dissenting:
I find the majority's retroactivity treatment to be erroneous under a proper analysis of Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), and its progeny. I therefore dissent. The majority correctly selects the Chevron Oil test as the appropriate standard in determining whether invalidation of the fleeing felon rule, as previously authorized by statute in Tennessee, should be applied retroactively to impose liability on the City of Chattanooga for relying on and enforcing that rule in 1982. Despite the majority’s effort to minimize the clear legal status of the fleeing felon rule at the time the shooting took place in this case, a proper application of the Chevron Oil test and a careful review of the rule’s constitutional validity at the time of the fatal shooting indicate that this court’s decision in Garner v. Memphis Police Dep’t, 710 F.2d 240 (6th Cir.1983) (hereinafter Gamer II), and the Supreme Court’s affirmance in Tennessee v. Gamer, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), should not be retroactively applied.
The initial hurdle that must be overcome before a court ruling is given retroactive effect is a determination of whether the decision marks a “new principle of law, either by overruling clear past precedent on which litigants may have relied ..., or by deciding an issue of first impression whose resolution was not clearly foreshadowed____” Chevron Oil, 404 U.S. at 106, 92 S.Ct. at 355. Subsequent Court statements have given substance to the “clear break” principle, suggesting that a decision should not be given retroactive effect when it involves a “newly minted principle,” United States v. Johnson, 457 U.S. 537, 549, 102 S.Ct. 2579, 2586, 73 L.Ed.2d 202 (1982); “marks a sharp break in the web of the law;” or “disrupts a practice long accepted and widely relied upon____” Milton v. Wainwright, 407 U.S. 371, 381-82 n. 2, 92 S.Ct. 2174, 2180 n. 2, 33 L.Ed.2d 1 (1972) (Stewart, J., dissenting). Further, the Johnson Court set forth a comprehensive discussion of considerations suggesting nonretroactive application of a court ruling when that decision represents a clear break from prior law:
In general, the Court has not subsequently read a decision to work a “sharp break in the web of the law, ...” unless that ruling caused “such an abrupt and fundamental shift in doctrine as to constitute an entirely new rule which in effect replaced an older one, ____” Such a break has been recognized only when a decision explicitly overrules a past precedent of this Court, ... or disapproves a practice this Court arguably has sanctioned in prior cases, ... or overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved. See, e.g., Gosa v. Mayden, 413 U.S., [665] at 673 [93 S.Ct. 2926, 2932, 37 L.Ed.2d 873 (1973)] (plurality opinion) (applying nonretroactively a decision that “effected a decisional change in attitude that had prevailed for many decades”); Stovall v. Denno, 388 U.S.,[293] at 299-300 [87 S.Ct. 1967, 1971-72, 18 L.Ed.2d 1199 (1967)]. See also Chevron Oil Co. v. Huson, 404 U.S. 97, 107 [92 S.Ct. 349, 355, 30 L.Ed.2d 296] (1971); Cipriano v. City of Houma, 395 U.S. 701 [89 S.Ct. 1897, 23 L.Ed.2d 647] (1969); Milton v. Wainwright, 407 U.S. at 381-382, n. 2, 92 S.Ct. at 2179-2180, n. 2 (Stewart, J., dissenting) (“sharp break” occurs when “decision overrules clear past precedent ... or disrupts a practice long accepted and widely relied upon”).___
457 U.S. at 551-52, 102 S.Ct. at 2588 (citations omitted).1 The underlying concern *229expressed in these cases is the inequity and harshness retroactive application of a new rule of law would impose on parties who had no significant reason to doubt the invalidity or unconstitutionality of a statute or practice. A review of the fleeing felon rule’s history indicates that Gamer overturned “a longstanding and widespread practice” the Supreme Court had previously not addressed, “but which a near-unanimous body of lower court authority ha[d] expressly approved.” Id. at 551, 102 S.Ct. at 2588.
