dissenting.
In my opinion there is no need to remand this case to the District Court limited to additional findings on self-defense. The Memorandum Opinion of the District Judge, consisting of nine pages, finds that the decedent, Albert Hayes, had been drinking to excess with friends in a neighborhood tavern located in a high crime area, from 10:00 p. m. on a Saturday evening until 2:00 a. m. on Sunday morning, when the tavern was about to close, and that Hayes was intoxicated. He and his friends left the tavern and proceeded to cross a street when Hayes was nearly struck by an automobile. Hayes engaged in a loud altercation with the driver of the automobile, who had stopped his car. Hayes, who became angry, proceeded suddenly to his nearby car in the parking lot of the tavern. He procured from the trunk of his car a loaded automatic .22 caliber rifle, and returned to the place where he had the altercation with the driver, of the car, but the car had pulled away as he arrived at the scene.
Obviously Hayes’ pursuit of the driver of the car, with a loaded automatic rifle, was for no lawful purpose.
*359Hayes encountered two policemen who, with guns drawn, shouted at him twice to halt and to drop his gun. Hayes did not drop his gun but turned toward the officers with the automatic rifle still in his hands. One of the officers fired the fatal shot which passed through Hayes’ left shoulder at the front and into his chest and spine area, resulting in his death almost instantly.
The Court in its findings concluded that the officer who fired the shot was justified in his actions “in defense of his own life and that of his fellow officer when Hayes turned toward them with a loaded rifle in a posture which in a split second could mean death or serious injury to others in immediate range.” (App. 25.) What additional findings should be required?
The ruling of the Court conformed to the decision of the Supreme Court in Terry v. Ohio, 392 U.S. 1, 23, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also Wiley v. Memphis Police Dept., 548 F.2d 1247 (6th Cir. 1977); Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972), cert. denied, 409 U.S. 1114, 93 S.Ct. 927, 34 L.Ed.2d 696 (1973); Cunningham v. Ellington, 323 F.Supp. 1072 (W.D. Tenn.1971).
In her complaint plaintiff had alleged that the officer shot her husband in the back but this allegation was false and untrue as was shown by the testimony of the medical examiner.
Although the possession alone of the rifle was only a misdemeanor, its use by Hayes in the pursuit of the driver of the car, and his failure to obey the lawful orders of the officers to halt and drop the gun, appear to have been more than a misdemeanor.
The two officers had the right to arrest even for a misdemeanor committed in their presence, and certainly they had the right to prevent a felony from being committed in their presence, and indeed the right to protect their own lives.
As the Court found, there was no proof offered that the actions of the officers were racially motivated.
With respect to the statement in the Order of the majority that one of the officers was involved in earlier shootings, the Order does not state, let alone establish, that any of the shootings were not justified. Certainly if the shootings involved burglars or other felons fleeing from arrest, as shown in the cases above cited, the shootings were justified under the law, as this Court has held.