Summary
In Dillon v. Crowe, 406 F.2d 1321 (CA5, 1969), we recognized the dual limiting factors of scope of force and manner of exercise.
Summary of this case from Burton v. WallerOpinion
No. 26879.
February 10, 1969.
A.M. Trudeau, Jr., New Orleans, La., for appellants.
Francis W. Watts, Jr., Franklinton, La., for appellees.
Before BELL, AINSWORTH, and GODBOLD, Circuit Judges.
Pursuant to Rule 18 of the Rules of the Court, this case has been placed on the summary calendar for disposition without oral argument.
In order to establish a docket control procedure, the Fifth Circuit adopted new Rules 17-20 on December 6, 1968. See Wittner v. United States, 5 Cir., 1969, 406 F.2d 1165 [1969], Fn 1 and Appendix thereto.
This appeal is from an order dismissing a complaint against defendant law enforcement officers for the wrongful death of plaintiffs' son. The complaint was couched in terms of illegal conduct and negligence. The District Court, sitting without a jury, dismissed the case for failure of proof. Findings of fact and conclusions of law were entered. They are amply supported by the record and the applicable law and must therefore stand under Rule 52(a), F.R.Civ.Procedure.
The record discloses the following facts. Decedent was in a Louisiana cafe where a dice game was in progress. He was not participating in the game but sitting nearby. The officers raided the game and the participants were told that they were under arrest. A scuffle ensued between one of the officers and one of the gamblers. During the scuffle the officer attempted to draw his pistol to enforce the arrest. Just as the gun was removed from the holster it was discharged as a result of the officer's arm being struck by the gambler. The bullet accidentally hit the decedent.
The subsidiary findings of fact support the conclusion that only such force was being used by the officer as was necessary in the circumstances, and that the officer was not negligent in that the intervening blow against his arm caused the gun to go off. There the matter ends.
Affirmed.