The fleeing felon rule originated early at common law and still constituted the law after nearly two hundred years in this country in approximately one half of the states, including Tennessee at the time Gamer was decided. Garner, 105 S.Ct. at 1703-04 n. 14-16. Tennessee was one of nineteen states that had codified the principle. Legislatures in some states had abandoned the rule by opting for the Model Penal Code language or had curtailed the rule by permitting use of deadly force only in certain circumstances. Id. at 1704 n. 17-18. Significantly, none of the states that had abandoned the common law rule cited any constitutional basis for their decisions, but concluded as a matter of their own policy that the old rule should be replaced or modified. See Garner, 105 S.Ct. at 1702-06; see also Sauls v. Hutto, 304 F.Supp. 124 (E.D.La.1969) (quoting Prof. Wechsler’s statement of the basis for the Model Penal Code position: “[t]he preservation of life has such moral and ethical standing in our culture and society, that the deliberate sacrifice of life merely for the protection of property ought not to be sanctioned by law.” Id. at 131 n. 18, quoting from 1958 American Law Institute proceedings at pp. 285-86).
Prior to this court’s Gamer II decision, no court had struck down the fleeing felon rule as unconstitutional as an unreasonable search and seizure under the fourth amendment. To the contrary, we had on three occasions upheld the Tennessee statute as constitutional.
The first case to examine the Tennessee statute was Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.Tenn.1971), decided by a three-judge panel consisting of Circuit Judge Harry Phillips, then Chief District Court Judge Bailey Brown, and District Judge Robert McRae. Plaintiffs in Cunningham brought a wrongful death action under 42 U.S.C. § 1983 against police officers, the police director, and the mayor and also challenged the constitutionality of the Tennessee fleeing felon statute. The three-judge panel was convened “to hear and determine only the question of the facial constitutionality of the involved statute.” Id. at 1074 (emphasis added). Plaintiffs attacked the statute as violative of the eighth amendment’s prohibition against cruel and unusual punishment; as unconstitutionally vague and overbroad; as a denial of sixth amendment rights to trial by jury, to confrontation of witnesses, to assistance of counsel; and as a denial of equal protection. That court rejected these numerous constitutional arguments and held that the statute is not “unconstitutional on its face.” Id. at 1076.
One year after the court reached its decision in Cunningham, we again addressed this issue, concluding significantly:
This Statute [Tennessee’s fleeing felon statute] has been recently construed and found to be constitutional by a Three-Judge District Court. Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.Tenn. 1971). In any event the police officers were entitled to assume the constitutionality of the Tennessee Statute. “State statutes like federal ones are entitled to the presumption of constitutionality until their invalidity is judicially declared____”
Beech v. Melancon, 465 F.2d 425, 426 (6th Cir.1972), cert. denied, 409 U.S. 1114, 93 S.Ct. 927, 34 L.Ed.2d 696 (1973) (citations *230omitted) (emphasis added). In a concurring opinion, however, Judge McCree expressed his own reservation about the constitutionality of the rule.
Once again this court examined the Tennessee statute in Wiley v. Memphis Police Department, 548 F.2d 1247 (6th Cir.), cert. denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977). In Wiley police officers shot and killed a nighttime burglar who tried to flee when the officers caught him in the act of burglary. In reiterating the constitutionality of Tennessee’s statute, the panel emphasized that the statute had twice been upheld as constitutional in Cunningham and Beech and that the statute’s “invalidity, or that of a similar statute, up to [the time of the shooting] had never been declared by any Court.” Id. at 1250-51. Turning its attention to the four-to-three en banc Eighth Circuit decision in Mattis v. Schnarr, 547 F.2d 1007 (1976), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977), which had found the fleeing felon rule violative of substantive due process, the panel strongly criticized the Mattis majority:
The Eighth Circuit is the only Court to our knowledge which has ever held that such a statute, which is so necessary even to elementary law enforcement, is unconstitutional. It extends to the felon unwarranted protection, at the expense of the unprotected public.
We agree with the dissent in the Eighth Circuit case (Mattis v. Schnarr), which was highly critical of the majority opinion for not following the decisions of other Circuits and for embarking on a new course which should have been left to the state legislatures where it belongs.
