dissenting:
Without considering the propriety of any of the police actions before Moss shot Robert Hebah outside the apartment, I dissent because I am unable to agree with the trial commissioner’s conclusion, adopted by the court, that “it was regrettable but reasonable for Moss to shoot to kill decedent” and “the killing of deceased was reasonable under the circumstances herein.” Recognizing 'as I do that the trier-of-the-faots 'has the prime opportunity to observe the demeanor of the witnesses and appraise their credibility, I base my view squarely and largely on the testimony of Moss and the other police participants, accepting their evidence just as the trial commissioner did. I recognize, too, that we should not overturn a commissioner’s findings unless there is strong reason. But we have also reiterated that the ultimate responsibility for finding the facts in this court rests on the judges, and if we 'are convinced that the preponderance of the evidence goes against the trier’s determination our obligation is to say so. Bringwald v. United States, 167 Ct. Cl. 341, 347, 334 F. 2d 639, 643 (1964); Miller v. United States, 168 Ct. Cl. 498, 501, 339 F. 2d 661, 662 (1964); Willett v. United States, 186 Ct. Cl. 775, 787-88, 406 F. 2d 1346, 1353 (1969). That is the posture in which I now find myself.
The first thing to note, in assessing the lawfulness of the shooting, is that there is really no dispute 'as to federal law on excessive use of force by a police officer. Policemen have the right in case of a felony (Castle v. Lewis, 254 F. 917, 925 (C.A.8, 1918)):
to use such force as they then had reasonable cause to believe, and in the exercise of their sound discretion they did honestly believe, was necessary to make the arrest, but it included the right to use no more, and the use of any greater force was beyond the scope of their authority, unauthorized and without justification. Here, ■too, the measure of necessary force is that which an ordinarily prudent and intelligent person, with the knowledge and in the situation of the arresting officer, would have deemed necessary.
To the same effect, see Barrett v. United States, 64 F. 2d 148, 149 (C.A.D.C., 1933); Moran v. Lumbermen’s Mutual Cas*754ualty Co.. 92 F. Supp. 267, 270 (E.D. Mich., 1950). Under federal law, as generally under state statutes, it is sometimes put that an officer may use only such force as is “reasonably necessary” to make an arrest. People of State of Colorado v. Hutchinson, 9 F. 2d 275, 276 (C.A. 8, 1925), Bell v. United States, 254 F. 2d 82, 85 (C.A.D.C., 1958), cert. denied, 358 U.S. 885, Stinnett v. Commonwealth of Virginia, 55 F. 2d 644, 645 (C.A. 4, 1932). These are the interchangeable standards by which I measure Moss’s conduct.
Several related factors convince me that Moss killed Hebah unnecessarily and without justification: (1) the total lack of warning after the deceased emerged from the house, together with the speed of the shooting; (2) Moss’ relatively safe position behind an abutment; (3) the shooting to kill rather than merely to wound; (4) the unlikelihood that Hebah could and would have shot Moss at that precise moment; (•5) the professional testimony of the other policemen that they had no thought of shooting; and (6) the brutal character of Moss as revealed by his reputation and previous history. All of these elements emerge clearly from the record, almost entirely through uncontroverted testimony.
After Hebah came from the house, there was no statement that he was under arrest, no warning to drop the gun after he was ferreted out by the tear gas (finding 51; Svela, T. 162-63; Chas. Whiteman, T. 770, Moss, T. 906). A warning would have been proper procedure once Hebah appeared on the threshold (Fishencord, T. 356; Oman, T. 311-12). When the senior officer present was asked if he considered shooting the deceased in the leg, he replied: “I didn’t give it (sic) any consideration to shooting him at all.” (Svela, T. 124). Another officer present did not even draw his gun (Chas. Whiteman, T. 758, 770) and admitted surprise that Hebah was shot (771). Hebah’s exit from the house was not only anticipated, but was the intended result of the use of tear gas, especially after four or five seconds had elapsed. In response to a hypothetical question, policemen testified that the logical result of shooting tear gas at a man is almost instantaneous blindness and that the confused motion that Hebah made in his drunken condition may have been to raise *755his arms to rub his eyes (Svela, T. 162; Oman, T. 307; Ferris, T. 409; Moss, T. 918). Joyce Hebah testified that this was in fact the case (T. 970). Though Eobert Hebah had raised his arms, Ms rifle was not in a position to fire (Moss, T. 912-13). The question, at its narrowest, then is whether Moss should have waited longer, if only for a moment, to ascertain what Hebah was going to do: surrender or talk or shoot.
Experienced officers, in response to hypothetical questions posed by defense counsel, indicated that proper police procedure would not dictate shooting if the officer were safely behind an abutment (Oman, T. 307; Ferris, T. 412). The senior officer present stated that Moss was behind a concrete abutment (Svela, T. 116, 120) and Moss so conceded on cross-examination.1 (T. 899, 904). At the beginning of cross-examination, Moss contended that he was only partially covered, but later, when confronted with his testimony from the coroner’s inquest, he admitted that he was protected unless and until Hebah came around the abutment (T. 905, 907).2 The abutment was at least six feet from the door, and along the wall on which the door was placed; when he emerged and when he was shot, Hebah was not facing toward Moss or the abutment but at right angles, though he had turned his head and eyes toward the abutment; Moss thus shot from a side angle and very quickly after the deceased came out of the door.
