This appeal presents the question whether a civil rights action lies, under 42 U.S.C. § 1983, against a police officer who, in the course of his duty, shoots and kills a person who has committed a felony and is trying to escape arrest. The crime involved here-auto theft-did not involve conduct threatening use of deadly force; nor was there, at the time of the shooting, substantial risk that the person fleeing arrest would cause death or serious bodily harm to anyone if his apprehension were delayed. The United States District Court for the District of Connecticut, M. Joseph Blumenfeld, Judge, granted the defendant police officer's motion for summary judgment, holding that the Connecticut common law rule as stated in Martyn v. Donlin, 151 Conn. 402, 198 A.2d 700 (1964), affords a privilege, in the circumstances of this case, to an officer using deadly force who reasonably believes such force is necessary to effect an arrest for a felony. Judge Blumenfeld ruled that since the Connecticut privilege is not unconstitutional, it affords a defense to the § 1983 action for deprivation of the fleeing persons's life without due process of law. 383 F. Supp. 358 (D.Conn.1974).1 We affirm.

The parties have stipulated the following facts. On August 29, 1969, Officer Marshall of the West Hartford Police Department was cruising in his patrol car in the ordinary course of his duties. While on patrol he observed a Cadillac automobile occupied by three Negro males, including the appellant's decedent, Dennis Jones, traveling in the vicinity of the Hartford Golf Club. Through radio contact with headquarters, Marshall received the information that the Cadillac had been reported as stolen, so he began to follow it as it drove through the Golf Club and adjacent streets. Both cars proceeded for several blocks, neither exceeding 35 to 40 miles per hour nor violating any traffic regulations. While following the car Officer Marshall did not activate his siren or warning light or make any attempt to cause the car to come to a stop. He was then informed over his radio that assistance from the Hartford Police Department was on the way.

Evidently the individuals in the Cadillac became aware that they were being followed because after circling back onto Mark Twain Drive from Dillon Road, they accelerated to about 80 miles per hour and drove north on Mark Twain Drive. After traveling several blocks at that speed the car reached the end of the Mark Twain Extension and skidded to a halt. Officer Marshall, who had followed, also came to a sliding stop, and the braking of both cars created a large cloud of dust. The officer alit from his cruiser with his weapon drawn. Since the occupants of the car were not immediately visible he climbed to the top of a nearby embankment. At that point he observed two men running across an open field and called to them to halt. They momentarily turned to face him, but then turned and began to run away toward a nearby wooded area. Without firing a warning shot or attempting any further means of apprehension, Officer Marshall fired his gun at Dennis Jones, who was then about 125 feet away across rough terrain which contained a gully and was covered with bushes and underbrush. The shot was aimed at the decedent's leg, but struck him in the left buttock, causing internal injuries which resulted in his death. It is stipulated that neither Dennis Jones nor the other two occupants of the car, all of whom were minors approximately 16 years old, were armed or had specifically threatened2 physical injury in any manner to Officer Marshall or anyone else. It is also stipulated that the automobile pursuit did not endanger any other individual than the occupants, although had the chase continued obviously it might have.3

It was agreed by the parties that the law in Connecticut at the time of the shooting in this case was that theft of a motor vehicle was a felony offense, Conn.Gen.Stat. § 53a-119,4 but that joyriding was only a misdemeanor, Conn.Gen.Stat. § 14-229 (use without owner's permission).5 The common law rule in Connecticut is that an arresting officer may use such force as he reasonably believes to be necessary under all of the circumstances to effect a legal arrest and to prevent an escape. The use of force likely to cause death, however, is privileged only if the officer reasonably believes that a felony has been committed by the individual sought to be apprehended and the force used was actually and reasonably believed by him in good faith to be necessary to effect the arrest. See Martyn v. Donlin, supra, 151 Conn. at 411-12, 198 A.2d at 705-06.6 During a codification and revision of Connecticut's criminal laws occurring after the facts in this case, the Martyn rule was retained and codified as a part of the Connecticut criminal law.7

The appellant's argument involves two simple steps. First, that in actions brought under the federal civil rights statutes the law to be applied is federal law-while reference may be made to state or other law consistent with the United States Constitution, it is not mandatory, as a matter of choice of law, that state law be applied. Second, federal decisions and modern policy indicate that the federal rule to be applied in actions under the federal civil rights statutes, e.g., 42 U.S.C. §§ 1983, 1985(3), it that use of deadly force is not permissible in the case of any escape where a felony has been committed except in a few limited situations essentially embodied in ALI Model Penal Code § 3.07 (Proposed Official Draft 1962).8 Appellant argues that the use of force is justifiable 'only where the arresting officer believes that (1) the crime for which the arrest is made involved conduct including the use or threatened use of deadly force, or (2) there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.' Id.

