Joint Appendix

    0 :

Nos. 83-1035 and 83-1070

In the Supreme Court of the United States
October Term, 1983

STATE OF TENNESSEE, 
Appellant, 

vs.
CLEAMTEE GARNER, et al., 

Appellees.
AND

MEMPHIS POLICE DEPARTMENT, et al.. 
Petitioners, 

vs.
CLEAMTEE GARNER, et al., 

Respondents.

On A ppeal From  the United States Court of A ppeals 
FOR THE Sixth  Circuit

On W rit of Certiorari to the United States Court 
OF A ppeals for the Sixth  Circuit

JOINT APPENDIX

(Counsel on Inside Cover)

Appeal Filed December 21,1983 
Petition for Writ of Certiorari Filed December 27,1983 

Probable Jurisdiction Noted March 19,1984 
Certiorari Granted March 19,1984

E. L. M endenhalLj I n c ., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030



H enry L. K lein (Counsel of Record) 
Staff Attorney
1500 First Tenn. Bank Building 
Memphis, Tennessee 38103 
(901) 523-2363 

Attorney for Petitioners

Steven L. W inter 
10 Columbus Circle, Suite 2030 
New York, New York 10019

Attorney for Appellees-Respondents

W illiam  M. Leech, Jr.
Attorney General of Tennessee
450 James Robertson Parkway 
Nashville, Tennessee 37219 

Attorney for Appellant



TABLE OF CONTENTS

Relevant Docket Entries....................................................  1
Complaint filed April 8, 1975 ............................................  4
Answer of Defendants filed September 18, 1975 ........... 19
Judgment on Decision entered March 3, 1980 ..............  25
Judgment filed July 8, 1981 ............................................  26
Testimony of Cleamtee Garner (pp. 8-9, 18-19) ..........  27
Testimony of Talton Douglas Enoch (pp. 46, 62-63) ...... 30
Testimony of Leedell Anderson (pp. 92-94, 104-105) .... 32 
Testimony of Elton Richard Hymon (pp. 129, 133-134, 

145-146, 157, 170-171, 177, 185-186, 188, 190-193, 574,
613-630, 633, 644-646) ....................................................  35

Testimony of Eugene L. Barksdale (pp. 303, 317-318) .... 60
Testimony of John A. Coletta (pp. 132, 204) ..............  62
Testimony of Dr. J. T. Francisco (pp. 225, 229-230, 235,

262-263) ........................................................................... 63
Testimony of Velton J. Rogers (pp. 655, 657-660, 664-

665) ..................................................................................  67
Testimony of Jay W. Hubbard (pp. 577, 593, 595) ....... 72
Testimony of Leslie Burton Wright (pp. 672, 674, 677-

681, 694-695) ...................................................................  74
Testimony of F. J. Wheeler (pp. 697, 701-702) ..........  79
Affidavit of William R. Bracey......................................... 81
Affidavit of Lawrence W. Sherman.................................  90
Affidavit of James J. F y fe ................................................  97
Deposition of Wyeth Chandler (pp. 4, 6, 9-15, 21-22,

27) ..................................................................................  107
Deposition of E. Winslow Chapman (pp. 4, 12-16, 18-20,

27, 29-35, 42-47, 49-54, 60-66) ....................................... 115
Memphis Deadly Force Policy dated February 5,1974 -... 140 
Memphis Deadly Force Policy dated July 16, 1979 ....... 145



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RELEVANT DOCKET ENTRIES

Date NR. Proceedings
4- 8-75 1 Complaint

5- 23-75 3 Motion to Dismiss in Behalf of Defendants

5- 23-75 4 Memorandum in Support of Motion to Dis­
miss

6- 10-75 6 Plaintiff’s Memorandum in Opposition To
Motion to Dismiss of Defendants, Memphis 
Police Department, City of Memphis, 
Wyeth Chandler, Jay W. Hubbard and E. 
R. Hymon.

8- 18-75 7 Order on Motion to Dismiss

9- 16-75 8 Answer of Defendants

7- 12-76 37 Memorandum; of Points and Authorities of
Plaintiff Cleamtee Garner

7- 12-76 38 “Corrected Copy” of Memorandum of
Points and Authorities of Plaintiff Cleamtee 
Garner

8- 23-76 49 Defendants’ Proposed Findings of Fact and
Conclusions.