Moss’ own testimony is damning: he never testified that he was in fear of his life; on the contrary, he left the abutment for the purpose of taking a clear shot3 (T. 899, 902, 904) and *756he intended to kill rather than wound, although he could have wounded Hebah, at such a short distance, if he so desired. (T. 917-18) .4 See also Svela, T. 162-63. As a generalization, if justification exists to shoot, it exists to kill. The reason is that officers should not hesitate to shoot a fleeing felon, for example, with the apprehension that, if their aim is sure and the man is wounded, well and good, but if aim is faulty and the felon is killed, they act at their peril. In our case, on the other hand, we have a stationary target, a drunken man, tear-gassed, a few feet away but apparently not yet ready to shoot. Moss was not matched one-to-one against the man he was trying to arrest; rather, four armed officers, of greater size, surrounded the decedent on all sides. Nor are we faced with the problem of holding an officer accountable for a good faith error in his aim, but rather for his avowed intention to shoot to kill though he knew he could have wounded. What Moss said on the stand admits that, in this case, death was not a last resort.
Moss’ deliberate decision, while behind the abutment, to shoot to kill is explainable, though not condonable, from his character as revealed by this record. The trial commissioner succinctly states: “The character testimony as to Norman Moss’ general reputation as an officer was, without exception, that it was bad.” (finding 22). His application for government employment admits several arrests, almost all of which resulted from intoxication: on two occasions, fines were imposed for reckless driving; three times for driving without a license; on two occasions, for disturbing the peace or disorderly conduct, (finding 20). Since he had not been convicted of a felony for a year previous to his application, he was hired, but in 1967 further trouble led to a temporary suspension without pay. He was observed by the Chief of Police in an intoxicated condition while on duty (in violation of 25 C.F.E.. 11.304(8)) and was charged with beating, shoot*757ing tear gas, firing a revolver, and otherwise using unnecessary force or violence on an Indian juvenile and his companions (in violation of 25 C.F.R. 11.304(10)).
Witness after witness — Indians, Indian police officers, and white citizens — testified to Moss’ affinity for shooting tear gas, his drunkenness, and his brutality. One Indian, formerly a trustee in a jail, reported that Moss beat and shot with tear gas a helpless drunk. (J. Armajo, T. 225-233). This testimony was corroborated by the victim of the beating (Groes-beck, T. 246, 250-52) and the investigating officer (Svela, T. 58-59). Moss even expelled tear gas in a closed ear in which his wife and children were riding (J. Armajo, T. 241). A white state senator testified that Moss was not above aiming tear gas at a crippled and completely helpless Indian (Svilar, T. 516). The episode of beating and shooting tear gas which resulted in Moss’ suspension also led to an assault and battery charge. The incident was substantiated by testimony from one of the Indian victims (Smith, T. 170-183), the former chief of reservation police (Fishencord, T. 338-39), and the assistant chief of reservation police (Ferris, 413-16). Both of these superiors described Moss as a “hothead” (Fishencord, T. 369; Ferris, T. 411) and labelled his reputation as “bad” (412), a judgment joined in by one of the Indian guidance counsellors (Trosper, T. 263). It is not surprising that Laura Hebah (626), her son (583), and daughter-in-law (605) also testified as to Bobert Hebah’s fear of being beaten and gassed by Moss. The white lawyer who represented Moss summed it up: “he was clothed subtly with a badge and he used this power, like I said, almost in a sadistic fashion” (Sen. Svilar, T. 526).
This is the policeman whose conduct we must evaluate, not some theoretical model of a careful and reasonable officer. There is, understandably, considerable reluctance on the part of courts to reflect adversely on the actions of an officer in making an arrest except where the departure from the norm is egregious. This mirrors a recognition both of the degree of danger policemen face regularly in performing their tasks 'and Of the difficulties of split-second decision-making as to the amount of force that may be necessary. Events of the past *758decade, however, have forced into the public consciousness the sorry fact that there are some law enforcers who are not careful and reasonable, and do not try in good faith to do their best. I believe that this is one such instance. The record demonstrates that Moss should not have been allowed to remain 'an officer, and that on this occasion he acted, not as a police officer should, but as his own sadistic feelings prompted.
Since the court agrees with the commissioner that the killing was justified, it does not have to decide whether Moss was a “bad man” within the meaning of the treaty. However, I am sure that, had the commissioner and the court come to ■my conclusion as to Moss’ use of excessive force, they would have no doubt as to the aptness of that characterization. The commissioner, as I have noted, found: “The character testimony as to Norman Moss’ general reputation as an officer was, without exception, that it was bad” (finding 22), and I have already set forth the evidence showing his brutality, irresponsibility, and lack of proper qualities. The record compels the finding that, even before the death of Mr. Hebah, Moss was a “bad man”, and the events of that night reinforce the appellation.
I would hold that plaintiff is entitled to recover and return the case to the trial commissioner to ascertain the amount of recovery.
