The opinion of the court was delivered by: GILES
FINDINGS OF FACT AND CONCLUSIONS OF LAW
This action is brought pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, for damages resulting from bodily injuries sustained when plaintiff was shot by a Secret Service agent of the United States. The plaintiff demands recovery from the United States, as sole defendant, for false arrest, false imprisonment, assault and battery, malicious prosecution, negligence, and the unjustified use of deadly force.
A bench trial was held in this matter. After reviewing the testimony of witnesses and the briefs of counsel, the court finds in favor of the government and against plaintiff for the reasons which follow and constitute the findings of fact and conclusions of law required by Fed.R.Civ.Pro. 52(a).
1. United States Secret Service agents Evan T. Jenkins and Peter Dowling of the Check Forgery Squad went to plaintiff's Philadelphia premises during the afternoon of April 7, 1977, to request that plaintiff come to their downtown offices for questioning relative to a forged treasury check. They properly identified themselves as federal agents and entered the first floor of the premises where plaintiff had a hair salon. Plaintiff lived in an upstairs apartment. Initially, he voluntarily agreed to accompany the officers but wanted to get a jacket which was in an upstairs closet. The two officers went with plaintiff upstairs, where they encountered several of his friends.
2. Once upstairs, plaintiff began to question the agents' credentials and identification as well as the necessity to conduct the interview downtown. He offered to be interviewed in his apartment.
3. The agents insisted that they would prefer to question him outside his home. There was no warrant for plaintiff's arrest and at that point the agents had no cause for his arrest.
4. Agent Jenkins touched plaintiff's elbow lightly in an effort to encourage plaintiff to start toward the stairs leading down to the first level. Plaintiff forcibly and suddenly pushed away from him, initiating the struggle which ensued. Jenkins then tried to restrain the plaintiff and told plaintiff he was under arrest. Plaintiff again resisted and Jenkins attempted to handcuff him. Jenkins succeeded in handcuffing only plaintiff's left wrist.
5. The struggle caused both men to fall onto a nearby sofa. Jenkins was lying under the plaintiff.
6. Dowling tried to assist Jenkins in bringing plaintiff under control by handcuffing his arms behind his back, but Dowling was unsuccessful, finding that plaintiff was unusually strong. Dowling stopped his efforts to subdue plaintiff because he thought plaintiff's friends might aid plaintiff by joining the struggle. Dowling pulled his revolver, training it on plaintiff's friends to keep them out of the melee.
7. The struggle continued between plaintiff and Jenkins. Plaintiff yelled to his friends to get help. They then ran down the stairs. Dowling did not chase them but turned to aid Jenkins.
8. Using his right arm, plaintiff had Jenkins in a headlock. His left hand and arm were to the interior side of the sofa near Jenkins' waist. Dowling attempted to get plaintiff's arms behind his back again. He was again unsuccessful because of plaintiff's uncommon strength. He then tried to strike plaintiff twice with his revolver, a .357 Magnum, but somehow (Dowling believes with his right arm) plaintiff fended off each blow.
9. At this point, Dowling heard Jenkins say, "My gun, my gun," and could see part of plaintiff's arm inside Jenkins' pants at the waist where Dowling knew Jenkins carried his gun in an inside holster.
10. Seeing that, and believing plaintiff was in possession of or reaching for Jenkins' gun, Dowling, although not seeing the gun or plaintiff's hand on the gun, stepped back and fired his revolver twice at plaintiff's head, intending to kill him because he reasonably thought Jenkins was in imminent mortal danger and that time did not permit hesitation or any less drastic action.
11. One shot missed; one shot hit the plaintiff in the right forearm and lodged near the right armpit. Dowling saw plaintiff go limp, and believed he was dead. Plaintiff, however, had been shot not in the head but in the right armpit, and continued struggling. Still, Jenkins and Dowling were unable to control plaintiff.
12. Dowling believed plaintiff's friends had gone to bring others back to fight the officers. Dowling tried to phone for back-up assistance, but the telephone in the apartment was dead. He then went outside to his car to call for assistance.
13. It is undisputed that plaintiff had considerable strength after the shooting. Plaintiff, who testified he believed by then that he was going to be assassinated, was able to knock out a window on the second floor to gain attention of passers-by, and grab from the wall a ring of knives with which he attacked Jenkins, cutting Jenkins' face and back. Jenkins attempted to flee, but fell down the stairs. Plaintiff was able to jump down the stairs after Jenkins and was swinging the knives at him in a deadly manner as he lay at the bottom when the Philadelphia police arrived on the scene.
14. An unidentified city plainclothesman struck plaintiff in the mouth with a nightstick, knocking out four of his upper front teeth. Plaintiff seeks damages from the United States as a result of this injury also.