embankments, and reached an area approximately four to six feet from a retaining wall about three feet in height.
At this point, defendant observed an individual standing roughly thirty to forty feet away, on the north side of the retaining wall, with his back to defendant. Defendant then proceeded further up the embankment, and noticed a television set and a stereo with speakers against the south side of the retaining wall.
As defendant drew nearer the person standing on the other side of the retaining wall, defendant noticed a sweat band on the person's wrist.
As defendant approached, this person suddenly turned his head, saw defendant, and began to run in a westerly direction. Defendant called, "Police, hold it" to the fleeing person, who ignored defendant's call and continued to run. Defendant then drew his.38 caliber police revolver, fired a warning shot, climbed over the retaining wall, and set out in pursuit of the suspect.
In the course of such pursuit, defendant came to a second wall and saw the suspect, who had leaped over the wall, getting to his feet. Defendant continued his pursuit, and fired a second warning shot into the ground, with the suspect approximately seventy-five to eighty feet from him. Defendant then yelled, "Police, stop or I'll shoot", but the suspect continued to run, and as he ran, with his back to defendant, raised his right hand across his body and into his shirt or belt area. Defendant, an expert marksman, at this point aimed his revolver at the suspect's midsection and fired a shot which struck the suspect.
After determining the suspect had been hit, and laying the suspect on his back, defendant telephoned headquarters. A police wagon subsequently arrived and took the suspect to the emergency ward of Abington Hospital, where he was pronounced dead at 2:35 p.m. The suspect was in fact Gary Phillips.
Against these facts, Gary Phillips' father, as administrator of Gary Phillips' estate, brought the instant action under 42 U.S.C. § 1983, claiming that defendant's fatal shooting of decedent deprived decedent of certain civil rights.
Deprivation of life by a state or local law enforcement official clearly constitutes a claim cognizable under 42 U.S.C. § 1983, if the deprivation of life results from an illegal use of force by the law officer.
In this case, Pennsylvania law governs the use of deadly force by a law officer in making an arrest. PA. STAT. ANN. tit. 18 § 508(a)(1973) provides:
"(a) Peace officer's use of force in making arrest. --