(Concurring).
I concur in the result because I do not regard this appeal as requiring us to decide whether the rule that permits a police officer to use deadly force to apprehend a fleeing felon when there is no threat to human life is constitutional. On several occasions, we have approved a rule that permitted the use of deadly force by police officers to apprehend a suspected felon when the felon appeared to present a threat to human life. Appellants urge that these decisions do not control this case because there was no such threat here. The district court, however, relied both on the fact that the officers could not have known whether the fleeing persons were armed and on the fact that no other means existed by which they could have been apprehended. There is sufficient evidence in the record to support the conclusion that the fleeing felons in this case did present an apparent threat to human life, and therefore I join in the decision of the court.
Although I agree that reliance on the law by a state officer may exonerate him from personal liability in damages, I do not regard reliance by the officer as precluding declaratory relief if action in reliance on an existing rule violated the constitutional rights of the decedent.