Laramore and Dueeee, Senior Judges, join in the foregoing dissenting opinion.FINDINGS or Fact
1* Plaintiff is the widow of Robert Hebah and adminis-tratrix of his estate. Deceased and plaintiff had been married for 25 years. Plaintiff is, and deceased was, a member of the Shoshone Indian Tribe. Plaintiff was 59 at the time of her husband’s demise, and he was 41. Two ¡adult children, Alvin Wallace Hebah .and Cecelia Rose Armago, were bom of the marriage.
2. On July 15, 1970, defendant’s motion to dismiss the petition for lack of jurisdiction was denied, and this court found that plaintiff had standing to present this claim, that *759it had jurisdiction of plaintiff’s claim, and that Norman Moss, identified infra, was “* * * subject to the authority of the United States * * *” within the meaning of the applicable 1868 Indian Treaty. Consequently, the case was remanded to this court’s trial division for trial or other further proceedings on the merits.
3. On July 3,1868, see 15 Stat. 6731, the United States and the Eastern Band of Shoshone and Bannack Tribes of Indians entered into a treaty. The Peace Treaty of July 3, 1868, provided, inter alia, that the Wind River Reservation be set aside for the Shoshone and Bannack Indians.
4. At the time of the aforementioned treaty, the United States was making peace treaties with several other tribes, including the Arapaho tribe. A solution was worked out when the United States obtained permission from the Shoshones to permit the Arapahoes to temporarily settle on the Wind River Reservation in exchange for a suitable reward. However, what originally began as a temporary arrangement became, with the passing of time, the permanent solution and the Arapahoes remain to this day on the Wind River Reservation. After some 35 to 40 years, the United States did make a cash payment as restitution to the Shoshones for settlement of the Arapahoes on the Wind River Reservation.
5. At the present time, there are some 4,100 enrolled members of the Shoshone and Arapaho tribes living on the Wind River Reservation. While there is no open hostility between the tribes, there does appear to be an undercurrent of resentment.
6. Complicated socio-economic frustrations have turned the Wind River Reservation Indians to alcohol. Unemployment among the male Wind River Reservation Indians runs high. Male members of both the Shoshone and the Arapaho tribes are five to ten times more likely to experience chronic drinking problems than are their male counterparts in non-Indian society. About 70 percent of the male Indians on the Wind River Reservation drink excessively.
7. As would be expected in an alcoholic dominated environment, a substantial portion of the male Indians have at some *760time or other been arrested and charged with alcohol connected or caused offenses.
8. The Wind River Reservation is governed by a Joint Business Council. The Arapahoes and Shoshones each elect their own six member tribal councils. The two independent tribal councils then meet as the Joint Business Council once a week to discuss and transact reservation business which is of common interest to both tribes.
9. The Department of Interior has a Bureau of Indian Affairs which supervises, directs and expends moneys appropriated from time to time by Congress for, among other things, the employment of Superintendents of Indian Reservations.
10. Among his other duties, the Superintendent of each Indian reservation is recognized as the commander of the Indian police force and as such is responsible for the conduct of its members. The Superintendent is duty bound to assign Indian policemen to carry out the orders of the Court of Indian Offenses, and to investigate charges of misconduct against Indian policemen and to discipline any violators thereof.
11. The Bureau of Indian Affairs may assign a special or deputy special officer to a reservation. That officer, on behalf of the Superintendent of police, is in charge of police affairs. The special officer is responsible to the Superintendent for the conduct and efficiency of the Indian policemen under his direction, and is charged with reporting any violations of law or regulations and any misconduct of Indian policemen to the Superintendent.
12. The Superintendent of any Indian reservation employs and appoints members of the Indian police. The qualifications of an Indian police officer include:
❖ ❖ * * *
He must never have been convicted of a felony, nor have been convicted of any misdemeanor for a period of 1 year prior to appointment.
The duties of an Indian police officer include:
*761To obey promptly all orders of the police commissioner or the court of Indian offenses when assigned to that duty.
* * * * *
To abstain from the use of intoxicants, or narcotics and to refrain from engaging in any act which would reflect discredit upon the police department.
To refrain from the use of profane, insolent or vulgar language.
To use no unnecessary force or violence in making an arrest, search, or seizure. [25 CFR 11.304.]
# * * * *
13. Because of Indian preference, the Superintendent of the Wind River Reservation feels obligated to hire and favor a qualified Indian, if one is available, over a more qualified non-Indian. Only in those instances where there are no qualified Indians available does the Superintendent feel that he is permitted to appoint a qualified non-Indian to the tribal police force.
14. Prior to July 19.60, police officers for the reservation police force were chosen by the Joint Business Council from a list of approved names supplied by the Superintendent of the Wind River Reservation. However, in July of 1962, the Shoshones withdrew from this arrangement, and also decided against sharing the costs for local police patrols. As a result, the Bureau of Indian Affairs advanced funds to the Arapaho tribe with the understanding that they would continue the police operations in a fashion similar to that previously conducted by the Joint Business Council. For the remainder of 1962, and thereafter through 1967, policemen were appointed by the Arapaho Business Council from a list of candidates that had been evaluated by the Superintendent and found to be qualified by him. Consequently, all members of the Wind River Reservation police force are members of the Arapaho tribe.
15. The ultimate authority for appointment, method' of appointment, termination and method of termination of Indian policemen rests with the United States Government, and, more directly, with the Bureau of Indian Affairs.