8- 30-76 50 Plaintiff’s proposed findings of fact and
conclusions of law

9- 7-76 51 Order on Motions for Directed Verdict

9- 7-76 52 Judgment on Decision by the Court

9-29-76 53 Memo Op. Judgment in favor of all defen­
dants rendered

9-30-76 54 Judgment on decision by the Court - dis­
missing case



10-27-76

1-17-77

1-17-77

8-13-79

56 Notice of Appeal - of plaintiff

58 Court Reporter’s Transcript of Trial 
(6) volumes

Six

7-19-79 59

CERTIFIED RECORD MAILED TO 
COURT OF APPEALS - 7 vols of tran­
script; 9 depos.

MANDATE AND OPINION FROM 
COURT OF APPEALS, CASE REVERSED 
AND REMANDED FOR FURTHER PRO­
CEEDINGS AS TO THE CITY OF MEM­
PHIS, AFFIRMED AS TO INDIVIDUALS, 
CERTIFIED RECORD ALSO ENCLOSED

60 ORDER (Parties invited w/in 40 days to 
submit memo as to whether further hear­
ing & trial necessary and/or whether ques­
tions may be resolved on the record with 
opportunity for submission of briefs & 
memo and argument)

9-21-79 63 MEMORANDUM SUBMITTED BY DE­
FENDANTS

10-10-79 64 PLTF’S MEMO IN SUPPORT OF NECES­
SITY FOR FURTHER HEARINGS

10-16-79 65 ORDER, oral hearing set 11-30-79, 10 AM

10-24-79 67 ORDER-Above motion GRANTED

1-15-80 69 MEMORANDUM

1- 24^80 70 SUPPLEMENTAL MEMORANDUM SUB­
MITTED BY DEFTS

2- 7-80 71 PLTF’S RESPONSE TO SUPPLEMENTAL
MEMO SUBMITTED BY DEFTS



3- 3-80 72 ORDER (CRT CONCLUDES THAT
JUDGMENT SHOULD ISSUE FOR 
DEFTS, INCLUDING CITY & POUCE 
DEPT. IN LIGHT OF MONELL)

3- 3-80 73 JUDGMENT ON DECISION BY THE
COURT (Per Order entered 3-3-80, JUDG­
MENT ENTERED FOR DEFTS; CASE 
DISMISSED)

74 MOTION FOR RECONSIDERATION 
W/MEMO IN SUPPORT ATTACHED

3- 11-80

4- 29-80

6-24-80

75 ORDER - Judgment for defendant sus­
pended pending further consideration in 
light of contention that plaintiff was not 
given full opportunity to brief & argue 
merits

77 PLAINTIFF’S MEMORANDUM OF LAW 
W/15 ATTACHMENTS FURNISHED 
W/ORIGINAL ONLY (NOTE: MEMO & 
ATTACHMENTS FILED IN SEPARATE 
FOLDERS -2)

7-30-80 78 DEFT’S RESPONSE TO PLTF’S MEMO 
#77

7- 8-81 79 ORDER - judgment is rendered for City of 
Memphis.

7-13-81 80 JUDGMENT ON DECISION BY THE 
COURT

8- 7-81 81 NOTICE OF APPEAL

8- 7-81 MAILED TRANSMISSION FORM TO 
COURT OF APPEALS

8-21-81 MAILED CERTIFIED RECORD TO 
COURT OF APPEALS



(Filed April 8, 1975)

IN THE
UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT 
OF TENNESSEE 

WESTERN DIVISION

CIVIL ACTION 
No. C-75-145

CLEAMTEE GARNER, father and next of kin of 
EDWARD EUGENE GARNER, 

a deceased minor.
Plaintiff,

vs.
MEMPHIS POLICE DEPARTMENT; CITY OF MEM­
PHIS, Tennessee; WYETH CHANDLER, Mayor of Mem­
phis; JAY W. HUBBARD, Director of Police of Memphis; 
and E.R. HYMON, Police Officer of the City of Memphis,

Defendants.

COMPLAINT

1. On October 3, 1974, Edward Eugene Gamer, a 15 
year old black citizen of the United States and of the State 
of Tennessee, residing in the City of Memphis, Shelby 
County, Tennessee, was shot and killed by an officer of the 
Memphis, Tennessee Police Department. At the time the 
officer shot and killed Gamer, he was acting under color 
of the statutes, ordinances, regulations, customs and usages 
of the State of Tennessee, County of Shelby, and City of 
Memphis.



JURISDICTION
2. This is an action for damages brought pursuant 

to 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988 to redress 
the deprivation of the rights, privileges and immunities of 
Plaintiff’s deceased son, Edward Eugene Garner, secured 
by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amend­
ments to the United States Constitution. Jurisdiction is 
conferred on this Court by 28 U.S.C. § 1343(3) and 28 
U.S.C. § 1331. The matter in controversy exceeds the sum 
or value of $10,000.00, exclusive of interests and costs.