Appellant further argues that the common law rule in Connecticut lacks logical support, is based upon historically outmoded concepts of outlawry and trial by ordeal and has been uniformly disapproved by scholars.9 In contract, appellant argues, the Model Penal Code rule, which has been adopted in form or substance in a number of states by statute,10 is consistent with the laws and Constitution of the United States and the needs of law enforcement personnel. He therefore concludes that the rule of the Model Penal Code should be adopted in this case under 42 U.S.C. § 1983.

The appellee's position is less complex. He assumes that since the challenged law of Connecticut, as expressed in Martyn v. Donlin, supra, and in the new Connecticut Penal Code, is constitutional, in that it does not 'shock the conscience,' Rochin v. California, 342 U.S. 165, 72 S. Ct. 205, 96 L. Ed. 183 (1952); United States v. Toscanino, 500 F.2d 267, 273 (2d Cir. 1974), or otherwise offend any constitutional principle, it is therefore the applicable rule in the case. This was the position taken by Judge Blumenfeld in his decision below. 383 F. Supp. at 362.

With this view, however, we cannot agree. It has long been understood that in interpreting the scope of § 1983 we are not bound by the state law of torts or the defenses of privilege that law provides. In an unbroken line of Supreme Court cases which includes Ex parte Virginia, 100 U.S. 339, 346, 25 L. Ed. 676 (1879); United States v. Classic, 313 U.S. 299, 326, 61 S. Ct. 1031, 85 L. Ed. 1368 (1941); Screws v. United States, 325 U.S. 91, 109-11, 65 S. Ct. 1031, 89 L. Ed. 1495 (1945); Williams v. United States,341 U.S. 97, 71 S. Ct. 576, 95 L. Ed. 774 (1951); Monroe v. Pape, 365 U.S. 167, 183-87, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961); Pierson v. Ray, 386 U.S. 547, 87 S. Ct. 1213, 18 L. Ed. 2d 288 (1967), and Scheuer v. Rhodes, 416 U.S. 232, 237-38, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974), the conduct of police officers and other state officials has, both civilly (Monroe, Pierson, Scheuer) and criminally (Classic, Screws, Williams), been held subject to standards demanded by the Constitution of the United States, regardless of approbation by state law.11 This is necessarily so because one of the principal purposes underlying the Civil Rights Acts of 1871 and 1875 was to protect individuals against '(m)isuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law . . ..' United States v. Classic, supra, 313 U.S. at 326, 61 S. Ct. at 1043. See 1 B. Schwartz, Statutory History of the United States: Civil Rights 591-653 (1970 ed.). See generally Monroe v. Pape, supra, 365 U.S. at 173, 81 S. Ct. 473. The phrase in Section 1 of the Act of April 20, 1871, 17 Stat. 13 (known as Civil Rights Act of 1871 and also as 'the Ku Klux Act'), as amended, 42 U.S.C. § 1983, which provides for liability, 'any . . . law, statute, ordinance, regulation, custom or usage of the State to the contrary notwithstanding,' makes this patently clear. A state rule of immunity or privilege which allows a state officer to escape liability for a deprivation of 'rights, privileges, or immunities secured by the Constitution of the United States' is simply not controlling under 42 U.S.C. § 1983.

At the same time not every tort committed against a private person by an official acting under state law rises to the deprivation of a constitutional right; that is to say, there is no 'general federal tort law . . ..' Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971) (interpreting § 1985(3), derived from § 2 of the Act of April 20, 1871, 17 Stat. 13). For example, state legislators' immunity, Tenney v. Brandhove, 341 U.S. 367, 71 S. Ct. 783, 95 L. Ed. 1019 (1951), and judges' immunity, Pierson v. Ray, supra, 386 U.S. at 553-55, 87 S. Ct. 1213, each established at common law, have survived the enactment of § 1983. The latter, in fact, has been adopted as federal common law. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351, 20 L. Ed. 646 (1872). But Pierson v. Ray, supra, 386 U.S. at 555, 87 S. Ct. 1213, points out that police officers never had an absolute and unqualified immunity at common law. In that case the Supreme Court did recognize a limited privilege under § 1983 in a false arrest situation where the arrest was made in good faith under a statute later held unconstitutional. The Court expressly upheld 'the defense of good faith and probable cause . . . available to the officers in the common-law action for false arrest and imprisonment . . ..' 386 U.S. at 557, 87 S.Ct. at 1219. In so doing, the Court looked to 'the prevailing view in this country,' citing general sources, such as the Restatement (Second) of Torts § 121 (1965), and 1 Harper & James, The Law of Torts § 3.18 (1956). 386 U.S. at 555, 87 S.Ct. at 1218. It is true that the court in Pierson referred to the expansive language of Monroe v. Pape, supra, 365 U.S. at 187, 81 S. Ct. 473, which states that § 1983 'should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.' Pierson v. Ray, supra, 386 U.S. at 556, 87 S. Ct. at 1219. The opinion modified that phrase, however, to recognize some affirmative defenses under § 1983, saying 'Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.' 386 U.S. at 556-57, 87 S.Ct. at 1219.