16. Robert Hebah lived with his wife, Laura Hebah, from May 1,1967, until the time of his death in a low rent apart*762ment development known as “Tigee Village” on tlxe Wind River Reservation. The lease for the apartment was executed by one Veldera Snyder as landlord for the Wind River Housing Authority on the one hand, and by Laura Hebah on the other. Also, the application for admission and occupancy form, which contained statistical information that was supplied by Mrs. Hebah, indicates that she alone was going to be the year-round occupant of the apartment. Mr. Hebah was not mentioned as an occupant of the apartment and did not sign the lease. The application form indicated that their children, Alvin and Cecelia Rose, and her grandchildren, would spend some time, primarily during vacations, at the apartment.
17. Robert Hebah was a heavy drinker, and for some time immediately prior to his death, he was drunk practically every week. While drunk, Hebah was belligerent and offensive, however lie was never known to have followed through on any of his threats. His arrest record indicates that, aside from belligerent and sarcastic comments, he cooperated with the arresting officers. Nonetheless, Mrs. Hebah often reported to the police that Mr. Hebah had made threats to shoot it out with any officer who tried to arrest him. Hebah had been arrested before for being drunk, and while armed with a rifle. However, in that instance the arresting officer found him asleep in his locked car, and was able to persuade Hebah to unlock the car and hand over the rifle. Prior to 1960, he had been convicted only on a charge of disorderly conduct, once for assault and battery and once for public intoxication. Also on February 11,1966, the Court of Tndia.n Offenses, Wind River Jurisdiction, issued an Order, operative for an indefinite time, that he was to not disturb, annoy or molest Mrs. Hebah. Mr. Hebah was also ordered “* * * not * * * to go on the premises of Laura Hebah, while in an intoxicated or disorderly condition.”
18. Robert Hebah worked for a limited time as a school custodian for the Reservation Sanitation Department, however Mrs. Hebah testified that he also kept busy as a farmhand.
19. Norman Moss was 27 years old at the time of the *763shooting in question. He is a full blooded Arapaho Indian and was bom and has lived bis entire life on tbe Wind River Reservation. Moss’ education consisted of successful completion of tbe sophomore year of high school.
20. Moss was temporarily employed on tbe tribal police force on March 28, 1966, and became a permanent member of tbe force on April 6,1966. Prior to being hired as a tribal police officer, Norman Moss was convicted:
(a) In March of 1958 for driving without a license, reckless driving, and driving on the wrong side of the road;
(b) In September 1958 for reckless driving and driving without a license;
(c) In June 1959 for disturbing the peace;
id) In July 1963 for disorderly conduct;
(e) In August 1963 for driving without a license; and,
(f) In November 1964 for contempt of court, however the disorderly conduct charge from which the contempt conviction resulted was dismissed.
21. While employed as a tribal police officer, Moss was on several occasions accused of assault and battery by the ar-restees. These charges grew out of complaints from certain arrestees of unprovoked beatings and excessive use of mace. All of the cases against Moss which were brought before the tribal courts have been dismissed. In these cases, Moss was represented by the attorney who was “* * * a prosecutor for the Shoshone and Arapahoe Indians, * * *” while complainants were not represented by counsel. In one of these cases, complainant was allowed to testify, but all of his witnesses who were in an adjoining room were not called. Mr. Moss has been charged with assault and battery in a case before the District Court of Fremont County, Wyoming. However, the disposition of that case is uncertain. The Tribal Court of the Wind River Reservation consists of two judges. The judges are appointed by the Superintendent, subject to confirmation by two-thirds vote of the tribal council. The tribal judges are not required to have any legal training, and Judge Lawrence Miller, who presided over the two assault and battery cases against Moss, only has a high school education.
*76422. The character testimony as to Norman Moss’ general reputation as an officer was, without exception, that it was had. Ted Oman, Chief of Police for Lander, Wyoming, testified that Moss had a had reputation and that he had a reputation 'as a “rough police officer.” Maurice D. Fishencord, former Chief of the Wind River Reservation Police, testified that Moss was “hotheaded”, hut a 'hard worker who had been a lot of help to him. Clyde W. Hobbs ('Superintendent of the reservation) at the request of Chief Fishencord once suspended Moss for, among other things, performing official police duties while he was “semi-intoxicated.” Subsequently, after being acquitted of assault and battery charges which the arrestees had brought against him at the Tribal Court, and submitting a letter wherein he promised to refrain from such acts in the future, Moss was reappointed as a Tribal Police Officer. Richard Ferris, a former assistant chief of the reservation police, also testified that Moss was a hothead.
23. The Indians on the Wind River Reservation fear the Lidian police officers because of abuses which these officers have committed in the past, and because these officers have on occasion picked up an Indian without cause. The Indians on the reservation fear Norman Moss. However, Moss had, without incident, arrested Mr. Hebah in the past for being drunk. Moss never used mace on Mr. Hebah, although he has used it on others.
24. Superintendent Hobbs stated that Moss’ application for tribal policeman listed all of the acts that he had been convicted o'f and so he was aware of them at the time of his evaluation for the Tribal Police Force. However, since Moss had never been convicted of a felony, and had not been convicted of a misdemeanor within 1 year of the date of his application, Hobbs found that Moss met the relevant requirements of the Code of Federal Regulations. Further, if Moss was selected again as a current applicant for the tribal force, Hobbs said he would hire Moss. However, Chief Ted Oman of the Police Department of Lander, Wyoming, would not have hired Moss on the basis of his knowledge of Moss’ reputation, as a member of the Lander Police Department.