Id. at 1252. Concluding that the statute was constitutional, the panel found:
We are of the opinion further that MPD, the City, the Mayor, and the former Mayor, and the Chief of Police had the same right to rely on the law of Tennessee and the decisions of this Court and the decision of the three-Judge Court in formulating their policies. Also, they could rely on the presumption that the Tennessee statute was constitutional and on the fact that no court at that time had ever held that statute or a similar statute to be unconstitutional.
Id. at 1254 (emphasis added). Concurring only in the result, Judge McCree stated:
I concur in the result____ 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.
Id. at 1256.
Thus, until Gamer II, we had repeatedly upheld the constitutionality of the fleeing felon rule, overruling a number of different challenges. Similarly, the Second Circuit in Jones v. Marshall had concluded that the fleeing felon rule presented no fourteenth amendment violation. 528 F.2d 132, 142 (2d Cir.1975). Although the Second Circuit expressed its opinion that the common law rule should be changed as a matter of policy, the court declined to find the challenged action unconstitutional. The court held this issue to be a matter entrusted to the sound policymaking of state legislatures. Id. See also Note, The Unconstitutional Use of Deadly Force Against Nonviolent Fleeing Felons: Gamer v. Memphis Police Department, 18 Ga.L.Rev. 137, 144 n. 30 (1983) (citing state cases to the same effect).
As previously noted, one court did find the fleeing felon rule to violate substantive due process in Mattis v. Schnarr, 547 F.2d 1007 (8th Cir.1976) (en banc) (4-3 decision), vacated as moot sub nom. Ashcroft v. Mattis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 (1977). A bare majority of the Eighth Circuit concluded that the longstanding common law rule could not withstand constitutional scrutiny.
*231Three dissenting judges, whose rationale was later adopted by this court in Wiley, challenged the validity of the majority’s constitutional analysis:
Thus, after a background of five centuries of the common law and two centuries of this country’s existence, lo and behold the majority, ipse dixit, has held that the common law principles embodied in these Missouri statutes are violative of the Due Process Clause of our Constitution. While acknowledging that other courts have reached a contrary decision, the majority shows no interest in the direction taken by other judicial authorities and turns elsewhere for guidance____
******
Indeed, prior to this decision, no court has held that the modification of a statute of this sort falls within the judicial purview delimited by the separation of powers contained in our Constitution. ******
On the other hand, the majority does not cite, nor can I find, any state where the common law rule on the use of deadly force, either codified or uncodified, has been invalidated by either a state or federal court. Those courts faced with attacks on the common law rule allowing all force reasonably necessary to effect the arrest of fleeing or resisting felons have consistently held that these attacks present policy questions for the legislature, not the judiciary. Jones v. Marshall, 528 F.2d 132 (2d Cir.1975); Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.Tenn.1971) (three-judge court); Hilton v. State, 348 A.2d 242 (Me.1975); Shumann v. McGinn, [307 Minn. 446], 240 N.W.2d 525 (Minn.1976).
547 F.2d at 1021-22 (Gibson, C.J., Stephenson, J., Henley, J., dissenting) (footnote omitted). Significantly, the precedential value of the majority view in Mattis was destroyed when the Supreme Court vacated the decision as moot the following year.
Despite a dearth of case law that questioned the validity of the common law rule, and despite the existence of a “near-unanimous body of lower court authority” expressly upholding the rule’s constitutionality, somehow the panel majority discovers Gamer not to present a clear break from prior precedent. The panel majority contends that several circumstances should have put the City of Chattanooga on notice that the rule was in a state of flux. The panel majority offers no case law authority indicating that the City of Chattanooga should have been put on notice that its practice was unconstitutional. The sole case that had cast doubt on the common law rule, adopted for more than a hundred years in Tennessee, had not only been vacated by the Supreme Court, but had been firmly repudiated by this Court in Wiley. It is immaterial that other states had chosen to abandon the common law rule in favor of the Model Penal Code approach. The panel majority fails to appreciate that this court and other courts had repeatedly concluded that a change from the longstanding common law rule was to be reserved for resolution by state legislatures rather than by court mandate.