So, too, in discussing the qualified immunity of the executive branch of a state government, the Supreme Court has referred to a variety of general sources-English common law and statutes, federal and state cases-to support an immunity which varies with 'the scope of discretion and responsibilities of the office and all the circumstances as they reasonably appeared at the time of the action on which liability is sought to be based.' Scheuer v. Rhodes, supra, 416 U.S. at 247, 94 S. Ct. at 1692; see also id. at 239 n. 4, 240-49.

While we are, then, not bound by whatever privilege state law may afford to the officer we still are by no means free to elevate whatever view of the privilege we think to be preferable to the constitutional level envisaged by § 1983. Rather, with only the example of Pierson and Scheuer before us we must make a studied attempt to weigh the competing interests in the light of historical and current cases and commentary to arrive at a scope of the privilege to use deadly force in particular instances.

Initially we should point out that we agree with appellant that the problem of determining the appropriate rule of privilege for the use of force by arresting officers is complicated by the fact that the common law rule evolved when only a few crimes were felonies, and all of them involved force or violence (arson, burglary, robbery, rape, murder, manslaughter) and were punishable by death and forfeiture of lands and goods. See ALI, Model Penal Code § 3.07, Comment 3 at 56 (Tent. Draft No. 8, 1958). ('Such rational justification for the common law rule as can be adduced rests largely on the fact that virtually all felonies in the common law period were punishable by death.') But see Note, Justification for the Use of Force in the Criminal Law, 13 Stan.L.Rev. 566, 572-82 (1961). Many American jurisdictions, Connecticut included, have of course expanded the number of felonies to include numerous crimes not involving force or violence, crimes which relate to property and to compliance with complex governmental regulations (e.g., income tax fraud). As the scope of 'felony' crimes has expanded wholly away from the concept of violence which underlay its common law origin, the use of the felony label to justify especially severe police behavior has become increasingly strained. As stated by Judge McCree in his concurring opinion in Beech v. Melancon, 465 F.2d 425, 426-27 (6th Cir. 1972), cert. denied, 409 U.S. 1114, 93 S. Ct. 927, 34 L. Ed. 2d 696 (1973):12

. . . I would find it difficult to uphold as constitutional a statute that allowed police officers to shoot, after an unheeded warning to halt, a fleeing income tax evader, antitrust law violator, selective service delinquent, or other person whose arrest might be sought for the commission of any one of a variety of other felonies of a type not normally involving danger of death or serious bodily harm.

The elementary requirements of a use of force rule under § 1983 must be that it neither permits 'brutal police conduct,' Rosenberg v. Martin, 478 F.2d 520, 526 (2d Cir.), cert. denied, 414 U.S. 872, 94 S. Ct. 102, 38 L. Ed. 2d 90 (1973), nor allows such 'application of undue force' that the police conduct 'shocks the conscience.' Johnson v. Glick, 481 F.2d 1028, 1032, 1033 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S. Ct. 462, 38 L. Ed. 2d 32 (1973) (holding that a § 1983 action lies by a prison inmate for an unprovoked attack by a guard). As Judge Friendly pointed out in Johnson, while the oft-quoted language from Rochin gains added content from other language in the opinion,13 it is not exactly precise. We must analyze such factors as 'the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort . . . or maliciously or sadistically . . ..' Johnson v. Glick, supra, 481 F.2d at 1033. Judge Friendly's comments were, to be sure, made in the course of determining whether a claim was stated rather than whether a privilege existed. However, a privilege, simply stated, is a rule of law exempting one from liability for conduct which would otherwise subject him to it. Restatement (Second) of Torts § 10 (1965). This is no different from saying that privileged conduct is not tortious. See id. Comment a. Thus, whether we approach the case from the standpoint of Judge Friendly in Johnson, where the issue was whether the conduct was tortious, or from the standpoint of privilege, where the issue is whether the conduct is not tortious, the analytical factors must be the same.