25. Mr. Hebah had been in poor health, and after com*765plaining of feeling ill on Monday, March 11,1968, lie traveled to Casper, Wyoming, for hospitalization. He was discharged from the hospital early in the day of March 18,1968, but did not arrive at the Hebah apartment in Tigee Village until about midnight. Although intoxicated, he carried on his person a pint bottle and a one-half pint bottle of whisky. Because of his drunken condition and, also, because he was in his usual angry mood, Mrs. Hebah suggested that they both go to bed.
26. While in bed, Mr. Hebah turned on his wife and attempted to choke her and stated:
We are both sick, and we might ‘as well get rid of our lives some easy way. * * * I am going to finish this, this time * * *.
Fearing that she was going to be beaten, Mrs. Hebah on the pretext of obtaining some medication, left their bedroom to share the bedroom of their daughter, Cecelia Bose, who was pregnant at the time.
27. Bobert Hebah owned a .22 long rifle with which he hunted. For reasons which do not appear in the record, Alvin Hebah had some time previously taken the rifle away from his father and hid it in the trunk of the family car. However, Bobert Hebah apparently unknown to his family found out where the rifle was hidden and retrieved it for use in connection with tribal games which were being staged at the Community Hall the weekend before his death. However, instead of returning the rifle to the trunk of the car where he had found it, Hebah placed the rifle in the closet of his bedroom. Sometime after his wife left their bedroom, Mr. Hebah loaded the rifle. He then asked a grandchild, who was sleeping in the Hebah bedroom, to tell Mrs. Hebah to come back. Instead Mrs. Hebah, her daughter and the grandson fled to the apartment of a next door neighbor. The neighbor admitted them 'and stated: “Well you could stay here for a while * * Mrs. Hebah, after being allowed in, explained to the neighbor that her husband was drunk and had a loaded rifle, and that “He’s mad at us, he’s got a gun, and I’m scared to go back in the house.” She went on to explain that she felt that the police should be called to take the rifle away from *766Egbert and thus prevent his hurting someone or even killing himself.
28. Instead of calling the police, Mrs. Hebah waited for what she felt would be sufficient time for Robert to pass out from the consumption of the additional alcohol which he had brought with him to the apartment. Then, leaving her grandson at the neighbor’s, she and her daughter returned to her apartment. They immediately went to Cecelia Rose’s bedroom and went to bed. After only approximately five minutes had elapsed, she heard her husband leave his bedroom and go to the living room of the apartment. Frank Tillman, Mrs. Hebah’s brother, and Merle Moon, her son by a previous marriage, were sleeping in the living room of the Hebah apartment. Mrs. Hebah relates that she heard Robert Hebah threaten to shoot her brother. However, instead of shooting Mr. Tillman, Robert Hebah kicked him in •the back and chased both Tillman and Moon from the apartment.
29. Mrs. Hebah got out of bed and without even attempting to talk to Mr. Hebah, ran out the back door of the apartment. Cecelia Rose, on the other hand, got out of bed and went into the living room and tried to take the rifle away from Mr. Hebah. However, the strap of the rifle was around his shoulder and she was unsuccessful in her attempt to wrest away the rifle. During the struggle, Cecelia Rose saw that her father had his finger on the rifle trigger. Cecelia Rose decided that her struggle was useless and also ran out of the apartment to join her mother at the apartment of their neighbor. However, this time Mrs. Hebah was determined to call the police for help. Mrs. Hebah and Cecelia Rose were on their way to the Tigee Village office to make the phone call when she saw a neighbor, and after discussing their problem the neighbor offered to make the phone call for her. Mrs. Hebah and Cecelia Rose returned to the apartment of their neighbor and waited outside for the police to arrive.
80. Alvin Hebah’s wife, Joyce, who was pregnant at that time, was also spending the night at the Hebah apartment. While it is unclear whether she left the apartment at the time of Mrs. Hebah’s first or second departure, it is *767clear that due to events which occurred that night, she made arrangements to sleep at her sister-in-law’s apartment. Her sister-in-law’s apartment was across the street from the Hebah apartment, and about 90 feet away.
31. The call was received at police headquarters at about 1:00 a.m. on March 14, 1968, by Alvin Wallace Hebah, son of the deceased who was in jail and was acting as a trustee at that time. After taking the call, Alvin Hebah contacted Officer Norman Moss, who had just arrived home from police duty and was filling out his daily report sheet. Alvin Hebah told Officer Moss that an officer was needed at Tigee Village. Moss was not told that the disturbance was at the Hebah apartment or that the disturbance in any way involved Kobert Hebah.
32. Moss arrived at Tigee Village at about 1:15 a.m. and drove slowly around the court which divided the two rows of apartments, in an effort to find the disturbance. Not seeing anything on his first pass around the driveway, Moss decided to traverse the area one more time. Again failing to hear or see anything of an unusual nature, Moss was about to leave when he spotted Mrs. Hebah and Cecelia Rose standing behind an abutment at the entrance of their neighbor’s apartment. Upon questioning Mrs. Hebah, Moss was told that they had called because they had been chased out of their apartment by Mr. Hebah. Moss was also told that Mr. Hebah was drunk again, and armed with a loaded rifle.
