but rather that its agents had acted in good faith since Owen, they maintained, had no claim which involved a constitutional property or liberty interest. 445 U.S. at 634 n. 13,100 S.Ct. at 1406 n. 13. The real defense in Owen was not whether the alleged unconstitutional acts of denial of due process had occurred, or whether the alleged violation was the proximate cause of damages, but rather whether under the circumstances a municipality’s defense of good faith immunity could be claimed. The situation as to Carter is different; the City of Chattanooga claims no constitutional violation because the officer had probable cause to act, and because its policy of adhering to the Tennessee law was not the proximate cause of any constitutional injury to Carter. Owen, like Gamer, did apply a “new” constitutional interpretation to the facts before it, but there was no discussion of retroactivity or of Chevron standards.

We cannot agree, therefore, that Owen narrows and confines the Chevron standards dealing with retroactivity of a case involving, as did Gamer, a new legal principle which overruled clear past precedent and a long history of common law, and/or decided an issue of first impression. Owen simply put municipalities on notice that they could be held liable, unlike individuals acting under color of law, for policies which proximately caused constitutional injury despite the municipality’s contention that it acted in good faith. Contrary to Judge Merritt’s assertion, our decision in this case does not “adopt a uniform rule that all judicial decisions apply prospectively only.” It reiterates instead the rationale and effect of Chevron, which has been repeatedly cited with approval since it was announced some seventeen years ago.

We have concluded that Garner (Garner II and Tennessee v. Garner) constituted a departure from clearly established prior precedent or law. We believe that it logically follows that it would bring about a “substantial inequitable” result to apply Gamer’s new principle retroactively to the City of Chattanooga.

We are here considering the retroactivity of a prior decision in a civil case context, not in application to a criminal case involving constitutional rights of other similarly situated criminal defendants. The general rule, even in the criminal case context, about retroactive application of a “clear break with the past” rule was set out in United States v. Johnson, 457 U.S. 537, 549-50, 102 S.Ct. 2579, 2586-87, 73 L.Ed.2d 202 (1982):

[W]here the Court has expressly declared a rule of criminal procedure to be “a clear break with the past,” Desist v. United States, 394 U.S. [244] at 248, [89 S.Ct. 1030, 1033, 22 L.Ed.2d 248], it almost invariably has gone on to find such a newly minted principle nonretroactive. See United States v. Peltier, 422 U.S. 531, 547, n. 5 [95 S.Ct. 2313, 2322, n. 5, 45 L.Ed.2d 374] (1975) (Brennan, J., dissenting) (collecting cases). In this ... type of case, the traits of the particular constitutional rule have been less critical than the Court’s express threshold determination that the “ ‘new’ constitutional interpretation] ... so change[s] the law that prospectivity is arguably the proper course,” Williams v. United States, 401 U.S. [646,] at 659 [91 S.Ct. 1148, 1156, 28 L.Ed.2d 388] [ (1971) ] (plurality opinion). Once the Court has found that the new rule was unanticipated, the second and third Stovall factors — reliance by law enforcement authorities on the old standards and effect on the administration of justice of a retroactive application of the new rule — have virtually compelled a finding of nonretroactivity. See, e.g., Gosa v. Mayden, 413 U.S. [665], at 672-673, 682-685 [93 S.Ct. 2926, 2932-33, 2937-38, 37 L.Ed.2d 873 (1973)] (plurality opinion); Michigan v. Payne, 412 U.S. [47], at 55-57, [93 S.Ct. 1966, 1970-71, 36 L.Ed.2d 736 (1973)].

A deeply divided Supreme Court was concerned in Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 716, 93 L.Ed.2d 649 (1987), about this “clear break rule” when “only one of many similarly situated defendants receives the benefit of the new rule” in a criminal case context, particularly when there was evidence of unconstitutional racial discrimination or racial exclusion in jury selection which may have tainted an entire criminal proceeding and resulting conviction of black defendants whose cases were pending on direct review. In that situation, the court held that Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), was to be applied retroactively to those cases pending on direct review.

It is clear that Griffith does not overrule Chevron Oil, nor should it, by implication, be applied in a civil case context.

We noted in Johnson that our review did not address the area of civil retroac-tivity. See 457 U.S. at 563, 102 S.Ct. at 2594. That area continues to be governed by the standard announced in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-107, 92 S.Ct. 349, 355, 30 L.Ed.2d 296 (1971).

