Golla does not contest the allegation that he was at all relevant times acting under color of state law. Although we believe that Defendant Travelpiece might properly be considered to have acted under color of state law, we will not finally decide that issue. For the purposes of the following discussion, however, we will assume it is so. The question then becomes whether Defendants acted to deprive Plaintiff of a right or rights secured by the United States Constitution.
In his trial brief, Plaintiff lists four violations of his constitutional rights. The alleged violations are: (1) Attempt to arrest Plaintiff without probable cause Violation of Fourth Amendment; (2) Use of excessive force against Plaintiff; (3) Attempt to cover up the truth of the events of March 30, 1977 Fourteenth Amendment; and (4) Conspiring to violate the above rights.
The first of the alleged constitutional violations must be dismissed on an analysis of the applicable law to the findings of fact. Plaintiff alleges that Defendants' attempts to Arrest him on Hillside Drive without probable cause violated his rights under the Fourth Amendment to the Constitution. But we adopted Plaintiff's suggested finding # 17 as our finding # 22: "Golla intended to stop Dolan's van and Ask for his identification and an explanation of his activities." Clearly Defendants never intended to arrest the operator of the van. Defendants responded to the concerned telephone calls of residents of the Hillside Drive neighborhood. A strange van was parked in front of an unoccupied home. A strange man was seen carrying a sack over his shoulder. The residents' primary concern was for their own well-being and that of their children. When the police investigated the van and saw equipment and materials in plain view that could be used in the theft of automobiles, they became suspicious. Their suspicions grew when they learned that the suspected operator of the van had been convicted of receiving stolen goods and was out of prison on parole.
Because of their knowledge and because of the concerned requests of the local citizens, the police intended to question the operator of the van. This was not a random stop of a passerby. No search was anticipated. No arrest was anticipated. Anytime a police officer accosts an individual and restrains his freedom to walk away, however, he has "seized" that person and the Fourth Amendment requires that the seizure be reasonable. Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). The reasonableness of seizures that are less intrusive than a traditional arrest depends on a balance between the public interest and the individual's right to personal freedom from arbitrary interference by law officers. Pennsylvania v. Mimms, 434 U.S. 106, 109, 98 S. Ct. 330, 54 L. Ed. 2d 331 (1977). Consideration of the propriety of such seizures requires weighing the gravity of the public concern served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. United States v. Brignoni-Ponce, 422 U.S. 873, 878-83, 95 S. Ct. 2574, 45 L. Ed. 2d 607 (1975).
The Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual. Brown v. Texas, 443 U.S. 47, 99 S. Ct. 2637, 61 L. Ed. 2d 357 (1979). We are firmly convinced that the facts related above were sufficiently specific, objective, and articulable to satisfy any of the tests. We weigh the interest of the police in reacting to citizens' legitimate concerns about a suspicious person in the neighborhood and in reacting to their own reasonable suspicions about potential criminal activity and find it an important governmental interest. That interest is furthered by the type of seizure anticipated here: A simple questioning and identification of Plaintiff would certainly advance the government's interest by negating or confirming those suspicions in a short time. The interest to the public is not outweighed by the anticipated minimal intrusion into the Plaintiff's privacy. Plaintiff's first contention must therefore be rejected.
The second alleged violation of Plaintiff's constitutional rights is the assertion that Defendants acted with excessive, unreasonable force in their apprehension of Plaintiff. This allegation must also fall in light of the facts of the case. We agree with Judge Troutman's opinion that a police officer may not use force which far exceeds that which is reasonable and necessary under the circumstances to make the arrest. Hausman v. Tredinnick, 432 F. Supp. 1160, 1162 (E.D.Pa.1977). Accord, Howell v. Cataldi, 464 F.2d 272, 282 (3d Cir. 1972). But we believe that Defendants' use of force in the pursuit of Plaintiff was reasonable and necessary.