To support the contention that the City of Chattanooga could have anticipated the Gamer II decision, the majority relies on comments made in Garner v. Memphis Police Dep’t, 600 F.2d 52 (6th Cir.1979) (hereinafter Gamer I) in its remand to the district court. Focusing on Judge McCree’s concurrences, the Gamer I panel reasoned that the Tennessee statute in question had not been conclusively shown to be constitutional. 600 F.2d at 54. Garner I, however, did not dispute that prior cases found the statute to be in fact constitutional. Gamer I did not address the viability of Cunningham’s reasoning, which found the fleeing felon statute to be facially constitutional. The import of the Gamer I’s distinctions was thus equivocal and ambiguous at best. On remand the district court relied specifically on Cunningham, which had not been distinguished in Gamer I. Garner v. Memphis Police Dep't, No. C-75-145, slip op. at 3-5, 11 (W.D.Tenn. Feb. 29, 1980); see also id., slip op. at 8 (W.D.Tenn. July 8, 1981). See *232also Truss v. Collier, 574 F.Supp. 1249, 1255-60 (S.D.Ohio 1983) (decided in the interim between Garner I and Garner II).
In Truss the district judge determined, despite his personal preference to abandon the fleeing felon rule, that he was compelled to uphold its validity in view of Sixth Circuit precedent. Upholding a similar Ohio statute, the Truss court remarked on comments made in Gamer I:
Given the above decisions by the Sixth Circuit, it would be unwarranted, as well as an abuse of the applicable authority, for this Court to conclude that the City of Springfield fleeing felon policy is unconstitutional. This is so, despite indications in later Sixth Circuit decisions that other panels of the Court might prefer a different result. See, Garner v. Memphis Police Dep’t, 600 F.2d 52, 54-55 (6th Cir.1979) (Garner), and Haislah v. Walton, 676 F.2d 208, 214, n. 3, and 215 n. 4 (6th Cir.1982)....
However much this Court might wish to interpret the relevant Sixth Circuit decisions in the manner suggested in Gamer, such a conclusion would be impermissible, particularly with regard to the Wiley decision. As was previously noted, the plaintiff in Wiley did name the governmental entities such as the city and the police department as defendants, and did directly “challenge the deadly force policy of the City of Memphis, ... [claiming] that such policy was a violation of the constitutional rights of her decedent.” Wiley, supra, 548 F.2d at 1248. Thus, it is impossible to conclude that the Sixth Circuit has not spoken on the issue of the constitutionality of the fleeing felon rule. Consequently, until such time as the Sixth Circuit sitting en banc overrules or discards the precedent in Wiley, this Court is bound to follow that decision. Accordingly, this Court must conclude, albeit with great reluctance, that the fleeing felon policy promulgated by the City of Springfield did not violate the constitutional rights of the Plaintiff, Mark Truss. Having reached this somewhat distressing, but necessary conclusion regarding the constitutionality of the fleeing felon rule, the Court will next consider the qualified immunity defense of the Defendant, Paul Collier.
574 F.Supp. at 1260 (footnote omitted).
The question posed for remand in Garner I did not serve as notice to cities such as Chattanooga that the fleeing felon rule was constitutionally infirm. The question put on remand was: “[I]s a municipality’s use of deadly force under Tennessee law to capture allegedly nondangerous felons fleeing from nonviolent crimes constitutionally permissible under the fourth, sixth, eighth and fourteenth amendments?” 600 F.2d at 55. Gamer I did not discuss precedential decisions indicating that the rule was not constitutional; the court merely inserted a footnote citing various cases including the Second and Eighth Circuit cases previously discussed. Additionally the panel noted two law journal articles, one of which raised the fourth amendment as a possible basis for striking down the common law rule. Id. n. 2, 3; see Comment, Deadly Force to Arrest: Triggering Constitutional Review, 11 Harv. C.R. — C.L.L.Rev. 361 (1976). In light of cases reaching opposite conclusions on the constitutionality of the fleeing felon rule, and particularly in light of prior authority in this circuit, Gamer I’s formulation of the question on remand surely cannot be viewed as a foreshadowing of the rule’s demise. To the contrary, Gamer I gave the cities and their police departments no reasoned basis to conclude that prior decisions of this court were destined to be summarily overruled.
