*1 HAYES, Plaintiff-Appellant, Dora DEPARTMENT POLICE MEMPHIS al., Defendants-Appellees.

No. 76-1620. Appeals,

United States

Sixth Circuit. 13, 1978.

Decided March Arnold, Ratner, Lu- Philip Sugarmon,

G. cas, Henderson, Tenn., Salky Memphis, & plaintiff-appellant. Holmes, Shea, Art J. V. Charles Asst. Tenn., City Atty., Memphis, for defendants- appellees. PECK,

Before EDWARDS Judges. ORDER receipt On and consideration nonjury in this appeal the record on *2 of alleging violation to raise the .22 damages action rifle the toward two police 42 U.S.C. rights §§ under officers and that the Judge District as- upon jurisdiction founded (1970), with etc. sumed that unspecified some (1970), etc. §§ 28 U.S.C. case; fault with Rooker’s actions in this and in Judge District the before a was tried noting Further undisputed that evidence Tennessee; of and Western District shows that person this is the third in six Judge that has held the District Noting (2 years black and white) whom defend- plaintiff-appellant’s deceased husband that K. ant S. Rooker has in police action, killed of a misdemeanor under Tennes- guilty was the person years and fifth in six at whom having a .22 rifle in his hands see law (4 he has white), black and 1 being public drunk on street at 2:30 while a Now, therefore, the judgment of the Dis- day question; a.m. in and that the on the dismissing trict Court this action is vacated officer, Rooker, K. him to police S. shot and the case is to remanded the District doing in so matter as a was for findings (based additional of fact self-defense; of and solely upon present record) the as to wheth- police noting that when the two Further the police er officers ever identified them- approached and drew deceased fired, selves as such before Officer Rooker revolvers, undisputed it is that their service and whether deceased ever .22 aimed the the with standing was street his deceased at police began rifle the officers or to raise pointed the back to the officers and rifle the muzzle in their direction. feet, toward his and that the officers rifle, drop called on him to the that without them; began turn doing so he Judge, dissenting. and my opinion there is no need to remand what noting that is here charged Further this case to the District Court limited to killing, in violation is willful of the due findings additional on self-defense. The of process clause the United States Consti- Opinion Memorandum of the District tution, charge the commission of a Judge, consisting of pages, nine finds that course, defense; is, of no misdemeanor decedent, the Albert Hayes, had been drink- that the husband was black and deceased ing excess with a neighborhood friends in that officer who killed both the him his tavern in a high area, located crime from that partner appellant were white and p. 10:00 m. Saturday evening on a until 2:00 motivated, killing claims the was m. Sunday a. on morning, when the tavern clause; equal protection violation of close, was about Hayes and that was intoxicated. He and his friends left expects recognizing Further that the law proceeded tavern and cross street when police to take reasonable and effec- Hayes nearly was struck an automobile. precautions protection tive of own engaged a loud altercation with requires lives no law and that them to allow automobile, the driver of who had shot, an assailant to fire the first that but stopped Hayes, his car. who became angry, addition, no law permits the automatic proceeded suddenly to nearby his car in the deadly solely citizen, use of force because a parking lot of the procured tavern. He black, white or is committing found mis- of from trunk his car a loaded automat- even dangerous pos- demeanor as a one as rifle, ic .22 caliber and returned to the place street; public session of rifle on a he where had the altercation with the driv- noting Judge Further District car, of er, pulled the car away

did specific findings not make of fact on the he as arrived at the scene. directly disputed evidence this record Hayes’ Obviously not pertaining police whether or offi- cers rifle, ever identified such or with a loaded themselves as automatic pointed began whether the purpose. deceased ever or for no lawful who, shootings, in earlier policemen involved Order two Hayes encountered drawn, state, establish, him twice to any does not let alone shouted guns with justified. did not were not gun. shootings Cer- and to halt the officers tainly shootings burglars turned toward if the involved gun but drop his arrest, still in hands. fleeing automatic rifle other felons as shown with fatal shot cited, fired the shootings the officers in the cases were above *3 One law, left shoulder through Hayes’ justified under the as this Court has passed and spine his chest and into the front held. instantly. almost area, resulting in his death findings concluded that in its Court

The the shot

the officer “in of his own life and defense his actions fellow officer

that of a loaded rifle in them with

turned could mean split in a second

posture to others immedi- injury serious PORTER CHAPTER the IZ- COUNTY OF 25.) What additional (App. range.” ate AAK LEAGUE AMERI- WALTON OF required? be findings should CA, INC., Council, Inc., Dunes Save the of the conformed to ruling Court Read, Ann Herbert P. Peti- Sims and Terry v. Supreme of the decision tioners, 1868, 1, 23, Ohio, 88 S.Ct. 20 392 U.S. v. v. (1968). Wiley Mem 889 See L.Ed.2d COSTLE, Douglas Administrator, United (6th Dept., F.2d 1247 Cir. 548 Police phis States Environmental Protection Melancon, (6th v. 465 F.2d 425 1977); Beech Agency, Respondent, denied, 93 1972), cert. 409 U.S. Cir. (1973); Cunning 34 L.Ed.2d S.Ct. Northern Indiana Public Service (W.D. Ellington, F.Supp. ham Company, Intervenor. Tenn.1971). Nos. 76-2098 77-1262. alleged had complaint plaintiff her husband in the shot her the officer of Appeals, United States Court was false un- allegation this back Circuit. Seventh testimony of the was shown true as 1977. examiner. medical Decided Jan. 1978.

Although possession alone the rifle misdemeanor, its use only March Rehearing Denied obey the lawful orders of the failure gun, appear to halt and more than a misdemeanor. have been right arrest

The two officers had in their a misdemeanor committed

even for they right certainly

presence, being committed felony prevent presence, right and indeed

in their own lives.

protect found, no proof

As the Court of the officers were actions

offered motivated. the Or- respect

With the statement that one of majority

der