33. Because of the information given Moss by Mrs. Hebah, concerning the drunken and armed condition of Mr. Hebah, Norman Moss called Special Officer Harry Svela for assistance. Mr. Svela was the special officer assigned to the Wind River Reservation and, accordingly, was the ranking officer of the Tribal Police Force. 'Svela arrived at Tigee Village at about 1:30 a.m. and was immediately informed by Moss that Robert Hebah had chased his wife and daughter from their apartment in an intoxicated and armed condition. After establishing that Moss 'had not called for other assistance, Svela immediately called John Whiteman, Chief of Police of the Wind River Reservation, and Charles Whiteman, a policeman with the Tribal Police Force, as reinforcements. 'Svela spoke *768to Mrs. Hebah and sbe repeated what Sbe bad previously told Officer Moss concerning her husband’s return to the apartment in a drunken condition, and their having to flee the apartment on two occasions to escape his drunken rage and armed threats. Mrs. Hebah also indicated to Svela that she and Cecelia Eose wanted to return to their apartment. While awaiting the arrival of reinforcements, Svela asked for and received a floor plan of the apartment and the probable bedroom which Mr. Hebah would be occupying.
34. Family squabbles or night-time disturbances are a routine problem on the Wind Eiver Eeservation. Drinking by either the husband or the wife, or both, is the usual reason for the disturbance. The reservation police are taught that a warrant is needed if an offense is not committed in their presence. Arrests arising out of family squabbles are discouraged, even if one party insists on an arrest, without a signed complaint. An officer often hears that the husband is drunk and is either going to kill some person or shoot a police officer, but such threats are usually not reliable. While each family squabble is different, the reservation officers (like police officers everywhere else) are taught, as a general rule, to merely separate the parties and have one of the spouses spend the rest of the night with neighbors or friends, or at a motel or hotel.
35. When the reservation police respond to a family disturbance call, they ordinarily follow the standard police procedure of not bothering the parties if
'(a) all is quiet upon their arrival;
(b) the parties are already separated (such as one spouse being with the neighbors) ; or
■(c) they believe the disturbing party is asleep which is probable if that party has been drinking.
36. Officer Moss, in the meantime, had taken up a position at the rear of the apartment, to keep the back of the apartment under surveillance and to prevent Mr. Hebah’s possible departure therethrough, in the event he was in the apartment. While at his post, Moss heard a mumbled voice which originated from inside the Hebah apartment.
37. Charles Whiteman received the call to come to Tigee *769Village about 1:30 a.m. He arrived there about 3 or 4 minutes later, at approximately 1:35 a.m. Svela advised Charles that Mr. Hebah was drunk, had chased 'his family out of the apartment, and was now inside with a loaded rifle. At about 1:55 a.m., John Whiteman, Chief of the Reservation Police Force and father of Charles Whiteman, arrived at the Hebah apartment and was advised by Svela that Mr. Hebah was drunk and inside with a loaded rifle, and Svela showed him the layout of the apartment.
38. From the time that Officer Moss first arrived at Tigee Village at about 1:15 a.m., until the time that Chief White-man arrived at approximately 1:55 a.m., all was quiet in the darkened Hebah apartment. The officers neither heard nor saw any kind of disturbance except for the mumbled voice which Moss heard. Indeed, none of the officers had seen Mr. Hebah during this time. However, this is not to say that Mr. Hebah was asleep or had passed out. In fact, Mrs. Hebah’s assumption that Mr. Hebah was lasleep or had passed out at the time of her earlier return proved to be incorrect.
39. None of the officers had a signed complaint or a warrant of any kind from any source authorizing the arrest of Mr. Hebah on any charge. The officers carried with them complaints for complaining parties to sign, and they would ordinarily act upon a signed complaint. There was a tribal judge only 3 or 4 miles away who could have issued a warrant for Mr. Hebah’s arrest. Svela testified that he was aware of the Code of Federal Regulations and conducted schools with respect thereto. Norman Moss has attended such schools and received a certificate therefrom.
40. After being briefed, shown the apartment layout, and having been told which bedroom Hebah was probably occupying, Officer Charles Whiteman proceeded to the rear of the apartment to assist Officer Moss. However, finding that Moss had already entered the apartment and turned on some of the lights, Charles joined Moss inside. Moss had by this time inspected several rooms of the apartment and was about to open the door of the bedroom that Mr. Hebah was occupying. Charles knew that Hebah was thought to be occupying that particular bedroom, and he stopped Moss from opening the *770door. Neither of the officers made any attempt to talle to Hebah through the bedroom door, or to positively establish that he was in that bedroom.
41. Special Officer Svela and Chief Whiteman remained at the front of the Hebah apartment to keep the locked front door under surveillance, however after observing a light come on in the apartment Svela went to the rear of the apartment to investigate. Chief Whiteman remained at the front door. Svela eventually entered the Hebah apartment through the back door, made a quick search of the apartment and joined the other officers. Officer Moss then unlocked the front door and let Chief Whiteman in.