3. The shooting and killing of Edward Eugene Garner 
by a police officer of the City of Memphis also deprived 
the deceased of rights, privileges and immunities secured 
him by the Constitution and laws of the State of Tennessee. 
This action, therefore, seeks damages for wrongful death 
and survival and also with respect to violations of the 
deceased’s state-conferred rights through exercise of this 
Court’s pendent jurisdiction.

Parties
4. Plaintiff Cleamtee Garner is an adult black citizen 

of the United States and the State of Tennessee, residing in 
Memphis, Shelby County, Tennessee. Plaintiff is father 
and next of kin of Edward Eugene Garner, deceased minor, 
who died on October 3, 1974 as a result of defendants’ 
policies, practices, customs and usages complained of here­
in. At the time of his death, Edward Eugene Garner, 
resided with plaintiff and was fifteen years old.

5. All of the individual defendants are citizens of the 
United States and the State of Tennessee, residing in 
Memphis, Shelby County, Tennessee. The defendants are 
as follows:

(a) The Memphis Police Department is a department
or agency of the City of Memphis and is charged by law



with the law enforcement responsibilities of the City 
of Memphis. The Department has a duty to operate 
in a lawful manner so as to preserve to the citizens 
of Memphis the rights, privileges and immunities guar­
anteed and secured to them by the Constitution and 
laws of the United States.
(b) The City of Memphis is a municipal corporation 
organized and existing under the laws of the State of 
Tennessee. The City, pursuant to law, operates the 
defendant Memphis Police Department, which the City 
has the duty to operate in conformity with the Consti­
tution and laws of the United States.

(c) Wyeth Chandler is Mayor of the City and, as 
such, is the City’s chief executive officer. Defendant 
Chandler is responsible for all policies and practices 
and actions or omissions of the Department and its 
members and has the duty to preserve to all citizens 
the rights, privileges and immunities secured by the 
Constitution and laws of the United States. Prior to 
becoming Mayor, on January 1, 1972, defendant Chan­
dler was a member of the Memphis City Council, the 
City’s legislative body.
(d) Jay W. Hubbard is and was, at all times relevant 
herein. Director of Police of Memphis. In that ca­
pacity as chief executive officer of the Memphis Police 
Department, he is responsible for establishing general 
practices, procedures and policies with respect to the 
operation of that Department. Pursuant to that au­
thority he has promulgated regulations relating to 
the use of lethal force by Memphis officers and has 
authorized the use of weaponry and ammunition by 
police officers both of which acts are complained of 
herein. Defendant Hubbard is sued individually and 
in his official capacity with the Department.



(e) Defendant E.R. Hymon is sued individually and 
in his official capacity. At all times relevant, he was 
an officer of the City of Memphis Police Department. 
He is a citizen of the United States and of the State 
of Tennessee, residing in the City of Memphis.

First Claim for Relief

6. On information and belief, since February 5, 1974, 
officers of the Department have been authorized by City 
and Department officials to employ deadly force in the 
following circumstances after all other reasonable means 
to apprehend or otherwise prevent the offense have been 
exhausted:

a) defense of themselves or others when confronted 
with real and immediate threats of serious bodily 
harm or death;

b) where the offense involves a felony and the suspect 
uses or attempts to use or threatens the use of 
physical force against any person; and

c) where the offense involved is (1) kidnapping, (2) 
murder in the 1st or 2nd degree, (3) manslaughter, 
(4) arson, (5) rape, (6) assault and battery with 
intent to carnally know a child under 12 years 
of age, (7) assault and battery with intent to com­
mit rape, (8) burglary in the 1st, 2nd or 3rd 
degree, (9) assault to commit murder in the 1st 
or 2nd degree, (10) assault to commit voluntary 
manslaughter, or (11) armed and simple robbery.

7. On information and belief, police officers of the 
Department are issued .38 Smith & Wesson Special re­
volvers for use in the carrying out of their official respon­
sibilities.



8

8. On information and belief, since the latter part 
of 1973, police officers of the Department have been issued 
Remington 125 grain jacketed hollow-point bullets for use 
in .38 revolvers in the exercise of their official duties.

9. The Remington 125 grain jacketed hollow-point 
bullet is a member of a class of projectiles commonly 
referred to as “Dum-Dum” bullets. Named after an arse­
nal near Calcutta, India where bullets of this type were 
first made, “Dum-Dum” bullets possess the very special 
quality of expanding and flattening more easily in the 
human body than do traditional cartridges for .38 revolvers.