We find in this case that a number of legislatures, but few if any courts on their own initiative, have analyzed the factors just discussed and have moderated the harshness of the old common law view. There is, in short, a discernible trend in this century away from allowing the use of deadly force by a police officer in effecting a felon's arrest. But this trend is not so momentous or compelling as to require us to recognize a § 1983 action to lie in the situation of this case. This is to say that we do not believe that our responsibility to give effect to the important civil rights protected by § 1983 provides us with a sufficient mandate to provide a remedy in this case by rejecting the rule of privilege developed by the state to further its own important objective of enforcing its penal law. The preferable rule would limit the privilege to the situation where the crime involved14 causes or threatens death or serious bodily harm, or where there is a substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed. But we are not satisfied, given the history and current status of the law of privilege, the ready availability of handguns to the populace at large (including nonviolent felons), and the needs of law enforcement in a society where violence is widespread, that we can or should impose that view through § 1983 as a federal standard to which all states would be subject. We are aware, moreover, that to do so in this case, where the Connecticut Supreme Court has fairly recently (1964) taken the contrary view, a view which has even more recently (1971) expressly been preserved in a legislative recodification of the state criminal law, would be to deny the officer the defense of good faith reliance upon the law of his state.15

The question of use of deadly force in preventing escape16 arises here in the narrow context where there is no belief in its necessity for the protection of the officer or of any innocent third persons. In this context, we find the history of the treatment afforded the officer's privilege by the American Law Institute to be enlightening.17 The first Restatement of Torts § 131 (1934) extended that privilege only to arrests for treason or a felony which normally causes or threatens death or serious bodily harm, or which involves the breaking and entry of a dwelling place. Official Comment h to § 131 of the Restatement stated that deadly force was not privileged for every common law felony,18 that crimes are indiscriminately labeled as felonies or misdemeanors, and that it would 'be monstrous to make the privilege . . . depend upon the word used by the legislature in describing the offense or upon the penalty attached to its commission.' This conclusion was felt to be particularly forceful in light of the fact that the force used imperils the suspect as well as the guilty. Id. at 305. This rule of the first Restatement of Torts, which approximates the one advocated by appellant, was, however, overturned by the ALI in 1948. Restatement of the Law, 1948 Supplement, Torts § 131, at 628 et seq. (1949). The revised rule would permit the privilege where the arrest is for treason or any felony which has been committed, if the actor reasonably believes the offense was committed by the other and that the arrest cannot otherwise be effected.19 The notes of the reporter for the 1948 revision, Professor Eldredge, criticize the reliance by the earlier reporter, Professor Bohlen, on one of three dicta from early American case law. Professor Eldredge flatly states that Comment h of § 131 of the first Restatement (and its accompanying illustrations) has 'no authority' to support it. He cites five cases decided since 1926 contrary to § 131,20 and concludes that '(n)o case has been found which has cited § 131 or which is in accord with it.' Restatement of the Law, 1948 Supplement, supra, at 633.21 While the reporter to the 1948 revision allows that § 131 rule of law,' Restatement of the Law, rule of law.' Restatement of the Law, 1948 Supplement, supra, at 634, the revision is necessary in a 'Restatement of existing authorities' since '(e) very case which . . . decides the question agrees that the original English common law is still the law.' Id., but see note 21 supra. It is in this context that the Model Penal Code was adopted by the American Law Institute in 1962. In this Code there are comments which refer to the common law distinction between felony and misdemeanor crimes for the purpose of determining the scope of the privilege to use deadly force as 'manifestly inadequate for modern law.' ALI, Model Penal Code § 3.07, at 56 (Tent. Draft No. 8, 1958). The authors of the Model Penal Code point out the anomaly resulting from juxtaposition of the general rule that deadly force can be used to prevent the commission of a felony only if the felony involves substantial risk to life and limb, e.g., Commonwealth v. Beverly, 237 Ky. 35, 39, 34 S.W.2d 941, 943 (1931), with the rule that such force can be used to obtain an arrest for any felony.22 In contrast, the Restatement (Second) of Torts § 131 (1965) has simply carried forward the 1948 revision of the original Restatement of the Law of Torts and quotes the comment in the 1948 Supplement without reference to the Model Penal Code.