107 S.Ct. at 713 n. 8 (emphasis added).

We are chastised by Judge Merritt in his dissent for not acknowledging a number of cases that allegedly “have applied Gamer retroactively.” {infra, p. 1143 of Merritt Opinion). We address those cases but note, as he concedes, that these “courts did not expressly analyze whether Gamer should have retroactive effect.” Indeed, none of them (except one from the Eleventh Circuit) ¹² refers to Chevron (or to any asserted Owen v. City of Independence restriction upon Chevron), nor do they make any retroactivity analysis about the effect of Gamer on the use of deadly force by police as authorized by the common law and/or by a law such as that of Tennessee in the case of use of such force as a reasonable last resort to capture a fleeing felon. Some of these cases do not apply to a municipal defendant such as the City of Chattanooga.

First, we refer to Fernandez v. Leonard, 784 F.2d 1209 (1st Cir.1986). That case involved the shooting by an FBI agent of a kidnap victim in an attempt to capture the kidnappers. The court reversed a grant of summary judgment to the FBI agent based on immunity claims. Of course, the City of Chattanooga may claim no immunity since Owen. The Fernandez case is not really applicable here because the court described the individual defendant’s actions as “so excessive and brutal that it ‘shocks the conscience’ ” under the rationale of Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). 784 F.2d at 1216. “There was no need for the application of any force by the defendant” according to Fernandez. Id. It held generally that by 1976 it was a violation of due process rights and of unlawful seizure rights for government officials to employ such use of excessive, deliberate, and unnecessary force to bring about the death of an innocent victim. The court did note that “... Garner decides a novel question of law_” Id. at 1217 n. 3 (emphasis added).

Kidd v. O’Neil, 114 F.2d 1252 (4th Cir.1985), overruled on other grounds by Justice v. Dennis, 834 F.2d 380 (4th Cir.1987), involved a case of claimed police brutality in beating a prisoner while in custody. The dismissal of the pro se plaintiffs case was reversed, because the court held that brutality and excessive use of force upon a prisoner involved a Fourth Amendment claim, and that there was “confirmed longstanding authority to the same effect in this circuit.” Id. at 1255. We see little, if any, applicability of the reference to Garner in Kidd to the situation in the instant case.

Griffin v. Hilke, 804 F.2d 1052 (8th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 3184, 96 L.Ed.2d 673 (1987). In this § 1983 case, there was no consideration or discussion of municipal liability, and the court did not discuss the individual defendant’s qualified immunity claim. The defendant’s motion for a new trial was ordered because it was held to be error for plaintiff’s counsel to have argued to the jury that the government was financially responsible for the individual officer’s actions.

Ryder v. City of Topeka, 814 F.2d 1412 (10th Cir.1987). Plaintiff sued in respect to a 1979 episode in which she was shot by a pursuing police officer after a suspected Pizza Hut robbery. The court affirmed jury verdicts for the defendant police officer and city despite the fact that plaintiff was a 14 year old female who was discovered to be unarmed after being shot as she fled the crime scene. The Ryder court acknowledged some disagreement with Pruitt v. City of Montgomery, supra, in its interpretation of Gamer. The Ryder court found constitutionally permissible “[i]n limited circumstances, ... the use of deadly force to apprehend a fleeing felon.” 814 F.2d at 1417. It observed further:

There might be numerous situations that would justify a police officer’s belief that a suspect was armed and that he posed an immediate threat to the officer, even though the suspect was not in fact armed.... [W]e conclude that whether a particular seizure is reasonable is dependent on the “totality of the circumstances” and not simply on whether the suspect was armed.

Id. at 1419 n. 16 (citation omitted).

Jamieson v. Shaw, 772 F.2d 1205 (5th Cir.1985). This case involved a minor passenger injured in an automobile when the police set up a roadblock to stop the driver, an allegedly known mental patient, who had committed a traffic offense. (There was a serious doubt in Jamieson as to whether the driver was a fleeing felon in any event, and the two passengers with him were innocent parties as the police knew. See id. at 1207.) A vigorous dissent took issue with the majority’s reversal of the dismissal of the claim. Jamieson held that under the circumstances asserted, the Fourth Amendment indicates that a “seizure” must be reasonable and that a roadblock may constitute a seizure. There was no discussion about whether this was actually a “fleeing felon” situation.

Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.1984). This 75 page opinion makes one footnote reference to Garner. Id. at 1278. Under Wisconsin law the city was held liable to indemnify defendants, white police officials, held liable by a jury as conspirators for being involved in a grossly negligent and unnecessary racially motivated killing of a black man who was a fleeing misdemeanant, and for an attempt over many years to cover up the true facts of the killing. The issue in Gamer was found to be “to some extent related” to the issues involved in Bell. We see no real relationship of Garner to the Bell situation, and we see no relationship between the unlawful and unnecessary use of deadly force upon a fleeing unarmed, and known to be unarmed, misdemeanant whose tail light was out, as was the case in Bell, and the circumstances in the instant case. Municipal liability in Bell was based on indemnity principles only, and not on any municipal policy or practice.

We have not previously cited or relied upon these cases cited by Judge Merritt in his dissent because they do not discuss or consider the issues which are here involved concerning municipal liability under § 1983 or whether, under Chevron principles, the Supreme Court’s Gamer decision should be retrospectively applied. We do not believe they are authority which deals with the kind of Chevron analysis which Judge Merritt himself seems to concede is warranted in this case.

In summary, in applying the Chevron Oil analysis in this case, we conclude that Gamer II and Tennessee v. Gamer should not have been retroactively applied to the City of Chattanooga. On that basis, the defendant City would be entitled to judgment as a matter of law. The district court instructed the jury regarding the principles articulated in Garner II, aff'd sub nom. Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), and the jury returned a verdict for the City. The trial judge was, however, in error in submitting the issues in this case to the jury on the basis of retroactive application of Gamer for the reasons heretofore stated. He should have granted judgment as a matter of law to the City because it was not at the time following a clearly established unlawful or unconstitutional policy. Accordingly, we reverse the judgment of the district court on the issue of retroactivity and grant judgment for the City on its cross-appeal.

While we affirm a judgment for the defendant City of Chattanooga, for the reasons stated, we hold that the district court was in error in instructing the jury by retroactive application of the principles set out in Gamer II, which had been decided only a short time before. Carter, in effect, received more favorable consideration than she was entitled to, but the jury, nevertheless, returned a verdict for defendant. We hold that the district court’s analysis of the prerGamer II law in this circuit on December 21, 1982, the date of the fatal shooting of Carter, was correct in its January 27, 1984 memorandum¹³ and that he should have granted the City’s motion for summary judgment or the City’s motion for directed proof at the conclusion of all the evidence. (It is interesting to note that plaintiff had not even presented a fourth amendment claim at the time Gamer II was decided.) The district court, however, was correct in overruling plaintiff’s motion for a new trial and for judgment notwithstanding the verdict. In short, it was not error to enter a judgment for the defendant City based upon the proof and evidence in this case and upon nonretroactive application of Gamer II. The City, at the critical time was not following a clearly established unlawful, or unconstitutional policy. We accordingly affirm the entry of judgment for the City but for the reasons herein set out, not for the reasons expressed by the district court.

We have reached the same result as did the district court, judgment for the defendant City of Chattanooga, but on different grounds. Even if Gamer II and Tennessee v. Gamer were deemed to be properly retroactively applied, however, there is a strong argument that may be made for the affirmance of the jury verdict. In light of the full discussion herein and our determination that the Gamer rule should not have been retroactively applied to the City of Chattanooga, we find no reason to consider or rule upon that issue.

We AFFIRM the judgment for the City of Chattanooga for the reasons stated.

1 . TCA § 40-7-108 provides:

Resistance to officer. — If, after notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may use all the necessary means to effect the arrest.

2 . We refer to the decision reported at 600 F.2d 52 as Garner I; the one at 710 F.2d 240 as Garner II.

3 . A panel of this court considered the appeal and reached a decision reported in 803 F.2d 217 (6th Cir.1987). That decision has been vacated by our decision to hear this case en banc.

4 . The warnings given by the police were: "Halt, halt, or I’ll shoot."

5 . The object was later found to be some kind of cloth.

6 . None of the cases cited, which discussed the § 1983 liability of a police officer or municipality, made reference to the case of Jenkins v. Averett, 424 F.2d 1228 (4th Cir.1970). That case considered the shooting of a youthful unarmed black, who "had committed no crime nor was he ever charged with one,” 424 F.2d at 1229, and who had been cornered and wounded "accidentally” by defendant officer. Jenkins is clearly inapposite, although a divided court made reference to a possible Fourth Amendment violation in the case of an officer guilty of "gross or culpable” conduct, in a situation involving "raw abuse of power” with clear racial overtones. 424 F.2d at 1232.