42. After all of the officers were inside the Hebah apartment, they positioned themselves about the closed bedroom door. Charles Whiteman was in the hall leading to the back door. Officer Moss positioned himself at the junction of the kitchen and living room, near the front door, while Special Officer Svela and Chief Whiteman flanked the closed bedroom door. Svela was the first to try to coax Hebah to come out of the bedroom and to discuss the situation. Next Chief Whiteman, from his crouched position next to the door, attempted to coax Hebah out of the bedroom, but to no avail. At one point, Chief Whiteman called Hebah “Dry Meat” a nickname which Hebah and the Chief called each other in the past, and which the Chief did not find offensive. The appellation did have connotations concerning one’s sexual adequacy. However, instead of Hebah indicating a willingness to discuss his problem, he told the officers that if they wanted him, they would have to come in and get him. Further, to Svela’s inquiry about whether he was armed, Hebah replied that they would have to come in and find out. There is no doubt that Hebah knew that he was being called by Chief John Whiteman of the Tribal Police for in response to at least one of the Chief’s calls, Hebah replied: “No, John, come on in and get me.” In all, both Svela and Chief White-man tried without success for about 10 minutes to talk Plebah out of his bedroom.
43. During this 10 minute period, the officers did not tell Plebah what they wanted him for, that he was under arrest, *771nor did they positively identify themselves. However, there is no donbt that Hebah knew that he was talking with tribal police officers.
44. As a result of Mr. Heibah’s refusal to come out to talk, Special Officer Svela decided to use tear gas in an attempt to get him out of the bedroom. Special Officer Svela felt that maximum effectiveness would be achieved if the tear gas were discharged inside of the bedroom occupied by Hebah. Svela knelt beside the door and with one motion turned the door knob and pushed the bedroom door open. However, because of an obstruction, the door opened only 6 to 8 inches. Almost simultaneously with the opening of the door, Svela threw in the gas canister grenade, and Hebah fired a shot from his rifle. Something, possibly a fragment of the door or a wood splinter, whistled past Svela’s head. Because of the limited opening of the door, the tear gas grenade struck the door or door jamb and bounced back.
45. The tear gas canister used was approximately 6-8 inches in length and 3% niches in diameter. It was of the jumper type that was capable of self-propulsion after it went off, and it emitted its contents from several openings in the canister. Althougjh the canister indicated that it should be used before 1958, Svela thought that it would, nonetheless, serve its intended purpose in 1968. In this instance, the tear gas canister followed a 5-foot long and 1-foot wide path along one wall of the living room.
46. Officer Charles Whiteman, who was positioned at the rear of the apartment, heard the “pop” of the gas canister and smelling the gas left the apartment by way of the back door. Moss, who was positioned at the junction of the kitchen and the living room left the apartment by way of the front entrance. Finally, Chief Whiteman and Special Officer Svela left the apartment by way of the front door. Chief Whiteman recalled hearing the “pop” of the grenade and seeing a white smokelike cloud forming.
47. The officers thought they heard a second shot fired after the tear gas canister exploded and about the time they were evacuating the apartment. However, the officers were able to find only one expended shell in the Hebah apartment after *772a thorough, hour-long search. In the course of this search, the officers found: a single hole in the door to Mr. Hebah’s bedroom about 6 inches up from the floor and about 8 inches in from the front edge of the door; a chip in the tile floor about 8 inches out from the door measuring ¡about 1 inch by % inches which appeared freshly knocked out; a wood-slat-type curtain, which served as a door to the utility room, and which was physically located in front of the apartment furnace had two holes in it at about 2 feet, 5 inches and 1 foot, 8 inches from the floor, respectively; two indentations in the furnace, corresponding to the two holes in the curtain, were also found; and two slugs of bullet lead were found in the utility room, the slugs were approximately of equal size and collectively weighed less than the lead slug from an unfired .22 caliber bullet.
48. Charles Whiteman took up a position outside the rear door of the Hebah apartment. Charles Whiteman, ¡as was the case with each of the other officers, had not drawn his revolver during the entire time he was inside the apartment. Moreover, he did not draw his revolver after he was outside of the apartment. After leaving the Hebah apartment, Chief "Whiteman turned to the right and went behind a solid concrete-block abutment which is located about 8 feet from the door, projects about 4 feet from the front wall of the apartment, 'and extends vertically from the ground to the roof of the apartment, to draw his police revolver. Moss 'after leaving the apartment, ran to the left of the front door and momentarily went behind a similarity located 'and designed abutment and drew his service revolver. Moss then assumed ¡a partially exposed position at the edge of the abutment which would give him an unobstructed view of the Hebah front door, and aimed his revolver at the Hebah door. Svela ran to the left of the front door, around Moss and behind the abutment, and drew his revolver. Svela was able from his position, to view the front door of the Hebah apartment.
