of proof to support his claim. Id. Thus, the "preliminary
question for the judge [is] not whether there is literally no
evidence, but whether there is any upon which a jury could
properly proceed to find a verdict for the party producing it,
upon whom the onus of proof is imposed." Anderson, 106 S.Ct. at
2511, quoting Improvement Co. v. Munson, 14 Wall. 442, 448,
81 U.S. 442, 448, 20 L.Ed. 867 (1872). In other words, the inquiry
is "whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Id., 106 S.Ct. at
Applying this standard, the Court finds the following.
On January 13, 1984, at approximately 7:00 p.m. Officer
Childers responded to a radio dispatch reporting a robbery in
progress at the First National Bank of Taylorville. Upon arriving
at the scene and parking his squad car in a parking lot directly
east of the bank, the officer proceeded to a side window where he
observed the suspect in a stocking mask threatening the
institution's employees. Although Childers testified that he
could not clearly see that Ford held a gun in his outstretched
arm because of a pillar or other obstruction, he clearly saw
several individuals in the bank holding their hands above their
When the suspect moved toward the front door of the bank to
make an escape, Officer Childers positioned himself with his gun
drawn near the northeast corner of the building behind a car.
Within a few seconds, the criminal fled holding a grocery bag.
While Ford claims not to have heard any warnings, the officer
testified that he immediately cried, "Halt, police." The suspect
was unresponsive. Childers again yelled, "Halt, police." By this
time, Ford had proceeded to cross main street in front of the
bank and was approximately thirty to forty feet ahead of
Childers. The criminal at no time turned to view the officer. Nor
apparently did Ford threaten him in any manner, although the
officer stated he was concerned for his personal safety. Upon the
suspect's failure to yield, Childers aimed and fired his revolver
twice. Ford continued to run, disappearing into an alley.
Unaware that he had wounded the suspect, the police officer
returned to the squad car to scan the area where his quarry had
fled. Shortly thereafter, Childers located Ford in a nearby alley
hanging across a fence which he had seemingly tried to jump. The
officer ordered him to place his hands up, whereupon Ford stated,
"I'm hit." The suspect was then taken into custody without
resisting. A bag of money, as well as the mask and gun used in
the commission of the crime, were found in the vicinity of the
arrest. Ford spent approximately 20 days in the hospital for
treatment of a gunshot wound.
To recover damages in a civil rights action under 42 U.S.C. § 1983,
the plaintiff must prove as part of his burden that the
defendant's actions resulted in a deprivation of constitutional
rights. Crowder v. Lash, 687 F.2d 996, 1002 (7th Cir. 1982). In
the case at bar, Ford maintained, inter alia, the arresting
officer's actions constituted an unreasonable seizure under the
Fourth Amendment which, in turn, deprived him of a recognized
liberty interest without due process of law under the Fourteenth
Amendment. Undeniably, the use of deadly force is a seizure
subject to the Constitution's reasonableness requirement. Thus,
the propriety of the apprehension necessarily determines the due
process claim.*fn1 If the arrest was proper, Plaintiff cannot claim
a dispossession of liberty.
The parties agree that the constitutional guidelines for the
use of deadly force in apprehending a fleeing felon set forth in
Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1
(1985), govern this controversy.*fn2 That case concerned the
constitutionality of the use of deadly force to seize an
apparently unarmed burglar. The Supreme Court reasoned:
[I]f the suspect threatens the officer with a weapon
or there is probable cause to believe that he has
committed a crime involving the infliction or
threatened infliction of serious physical harm,
deadly force may be used if necessary to prevent
escape, and if, where feasible, some warning has been
Id. at 11-12, 105 S.Ct. at 1700-1701. The facts in this instance
establish that Ford posed no threat to Officer Childers.
Therefore, the issue becomes two-fold: Whether reasonable minds
could differ as to (1) the officer's probable cause in forbidding
the Plaintiff from eluding capture, and (2) the existence of any
necessary warning prior to the arrest. See Hill v. Jenkins,
620 F. Supp. 272, 275 (N.D.Ill. 1985).
In order to determine if Officer Childers utilized deadly force
within constitutional boundaries, the Court initially must look
to why the officer deemed it necessary to fire his revolver at
Ford. Since probable cause in cases such as this turns upon the
reasonableness of the officer's belief, the analysis necessarily
entails only a review of the facts known to him at the time of
the occurrence. Garner, 471 U.S. at 21, 105 S.Ct. at 1706; see
also Hill, 620 F. Supp. at 276.
Clearly, the undisputed facts in this case illustrate the
reasonableness of the officer's belief that Ford had committed a
crime involving the threatened infliction of serious physical
harm. Childers stated he observed employees inside the bank
holding their hands above their heads during the commission of
the offense. This uncontradicted perception alone is enough to
indicate that the suspect was endangering the lives of innocent
bystanders with a weapon. No reasonable juror could find
otherwise. Although the officer could not actually see the
Plaintiff's gun, this fact becomes immaterial when coupled with
the presumption arising from the position of the likely victims.
Unquestionably, Officer Childers had probable cause to fire upon
the fleeing felon. The threat Ford posed not only to those inside
the bank but also to the entire community justified the use of
Likewise, even assuming arguendo that the exigent circumstances
required "some warning," Plaintiff did not refute the officer's
testimony that he yelled, "Halt, police," twice prior to wounding
Ford. Admittedly, Ford stated he heard no warning. Nevertheless,
such self-serving statements are insufficient to meet his burden
before a jury. Plaintiff presented no evidence that Childers
actually failed to warn although at least one other police
officer was present during the incident.*fn3 Given the need for an
expeditious getaway, it is quite possible the Plaintiff heard
nothing but his own footsteps.
Consequently, the actions of Officer Childers fall well within
boundaries established in Garner. The evidence is so one-sided
that the Defendants must prevail as a matter of law. Viewing the
facts in a light most favorable to the Plaintiff, no reasonable
jury could find that Ford was deprived of any Fourth or
Fourteenth Amendment guarantees.
The directed verdict was properly entered for the Defendants.
It will not be set aside.
Ergo, Plaintiff's motion for a new trial is DENIED.