This conclusion is supported by two law review articles appearing after the Supreme Court decided Gamer II. These articles determined after detailed research that the constitutional analysis in Gamer was both novel and a clear break from past precedent.
The Supreme Court’s affirmance in Gamer represents an unexpected, but nonetheless logical, extension of existing fourth amendment jurisprudence. The decision was unexpected both because the Burger Court has generally curtailed *233the scope of fourth amendment protections and because the federal and state courts have been almost unanimous in upholding similar deadly force rules. The case also charted new territory because the Court had never before held the means of arrest unreasonable when the officer had probable cause to believe the suspect had committed a crime. In addition, the Court for the first time explicitly recognized that the fourth amendment protects an individual’s interest in life as well as her interests in property and privacy.
The Supreme Court — Leading Cases, 99 Harv.L.Rev. 120, 248 (1985) (emphasis added) (footnotes omitted). Similarly, a comment in The Cincinnati Law Review described Gamer II as a “bold and pioneering step” and noted that prior to the 1983 Sixth Circuit ruling, “[e]xcept for one decision that was later vacated by the Supreme Court ... the federal courts consistently had declined to hold that the application of the fleeing felon doctrine resulted in unconstitutional deprivations.” Comment, Tennessee Code Section 40-7-108 Authorizing the Use of Deadly Force by Police Officers Against an Unarmed Stispect of a Nonviolent Felony Is Unconstitutional Under the Fourth and Fourteenth Amendments---Garner v. Memphis Police Department, 710 F.2d 240 (6th Cir.1983), 52 U.Cin.L.Rev. 1154, 1159, 1167 (1983).
The panel majority’s analysis of the threshold test under Chevron Oil fails to take into account a required focus on how the rulings in Gamer II and Tennessee v. Gamer differed and departed from prior court rulings. This court’s determination that the fleeing felon rule was unconstitutional in Gamer II under the fourth and fourteenth amendments constituted a novel approach that set forth a “new principle of law.” To apply Gamer retroactively is therefore unfair because the City of Chattanooga could not reasonably have anticipated in 1982 that the law might be struck down. The question is whether the ultimate holding in Gamer II represented a clear break in precedent and whether the holding was reasonably anticipated by prior precedent. Only by ignoring clear precedent and focusing on other states’ legislative decisions to amend the common law rule could the City of Chattanooga have predicted that the longstanding fleeing felon rule would be suddenly deemed unconstitutional.
Until today courts have never suggested that the threshold Chevron test can be satisfied by showing that many state legislatures as a matter of policy had opted to revise a particular statute that was based on a long recognized common law principle, despite the absence of any viable judicial decision that had clearly found the common law rule to be unconstitutional. Rather, the Supreme Court has required the clear break to be determined from prior case precedent. When, as with Gamer, a case “overturn[ed] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved”, the Supreme Court has determined that the threshold test has not been satisfied. Johnson, 457 U.S. at 551, 102 S.Ct. at 2587. The Chevron threshold, therefore, has not been satisfied in the instant case.
