The opinion of the court was delivered by: KIRKPATRICK
The relator James H. Brown, a guard, shot and killed a man named Franklin Giddings in the shipyard of the Sun Shipbuilding Dry Dock Co. at Chester, Pennsylvania. He was arrested, indicated by the Grand Jury of Delaware County for murder and was in the custody of the respondent, the warden of the County prison.
He applied for this writ, alleging that he was in custody for an act done in pursuance of a law of the United States, Title 28, Sec. 453, U.S.C.A.
The relator has been since December 21, 1942, an enrolled temporary member of the Coast Guard Reserve, with the rating of Boatswain's Mate, First Class. As such he was a member of the Armed Forces of the United States.
On June 16, 1943, he was on guard duty in the No. 4 yard of the Sun Shipbuilding plant and was at that time in charge of the Coast Guard detail in the area consisting of some 20 enlisted men.
The United States was at war and the Sun Company was engaged in building ships for the government. Brown's duties included suppression of disturbances which might cause damage to machinery and equipment or affect the security of the plant. It follows, and I so find, that any act done by Brown which was reasonably necessary to quell a riot in the area under his charge was done in performance of his duty as a member of the Armed Forces, and hence in pursuance of the law of the United States.
The principles governing the jurisdiction and the discretion of this Court upon habeas corpus proceedings in cases of this kind (specifically cases of government officers charged with killing in the course of making an arrest) may be stated as follows:
The first question is, was the act for which the relator is held, an act done in pursuance of the law of the United States? The answer does not depend upon guilt or innocence of the relator or his amenability to State law had he not been a government officer, but solely upon whether he had authority from the United States to arrest persons guilty of the offense for the commission of which he was trying to make the arrest, whether he had reasonable cause to believe and did honestly believe that the person he shot was guilty of the offense for which he was trying to arrest him, and whether, in attempting to make the arrest he acted within the scope of his authority and used no more force than he honestly and reasonably believed was necessary. Castle v. Lewis, 8 Cir., 254 F. 917. The bare facts that the relator was an officer of the United States authorized to make arrests and shot in the course of making an arrest will not afford him immunity from prosecution under the laws of the State. In re Waite, D.C., 81 F. 359, 363. If he acted wantonly with a criminal intent, then he was not acting in the pursuance of the law of the United States. In re Fair, C.C., 100 F. 149. The inquiry must, therefore, be as to the honesty of the relator's belief that the arrest was justified and that the shooting was reasonably necessary to accomplish it. As in all cases where intent is involved, all the surrounding circumstances must be considered, because if they were such that no reasonable man could believe it necessary to shoot to make the arrest, the relator's testimony as to his motives and belief would have to be disregarded.
The next principle to have in mind is that it is not sufficient that the judge weighing all the testimony comes to the conclusion that the act was in line of duty, necessary and, therefore, in pursuance of the law of the United States. Facts pointing to that conclusion, must be either addited or uncontradicted or, at least, supported by so great a preponderance of evidence that a reasonable mind construing it can hardly come to any other conclusion. Regardless of the conclusion which the judge himself might reach, if there is a substantial conflict of evidence as to basic or controlling facts the Federal Court should refuse to exercise its discretion to release the relator and should remand him to the custody of the State authorities for trial by the State Court. Drury v. Lewis, 200 U.S. 1, 26 S. Ct. 229, 50 L. Ed. 343.
Lastly, the discretion of the Federal Court is limited by the nature of the occasion upon which its power is invoked. Even though it be clearly proved that the act for which the relator is held was the act of a government officer in pursuance of a law of the United States, he should be remanded to the State Court for trial unless the case is one of urgency where the failure to discharge the prisoner will or may substantially delay the enforcement of the laws of the United States, or seriously interfere with the operation of its government or the administration of its affairs. Castle v. Lewis, supra; Ex parte Royall, 117 U.S. 241, 6 S. Ct. 734, 29 L. Ed. 868.
This brings us to the facts of the case.They are covered in detail in answers to requests, and only the essential ones need be stated.
A riot was in progress.A crowed had collected when Brown, properly, had taken into custody a workman who had refused to show his identification badge. That incident had terminated, but the crowed, instead of dispersing, followed Brown and three other coast guards along a road between two buildings of the plant, demanding statisfaction of some kind for what one or two of their leaders, without the slightest justification, insisted was "rought handling" of the man. The crowd was rapidly growing in size and its demeanor was menacing. A number of the men were carrying tools, monkey wrenches and long-bladed electricians' knives, any of which could easily be a deadly weapon. They were, as one witness described, "hollering, whooping and screaming." Their language was foul, abusive and threatening. Altogether it was unquestionably an unruly and potentially dangerous mob.
At a point where another street or lane opened into the road on which the guards were slowly retreating before the crowd, Brown and one of the others made a sort of stand in order to permit a third guard named Hampton, who seemed to be a special object of ill will, to escape.The crowd moved forward beginning to surround the two guards. One of its leaders laid hands on Brown and whirled him around. Others got hold of the other guard's revolver and tried to get it away from him.
Brown had just managed to get himself out of the crowd when someone threw a half brick which struck him in the back of the head and at the same moment he saw Giddings run down the side street and away from him and the crowd. Believing, whether rightly or wrongly, that this was the person who had thrown the brick, Brown called out, "Come back here. I saw you," ordered him to halt, and then fired one or two shots in the air. At the first shot one of the leaders of the crowd shouted: "Let's rush him; the sons-of-bitches only got blanks; let's get them." Giddings continued to run and Brown, after calling to him a third time to halt, fired again, aiming low in order to hit him in the leg. Just at the moment, ...