7 . In Landrum v. Moats, 576 F.2d 1320 (8th Cir.), cert. denied, 439 U.S. 912, 99 S.Ct. 282, 58 L.Ed. 2d 258 (1978), applying Nebraska fleeing felon law, which was different from the common law in effect in Tennessee and in Missouri, that court reiterated its prior fleeing felon rationale.

8 . MPD refers to the Memphis Police Department; the "City” to Memphis. The three-judge court decision was Cunningham v. Ellington, supra.

9 . The dissent in Tennessee v. Garner emphasized that the Court had effectively created a new Fourth Amendment right, and cited the contrary policy consideration in Wiley, in which certiora-ri had been denied in 1977. The dissent also observed critically that the majority had decided to be unconstitutional for the first time a practice which "predates enactment of the Bill of Rights and continues to be accepted by a substantial number of the States," and cited Cunningham v. Ellington, 471 U.S. at 28, 30, 105 S.Ct. at 1710, 1711. It is interesting that the majority opinion in Tennessee v. Gamer cited none of the Sixth Circuit authority discussed herein or Cunningham; rather, it made reference to Mattis v. Schnarr, 547 F.2d 1007 (8th Cir.1976), which it had vacated in 1977. 471 U.S. at 19, 105 S.Ct. at 1705; see also 471 U.S. at 18 n. 21, 105 S.Ct. at 1705 n. 21, which referred to the Mattis dissent.

10 . Haislah v. Walton, 676 F.2d 208 (6th Cir.1982), decided April, 1982, involved recapturing a fleeing misdemeanant, not a fleeing felon, and the use of deadly force under Ohio law in that circumstance. Judge Edwards, a member of the Gamer panels, in Haislah referred to Gamer I and also to Wiley, Qualls, and Melancon (not Cunningham, but also surprisingly to Mattis v. Schnarr, 547 F.2d 1007 (8th Cir.1976), repudiated by this court in Wiley ). See also the dissent of Judge Weick in Hayes v. Memphis Police Department, 571 F.2d 357 (6th Cir.1978), aff'd after remand, 634 F.2d 350 (6th Cir.1980). Hais-lah held that it was improper to interject the "fleeing felon” rule through a misleading jury instruction. No issue about the constitutionality of the "fleeing felon” statute of Ohio, much less that of Tennessee, was before this court in Haislah, in which there was also a strong dissent. No party in Haislah argued that Ohio law justified deadly force to capture one suspected merely of being a misdemeanant. Haislah was not cited in Garner II, but it was noted in Truss v. Collier, 574 F.Supp. 1249 (S.D. Ohio 1983), as indicating no change in Sixth Circuit law prior to Gamer II. It has not been cited in any other fleeing felon case to our knowledge. In fact, after the issue was first decided in Cunningham, no case prior to Gamer in this circuit indicated that the constitutionality of the Tennessee fleeing felon statute was in doubt.

11 . There was an entirely different circumstance in the Eleventh Circuit relating to the Alabama fleeing felon statute where there was no prior clear precedent as to its constitutionality. See Acoff v. Abston, 762 F.2d 1543 (11th Cir.1985), and Pruitt v. City of Montgomery, 771 F.2d 1475 (11th Cir.1985). Neither of these Eleventh Circuit cases cited the Sixth Circuit and other authority herein discussed and relied upon; instead both cited Mattis v. Schnarr, 547 F.2d 1007 (8th Cir.1976), expressly rejected by this court and vacated by the Supreme Court.

12 . That case, Pruitt v. City of Montgomery, 771 F.2d 1475 (11th Cir.1985), is referred to and distinguished at n. 11.

13 . This memorandum cited Cunningham, Beech, Qualls, and Wiley with the latter’s criticism of Mattis v. Schnarr, supra, noted.

1 . See J. Gray, The Nature and Sources of the Law 218-24 (2d ed. 1921); M. Hale, History of the Common Law 141 (5th ed. 1794); Note, Prospective Overruling and Retroactive Application in the Federal Courts, 71 Yale LJ. 907 (1962).