Next we must consider whether retroactive application of Gamer would further or retard the operation of the Court’s ruling. We make this determination “ ‘by looking to the prior history of the rule in question [and] its purpose and effect____’” Chevron Oil, 404 U.S. at 107, 92 S.Ct. at 355, quoting Linkletter v. Walker, 381 U.S. 618, 629, 85 S.Ct. 1731, 1738, 14 L.Ed.2d 601 (1965). The majority claims that retroactive application of Gamer would further the decision’s purpose — to compensate victims of unconstitutional police misconduct. The panel majority suggests, however, that compensation to the fleeing felon’s family should be the sole focus when the opinion is forward-looking, seeking to deter officers from using deadly force. See, e.g., Garner, 105 S.Ct. at 1700-01; Taylor v. Collins, 574 F.Supp. 1554, 1558 (E.D.Mich. 1983); see also Pembaur v. City of Cincinnati, --- U.S. ---, 106 S.Ct. 1292, 1306, 89 *234L.Ed.2d 452 (1986) (Powell, J., dissenting) (“The primary reason for imposing § 1983 liability on local government units is deterence [sic], so that if there is any doubt about the constitutionality of their actions, officials will ‘err on the side of protecting citizens’ rights.’ Owen v. City of Independence, 445 U.S. 622, 656, 100 S.Ct. 1398, 1418, 63 L.Ed.2d 673 (1980)”). Proof of improper use of deadly force may result in compensation to the decedent’s estate, but this result is merely a collateral effect of applying the Gamer rule. An award of damages against a police officer or a city may encourage future compliance with the rule, but its deterrent effect by retroactive application is highly questionable. Modifying one’s behavior to comply with a future change of a rule, particularly an unforeseeable change, is difficult if not impossible. Retroactive application of Gamer would, therefore, have little, if any, effect of furthering the deterrent goal of Garner.
Nor is the majority’s balancing of the equities appropriate under the third prong of Chevron Oil. As the Pembaur dissent recently observed:
[Retroactive application ... in this context would produce substantial inequitable results by imposing liability on local government units for law enforcement practices that were legitimate at the time they were undertaken. See Griffin v. Illinois, 351 U.S. 12, 26, 76 S.Ct. 585, 594, 100 L.Ed. 891 (1956) (Frankfurter, J., concurring in the judgment) (“We should not indulge in the fiction that the law now announced has always been the law____”). Civil liability should not attach unless there was notice that a constitutional right was at risk. Procunier v. Navarette, 434 U.S. 555, 562, 98 S.Ct. 855, 859, 55 L.Ed.2d 24 (1978).
Pembaur, 106 S.Ct. at 1306 (Powell, J., dissenting) (joined by Burger, C.J., and Rehnquist, J.). That reasoning applies with equal force in this case because the City of Chattanooga was justified in relying on the apparently established constitutionality of the Tennessee fleeing felon rule under Sixth Circuit rulings, a three-judge district court decision in the circuit, and the nearly unanimous judicial approval of the common law rule. To change the rule retroactively to the detriment of defendants and hundreds of other municipalities that would be adversely affected by such a ruling would be unfair.
The majority also found support for retroactive application in the fact that the Gamer Court applied its ruling to the case before it. See Smith v. General Motors Corp., 747 F.2d 372 (6th Cir.1984) (en banc). Our rationale in Smith, however, is inconsistent with the Chevron standards. This inconsistency is set out in the concurring and dissenting opinions in Smith, particularly in the opinions of Judges Merritt and Krupansky at pages 376 and 379. The simplistic analysis of retroactivity made in Smith was first adopted by the Second Circuit in Welyczko v. U.S. Air, Inc., 733 F.2d 239 (2d Cir.), cert. denied, 469 U.S. 1036, 105 S.Ct. 512, 83 L.Ed.2d 402 (1984), but has subsequently been questioned by that court in Byrne v. Buffalo Creek R.R., 765 F.2d 364 (1985)2. Smith’s view of *235retroactivity would preclude meaningful and sensitive consideration and analysis of factors that may counsel against retroactive application as set out in Chevron Oil. I simply do not believe that the Supreme Court has decided that Chevron standards have been set aside whenever the Supreme Court applies an arguably new rule of law to the parties before it. See Gurish v. McFaul, 801 F.2d 225 (6th Cir.1986), wherein this court recognized that “federal courts generally have applied the three part test of Chevron” in determining whether a civil decision of the Supreme Court is to be applied retroactively, citing Northern Pipeline Co. v. Marathon Pipeline Co., 458 U.S. 50, 87-88, 92, 102 S.Ct. 2858, 2880, 2882, 73 L.Ed.2d 598 (1982), and other cases from this court.
