dis-
senting.
I regret that I am unable to agree with the majority decision and that I must dissent. I offer a brief explanation as to why I have come to this conclusion.
The majority correctly ruled the trial judge erred in deciding that ordinary negligence can never support the § 1983 suit. However, there was no necessity for the jury to have to decide that question because, as I view it, the conduct of the three officers added up to a possible conclusion that there was gross negligence and wanton conduct on the part of at least one of the three police officers. In particular I refer to actions of the policeman who fired the shotgun at the victim and killed him.
I am not saying that the conduct of the officers amounted to wilful and wanton conduct on their part. I am saying that there was conduct from which a fact finder could draw such a conclusion. It is, of course, sufficient if the facts would support such a decision. The three officers had control of this man once and they failed to handcuff him and properly search him. If they had been more careful, then they could have avoided the tragedy. Also the policeman who fired the shotgun told the deceased just prior thereto that when the deceased demanded to be released and threatened to kill himself, he was told to go right ahead and kill himself. One officer told Hewitt to go ahead and kill himself. There was some evidence indicating that another of the officers threatened to kill Hewitt if Hewitt did not kill himself.
Based on these facts, the issues ought to have been submitted to the jury.