The American Law Institute's almost 50 years of consideration of the problem demonstrates that the area in which we are treading is one still characterized by shifting sands and obscured pathways. The leading text, 1 Harper & James, supra § 3.18 (1956), cannot suffice on its own to lead us out of the wilderness. The authors seem to equate the rule for effectuating an arrest with that of retaining custody once properly acquired, id. at 284; see also Restatement (Second) of Torts § 134 (1965), and state that

(i)n the absence of a specific statute . . . the more desirable rule is that only such felonies as threaten death or serious bodily harm will justify the use of deadly force to effect an arrest therefor, and such force may be used only when it reasonably appears that the arrest can be made in no other way.

1 Harper & James, supra, at 284.

While we need not, either to extend or to limit liability, 'tie section 1983 to the technicalities of state law,' Street v. Surdyka, 492 F.2d 368, 370 (4th Cir. 1974) (extending privilege of officer), we recognize that actions under § 1983 are to some extent 'analogous to tort actions,' Dowsey v. Wilkins, 467 F.2d 1022, 1025 (5th Cir. 1972). Here we are dealing with competing interests of society of the very highest rank-interests in protecting human life against unwarranted invasion, and in promoting peaceable surrender to the exertion of law enforcement authority. The balance that has been struck to date is very likely not the best one that can be. In an area where any balance is imperfect, however, there must be some room under § 1983 for different views to prevail. The Connecticut rule carries with it the defects explicated above; it makes no distinction between felonies and therefore could be argued to involve an element of irrationality. It also creates an anomalous asymmetry to the privilege relating to the use of force for preventing the commission of felonies. Furthermore, it is contrary to the recommendations of the new proposed federal criminal code, see U.S. National Commission on Reform of Federal Criminal Laws, Study Draft of a New Federal Criminal Code § 607(2)(d) (1970),23 and the statute law of one of the other two states in this circuit, New York, N.Y. Penal Law § 35.30(1)(a) (McKinney 1975), although apparently not of the other, 13 Vt.Stat.Ann. § 2305 (1974). This would seem peculiarly to be one of those areas where some room must be left to the individual states to place a higher value on the interest in this case of peace, order, and vigorous law enforcement, than on the rights of individuals reasonably suspected to have engaged in the commission of a serious crime. We do not believe that this approach to interpreting § 1983 hearkens back to the early Supreme Court interpretation of the due process clause which condoned all state procedural rules which were in conformity with 'settled usage,' e.g., Twining v. New Jersey, 211 U.S. 78, 101, 29 S. Ct. 14, 53 L. Ed. 97 (1908); Hurtado v. California, 110 U.S. 516, 528, 4 S. Ct. 111, 28 L. Ed. 232 (1884). This approach has been overruled in Griffin v. California, 380 U.S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965), and we by no means would employ it here. While the Fourteenth Amendment may require us to make an independent assessment of the fairness of the state rule, however, we are today interpreting § 1983, and within that statute the states must be given some leeway in the administration of their systems of justice, at least insofar as determining the scope of such an unsettled rule as an arresting officer's privilege for the use of deadly force. Further, in the light of the shifting history of the privilege, we cannot conclude that the Connecticut rule is fundamentally unfair.

All of which would not say that, under the original stipulation of facts, the complaint should have been dismissed, as it was on cross motions for summary judgment. As the facts were originally stipulated there were still four questions of fact to be determined under the Connecticut's common law rule: (1) whether Marshall actually believed and (2) whether Marshall reasonably believed that Jones was a felony suspect; and, even more importantly, (3) whether Marshall actually believed and (4) also reasonably believed that it was necessary under the circumstances to use deadly force to make the arrest. The absence of any one of these four elements would have rendered the Connecticut privilege unavailable, Martyn v. Donlin, supra. Without our having finally to determine the issue here, any such absence might also have given rise to an action for damages under § 1983.24 But the original stipulation was amended not once but twice to take these issues out of the case.25 Thus no factual issues remain. We accordingly affirm the judgment below. So holding we do not need to pass on the troublesome question whether felonious theft of an automobile resulting in a high-speed chase in a rural area creates or under a given set of circumstances could create a 'substantial risk that the person to be arrested will cause death or serious bodily harm if his apprehension is delayed.' See ALI, Model Penal Code § 3.07(2)(iv)(2) (proposed official draft 1962). Even were we to hold that § 1983 incorporated the Model Penal Code rule it is far from certain whether the appellant would prevail at a trial on the merits.

Judgment affirmed.