Thus under the Chevron Oil analysis mandated by the Supreme Court, Gamer should not be applied retroactively because of the City’s justifiable reliance on the Tennessee statute, the negligible impact retroactive application would have on the Garner rule’s purpose, and the great inequity municipalities would suffer if Gamer is applied retroactively.
Finally, even if the panel majority’s retroactivity analysis were correct, I disagree with the majority’s conclusion that the district court erred in not granting a j.n.o.v. This conclusion fails to give the appropriate weight to the evidence from which the jury reached its decision. Reasonable minds could differ on whether deadly force could be constitutionally used against the decedent in this case. The shooting officer testified that after the window had been broken in the burglarized house, he observed that the fleeing decedent had an unknown object in his hand. Only after the shooting did the officer learn that the object was not a weapon. Moreover, police experience taught that many or most burglars are armed and dangerous.
Despite the panel majority’s imposition of its own interpretation of the evidence, the jury inferred, after being given instructions in accordance with Gamer’s guidelines, that the evidence supported a justifiable basis for use of deadly force under these circumstances. I cannot say as a matter of law that the evidence presented was inadequate to support the jury’s decision. I therefore dissent also from that aspect of the majority’s decision.
Officer Kyle was deemed to have acted in good faith. He believed that Carter was dangerous, did not know if he was armed, and realized that Carter was caught in the act of burglary and was reacting in desperation to those circumstances. The jury, therefore, construing the evidence most favorable to the City, might be allowed to find the City not liable even under Gamer standards. The emphasis in Gamer, as noted by the majority, was on the suspect’s youth and the fact that he was unarmed. “[T]he armed burglar would present a different situation.” 105 S.Ct. at 1706. Kyle himself felt that he had probable cause to believe Carter may have been armed. The police officer in such a situation should not be judged in light of hindsight when it was later discovered that Carter was unarmed.
I would affirm the decision of the district court.
. Although Johnson concerns the retrospective application of a criminal procedure ruling to convictions still pending on appeal, and not to retroactivity in civil cases, the threshold test under Chevron Oil and Johnson *229are essentially the same. The Johnson Court relied on several civil retroactivity cases in defining when a decision presents a clear break from past precedent. Thus the Johnson Court’s amplification on when a clear break in law has been demonstrated is equally applicable to civil cases under the Chevron Oil analysis.
. At the same time, it is well recognized that, in the interest of justice, courts may exclude certain cases from the retroactive application of a judicial decision. See Cipriano v. City of Houma, 395 U.S. 701, 706, 89 S.Ct. 1897, 1900, 23 L.Ed.2d 647 (1969). In determining whether to do that, they consider three factors: 1) whether the judicial decision establishes a new principal of law; 2) whether retroactive operation would advance or inhibit the new ruling’s effect; and 3) whether retroactive operation "could produce substantial inequitable results." See Chevron Oil Co. v. Huson, 404 U.S. 97, 106-09, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971) (quoting Cipriano, 395 U.S. at 706, 89 S.Ct. at 1900). Although we noted in Welyczko that the six-month statute of limitations for wrongful discharge and unfair representation cases ought to be applied retroactively without regard to the above three-factor analysis, neither that holding nor DelCostello [v. International Brotherhood of Teamsters, 462 U.S. 151, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)] itself foreclosed the possibility of there ever being a case in which, because of special circum*235stances, we would find that the retroactive application of the six-month statute of limitations would be appropriate.
Bryne v. Buffalo Creek R.R., 765 F.2d 364, 366 (2d Cir.1985) (applying Chevron Oil). For a recent Second Circuit decision stating that Chevron Oil still governs retroactivity analysis in civil cases despite the fact that the Supreme Court applied the rule to the case before it, see Gargiut v. Tompkins, 790 F.2d 265, 274 (2d Cir.1986).
Since the Second Circuit’s decision in Welyczko and the Sixth Circuit’s holding in Smith, only one other court has addressed whether DelCostello was to be given retroactive effect. Zemonick v. Consolidation Coal Co., 796 F.2d 1546 (4th Cir.1986).