On receipt and consideration of the record on appeal in this nonjury civil *358damages action alleging violation of civil rights under 42 U.S.C. §§ 1981, 1983, 1985, etc. (1970), with jurisdiction founded upon 28 U.S.C. §§ 1331, 1343, etc. (1970), which was tried before a District Judge in the Western District of Tennessee; and
Noting that the District Judge has held that plaintiff-appellant’s deceased husband was guilty of a misdemeanor under Tennessee law by having a .22 rifle in his hands while being drunk on a public street at 2:30 a.m. on the day in question; and that the police officer, K. S. Rooker, who shot him to death was justified in doing so as a matter of self-defense; and
Further noting that when the two police officers approached deceased and drew their service revolvers, it is undisputed that deceased was standing in the street with his back to the officers and the rifle pointed toward his feet, and that when the officers called on him to drop the rifle, that without doing so he began to turn toward them; and
Further noting that what is charged here is willful killing, in violation of the due process clause of the United States Constitution, to which charge the commission of a misdemeanor is, of course, no defense; and that the deceased husband was black and that both the officer who killed him and his partner were white and that appellant also claims the killing was racially motivated, in violation of the equal protection clause; and
Further recognizing that the law expects police officers to take reasonable and effective precautions for protection of their own lives and that no law requires them to allow an assailant to fire the first shot, but that in addition, no law permits the automatic use of deadly force solely because a citizen, white or black, is found committing a misdemeanor even as dangerous a one as possession of a rifle on a public street; and
Further noting that the District Judge did not make specific findings of fact on the directly disputed evidence in this record pertaining to whether or not the police officers ever identified themselves as such or whether the deceased ever pointed or began to raise the .22 rifle toward the two police officers and that the District Judge assumed that there was some unspecified fault with Rooker’s actions in this case; and
Further noting that undisputed evidence shows that this is the third person in six years (2 black and 1 white) whom defendant K. S. Rooker has killed in police action, and the fifth person in six years at whom he has fired (4 black and 1 white),
Now, therefore, the judgment of the District Court dismissing this action is vacated and the case is remanded to the District Court for additional findings of fact (based solely upon the present record) as to whether the police officers ever identified themselves as such before Officer Rooker fired, and whether deceased ever aimed the .22 rifle at the police officers or began to raise the muzzle in their direction.