Defendants' use of force was confined to two instances of firing shots from a handgun at or near Plaintiff. The first time Defendants used the gun was in the field when Travelpiece shot at the left rear tire of the van. This shot was undertaken only after Plaintiff had placed both Defendants in fear of severe bodily harm or loss of life by the first ramming. Because Defendants reasonably believed they were in imminent danger of serious bodily injury, they were justified in the use of deadly force according to the Pennsylvania Crimes Code, Act of December 6, 1972, § 1, 18 Pa.C.S.A. § 508(a)(1). See generally, Comment, Justifiable Use of Deadly Force in Law Enforcement, 78 Dick.L.Rev. 115 (1973).
Whether the Pennsylvania Crimes Code permits deadly force or not, however, Defendants were justified in attempting to shoot out Plaintiff's tire as they did. They had a reasonable belief, subsequently borne out, that Plaintiff might again ram them and try to disable or injure them to make good his escape. Golla maneuvered his vehicle until it was four or five feet from the side of the van travelling roughly parallel to it. Golla's passenger side door was aligned with the left rear tire of the van. Travelpiece held Golla's revolver out his window and pointed it down at approximately a 45 degree angle aiming at the tire. The positioning of the vehicles and the abandonment of the attempt after firing the first shot indicate the reasonableness of the Defendants' actions. They were not firing blindly at the van to stop it. They attempted a single, unsuccessful shot at a tire to stop the van without injuring its operator. When they realized the difficulty of stopping Plaintiff in that fashion, they ceased their attempts. Their use of force in the first instance was clearly reasonable and justified and was not excessive.
The second instance of the use of force by Defendants occurred after the Plaintiff ran the van off the road into the muddy shoulder. The van was stuck and Defendants pulled up behind it to apprehend the Plaintiff. We found as a fact in this case that Plaintiff initiated the gun battle by firing an entire round of shots at Defendants. One of the shots hit Golla in the chest and the shattered glass from the van's window, blown out by Plaintiff's shots, cut Golla's face causing substantial bleeding. Again we refer to the Pennsylvania Crimes Code and its permission of the use of deadly force when an officer believes his life or the life of another is endangered. 18 Pa.C.S.A. § 508(a) (1). Deadly force is also permitted when it is necessary to stop the escape of a person who is to be arrested for committing a forcible felony or who is attempting to escape and possesses a deadly weapon. 18 Pa.C.S.A. § 508(a)(1) (i) & (ii).
Under any of the three requirements of section 508(a)(1), Golla was justified in the use of deadly force against Plaintiff. He feared his life and Travelpiece's were in jeopardy by Plaintiff's actions. He feared that Plaintiff would escape and cause injury to others. He knew Plaintiff had committed a forcible felony and possessed a deadly weapon. Golla fired three shots at the cab of the van as soon as possible to stop Plaintiff. The shots he fired hit Plaintiff in the buttocks and arms. Golla was fully justified in the type of force he used in the circumstances in which he found himself.
The third and fourth contentions of constitutional violations by Defendants can be combined into an allegation of a conspiracy to commit perjury to cover up the allegedly unlawful activities of March 30, 1977. This coverup would certainly violate Plaintiff's due process rights under the Fourteenth Amendment if it were substantiated by the evidence. Kauffman v. Moss, 420 F.2d 1270 (3d Cir. 1970). Because we found no evidence indicating to us any misstatements by Defendants in previous hearings or investigations and because we believe that Defendants committed no unlawful acts on March 30, 1977, we reject these latter two allegations.
All of Plaintiff's allegations of violation of his constitutional rights are groundless and we therefore find no proper claim under 42 U.S.C. § 1983. An appropriate order will follow.
IV. CONCLUSIONS OF LAW
1. This court has jurisdiction of this action by virtue of 28 U.S.C. §§ 1331 and 1343(3) & (4).
2. Eugene Golla at all times relevant to Plaintiff's claim was an officer of the Berwick Police Department and was acting under color of state law pursuant to 42 U.S.C. § 1983.
3. Defendants had specific, objective, articulable facts on which to base their intended questioning of Dolan.
4. Defendants' use of force was at all times reasonable and not excessive under the exigent circumstances with which they were faced.
5. Defendants did not attempt to cover up any unlawful, unconstitutional activity.
6. Defendants did not conspire to violate Dolan's constitutional rights.
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