49. By this deployment, the Whitemans could cover the rear door, and Chief Whiteman, Svela and Moss could cover the front door. The officers expected Mr. Hebah to come out of his apartment as a result of the tear gas. From Mrs. *773Hebah’s report, and from what occurred inside the apartment, the officers assumed that Hebah would come out armed with his rifle. None of the officers had extensive experience with tear gas, however they were fully aware of how to use mace and the effect which mace has on a person. The effectiveness of tear gas is directly related to the time and amount of tear gas that a person is exposed to. Tear gas, inter alia, bums the eyes causing them to water or tear. There is a tendency for persons who have been gassed to mb their eyes. Also, a person who has been effectively gassed would find it extremely difficult to accurately aim a rifle. An exposure of 5 to 10 seconds to tear gas of the type used in the Hebah apartment could be enough to drive a person out of the apartment. However, it is not at all certain that Hebah’s exposure to the tear gas was sufficient to render him totally helpless or incapable of firing a rifle.
50. While John Whiteman, still behind the abutment, was motioning to Charles Whiteman to reposition himself so that their relative positions would not be in each others line of fire, Hebah came out the front door. The total time which elapsed from the time that the officers assumed their positions relative to the front and rear doors of the apartment, ¡and Hebah’s appearance at the front door of the apartment was estimated by 'Svela to be 5 to 10 seconds.
51. Hebah came through the front door carrying his loaded and cocked rifle. This area was lighted by a front door light. Although Hebah was a ’left-handed shooter, he was carrying the rifle with the stock in his right hand ¡and the muzzle in his left hand. The rifle barrel was pointed generally up and in the direction of Svela and Moss. Hebah passed through the door, took a couple of quick steps on to the concrete entrance slab and momentarily paused. Seeing this, Svela cautioned Moss to “Watch him, watch him.” Hebah then turned his head land eyes toward Moss and Svela, and simultaneously raised his arms with the rifle. None of the officers ordered Hebah to drop his rifle, told' him that he was under arrest, or gave him any other warning or command. Instead Moss fired a single ¿hot from his standing position approximately at the edge of the abutment, mortally wounding Hebah. Hebah *774dropped the rifle at his feet and fell backward to a sitting position with his back against the outer wall of the apartment adj acent to the front door.
52.Svela, Moss and Chief Whiteman approached Hebah. Svela quickly picked up the rifle and set it to one side, from that point on Chief Whiteman took possession of the rifle. A later inspection showed the rifle to have eleven bullets in its magazine, one bullet in its firing chamber and it was cocked for firing. Hebah was placed in a police car and taken to the Fort Washakie Clinic for treatment. The clinic doctors felt that an operation was necessary, and so spent about 5 minutes stabilizing Hebah in preparation for transfer to a hospital where thoracic surgery could be performed. Hebah arrived at Bishop Randall Hospital in Lander, Wyoming, at about 2:20 a.m. There the doctors established that Hebah had sustained a bullet wound in the anterior chest to the left of the sternum at the level of the second rib. The bullet entered at the left first rib and became lodged near the right fourth rib. Hebah was 'given blood and a tracheotomy performed. However, again because of limited facilities, Mr. Hebah was flown to University Hospital in Salt Lake City, Utah, where, on March 14, 1968, he died while undergoing surgery. The cause of Hebah’s death is officially described as “gunshot wound left anterior thorax perforating ascending aorta and esophagus.”
53. While the three other officers were taking Hebah for hospitalization, Chief Whiteman reentered the Hebah apartment and aired it out by opening two or three windows. He also told the crowd of people which had gathered, including Mrs. Hebah, to stay out of the apartment. He then left for the police station and waited for further developments.
54. Chief Whiteman, after being told of Hebah’s death, went to the Hebah apartment with another officer to inform Mrs. Hebah. He found Mrs. Hebah crying in the bedroom of her apartment. She had already learned of her husband’s death from a doctor. After expressing his sympathy, Mrs. Hebah told the Chief: *775At about 5:10 a.m., the four officers returned to the Hebah apartment to conduct an investigation for purposes of making a report of the shooting.
*774Robert was sickly * * * he always wanted to shoot it out with a policeman and I think that’s the way he wanted it * * *.
*77555. An inquest with respect to Robert Hebah was called and convened on March 19, 1968, at Fort Washakie, Wyoming, by Larry L. Lee, Coroner of Fremont County, Wyoming. Mrs. Hebah, Harry Svela, and Norman Moss were called and gave sworn testimony as to the events leading up to and culminating with Mr. Hebah’s death. Cecelia Rose Armajo was called, but being too emotionally distraught to testify, the coroner excused her after she said she generally agreed with the testimony given by her mother.
Conclusion ob Law
Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover on her claim. Therefore, plaintiff’s petition is dismissed.
T. 899:
“Q [Mr. Spence] And when you got out of the house, you got behind the abutment, didn’t you ?
“A [Moss] Xes, about right here in a kneeling position."
Officer Svela, who “didn’t give any consideration to shooting him [Hebah] at all”, was also behind the abutment “slightly to the left of Norman Moss” (T. 123-24).
T. 904:
“A I was behind the abutment, then I moved back out again * * *
“Q Did you testify, [at the corner’s inquest], ‘I went in behind that abutment and puUed my revolver out ?’
“A For a short time, X did.
“Q Than (sic) why did you come back out again?
“A So I would get a better shot.”
T. 917-18:
“Q Could you Rave bit bim in the leg from that distance while be was standing there looking around?
“A I wasn’t going to wound bim.
“Q Well, X know you weren’t going to wound bim, but I am saying could you have hit him in the leg if you had wanted to?
“A If I wanted to, I suppose X could have shot him in the leg.”