Appeal from the United States District Court for the Eastern District of Wisconsin - No. 71 C 578 Myron L. Gordon, Judge.
Cummings and Tone, Circuit Judges, and Wyzanski, Senior District Judge.*fn*
In this action brought under 42 U.S.C. § 1983, plaintiffs Edmund Clark and Edward Travis, both minors, sued defendant, a Milwaukee police officer, for violating their constitutional rights by purportedly using excessive force while arresting them.*fn1 In a bench trial, the district court concluded that defendant had used excessive force in making these arrests. Clark was awarded $5000 in damages and Travis was awarded $1500.*fn2
As shown by the evidence, at 10:00 p.m. on January 11, 1971, defendant and a fellow police officer responded in their squad car to a radio dispatch providing: "Entry in progress. Three Negro males on the scene across from 3175 North 29th Street" in Milwaukee, Wisconsin. When the officers arrived on the scene, they found the two principal plaintiffs, each 13 years of age, and 14-year-old Joseph French outside 3164 North 29th Street. They had been ringing the front and rear doorbells of the almost unlighted home of Mrs. Emma Schwister, who thereupon called the police. Upon observing the police officers, Clark, Travis and French ran directly to the edge of the lot located at 3160 North 29th Street. Believing that plaintiffs, who were five to ten yards away from defendant when he first observed them, had attempted to commit a burglary, defendant pursued them and ordered them to halt. When defendant gave a second command to halt, the fleeing Travis turned back toward defendant. Travis was wielding a thin 12 inch steel blue file which, defendant claims, resembled a long-barreled revolver. At that moment, defendant fired a warning shot over plaintiffs' heads. When, moments later, Travis again turned toward defendant with the file in his hand, defendant discharged his shotgun, wounding both Clark and Travis. When the shotgun blast that injured them was fired, plaintiffs were approximately 45 feet from defendant in the gangway adjacent to 3160 North 29th Street.
At the conclusion of the trial, the district court made certain findings from the bench. Preliminarily, the court ruled that plaintiffs had the burden of showing by the preponderance of the evidence that there was unreasonable force applied. The court also stated that much of the plaintiffs' credibility was in doubt. The court then remarked:
"I also believe that the officers were justified in believing that there was a felony in progress, that all the circumstances of the telephone calls reporting the alleged felony in progress, coupled with finding the three men at about the right place without any apparent justification for their having innocently come upon Mrs. Schwister's locale, all lead me to believe that the officers were entitled to conclude that there was probable cause to believe that a felony either had been committed or was in progress and that these three men reasonably were ones who had engaged in it."
Judge Gordon then remarked that he would have to evaluate whether the circumstances warranted defendant's use of a gun, stating:
"On the one hand, we have a felony in progress; we have probable cause to believe that the three men who were observed were perpetrators of that felony; we have darkness; we have failure to halt, at least by several of the suspected perpetrators. On the other hand, we have great force used -- shotgun; we have juvenile perpetrators.
"I think the issue that's probably going to have to be determinative -- the issues that are going to be determinative are whether Mr. Ziedonis reasonably believed, from the circumstances of either fear, force, own safety or for that of his fellow officers, that there was justification to shoot at the plaintiffs."
Several weeks later in a decision and order reported in 368 F. Supp. 544 (E.D. Wis. 1973), the district court concluded that defendant's use of "deadly force"*fn3 was unreasonable and excessive under the circumstances. The court entered judgment for plaintiffs on the basis of its findings. On appeal, defendant contends that his use of deadly force was justified because: (1) defendant reasonably believed that the shooting was necessary to protect himself and his partner from imminent threat of death or great bodily harm and (2) as a police officer, defendant was privileged to use deadly force to apprehend plaintiffs whom he reasonably believed to be fleeing felony suspects.
Self-defense and Defense of Partner
The law has traditionally recognized that a person may employ deadly force against another, if such person reasonably believes such force necessary to protect a third person or oneself from imminent death or great bodily harm, without incurring civil liability for injury to the other.*fn4 Since this is a suit under 42 U.S.C. § 1983, federal law determines the adequacy of the defenses asserted.*fn5 This Court accepts the traditional principle noted above as a complete defense to an action against a state official under Section 1983. Nevertheless, we reject defendant's contention that the district court erred in finding this defense inapplicable in this case.
As to defendant's contention that he viewed Travis' first file-wielding move "as a confrontation by someone holding a long-barreled revolver, and that he feared for his life," the trial judge noted that the street area was lighted, the distance between the two was short, the file did not resemble a gun, and defendant only fired over the head of Travis at that time. In concluding that defendant had used unreasonable force in firing his ...