10. Because of the expanding and flattening quality 
of such bullets upon entering the human body they, unlike 
traditional cartridges, do not exit immediately but tend, 
instead, to expend their enormous force within the body. 
This tendency to expend force within the body means 
that persons wounded by such bullets in the head or torso 
areas will undoubtedly suffer grievous bodily harm or 
death.

11. Because of the devastating effect of “Dum-Dum” 
type bullets upon the human body, their use has been 
outlawed in international warfare as violative of bans in 
various international agreements against “projectiles or 
materials of a nature to cause superfluous injury” (Hague 
Convention on Land Warfare of 1899), “arms, projectiles, 
or materials calculated to cause unnecessary suffering” 
(Hague Convention on Land Warfare of 1907 and the Ox­
ford Manual of Naval War of 1913) among others, and 
prohibited by regulations of the United States military 
for use in warfare.

12. On information and belief, on or about October 
3, 1974, Edward Eugene Gamer was observed by E.R. 
Hymon behind a residence located at Vollintine in the 
City of Memphis at about 11 P.M. in the evening.



13. On information and belief, defendant E.R. Hymon, 
ordered the deceased, Garner, to halt, as the deceased was 
in the process of approaching or actually climbing a 6- 
foot cycline fence that extended the length of the area 
behind the residence at 739 Vollintine.

14. When the deceased Gamer, who at the time of 
his death was about five feet tall and under 100 pounds 
in weight, did not respond to defendant Hymon’s order, 
the defendant Hymon shot the deceased in the back of 
the head with a Remington 125 grain jacketed hollow-point 
bullet from his service revolver.

15. Edward Eugene Garner expired at the scene of 
the shooting shortly after sustaining the gun-shot wound 
to the back of his head.

16. On information and belief, the deceased. Garner, 
was unarmed at the time he was mortally wounded by 
defendant Hymon.

17. In using his service revolver armed with “Dum- 
Dum” type bullets, defendant E.R. Hymon knew or should 
have known that his apprehension of Edward Eugene Gar­
ner would be effected only at the cost of severely wound­
ing, maiming or killing the fleeing youth and would pre­
vent, under normal circumstances. Garner’s being sub­
jected to the due process protections of being formally 
charged, tried by a court or jury, and, if guilty, punished 
by incarceration or probation. Defendant E.R. Hymon 
knew or should have known, that his shooting of Garner 
would inflict summary capital punishment, a penalty which 
even a court of law could not impose consonant with 
the Eighth and Fourteenth Amendments at the time the 
incident in question occurred.

18. The wounding and killing of the deceased. Garner, 
by defendant, Hymon, constituted a wanton, willful, ma­



10

licious and/or negligent violation of the deceased’s right 
not to be subjected to summary punishment and death 
at the hands of a law enforcement officer, but rather 
to be charged and tried before a court of law and convicted, 
if guilty, for any crimes he allegedly committed as guar­
anteed by the Fifth, Sixth, and Fourteenth Amendments 
to the United States Constitution, specifically by the Due 
Process Clauses of the Fifth and Fourteenth Amendments.

19. The wounding and killing of the deceased. Garner, 
by defendant, Hymon, constituted a wanton, willful, ma­
licious and/or negligent violation of the deceased’s right 
not to be subjected to unreasonable seizures of his body 
as guaranteed by the Fourth and Fourteenth Amend­
ments to the United States Constitution. In view of the 
fact that the deceased was unarmed and posed no threat 
to the life or person of the defendant, Hymon, or any 
third person, the officer’s resort to lethal force was unnec- 
sary and unreasonable, designed not to apprehend the de­
ceased, but rather to cause his death or grievous bodily 
harm to him.

20. The wounding and killing of the deceased. Garner, 
by defendant, Hymon, constituted a wanton, willful, mali­
cious and negligent violation of the deceased’s right not 
to be subjected to cruel and unusual punishment as guar­
anteed by the Eighth and Fourteenth Amendments to the 
United States Constitution in that the lethal force used 
by defendant, Hymon, was unreasonable and unnecessary 
to apprehend the deceased. Instead, the force used was 
excessive in that the natural and reasonable consequence 
of its application to the deceased was death or grievous 
bodily harm.

21. As a result of his wounding, the deceased. Garner, 
suffered and was forced to endure intense pain and suf­



11

fering prior to succumbing to the mortal damage sustained 
by his body.

22. The wounding and killing of the deceased, Gamer, 
by defendant, Hymon, occurred because the deceased was 
black, that is to say, lethal force would not have been 
resorted to under the circumstances had the deceased been 
white. In that regard, the deceased was deprived of his 
right to equal protection of the laws irrespective of race 
as guaranteed by the Fourteenth Amendment to the United 
States Constitution and by 42 U.S.A. § 1981.

Second Claim for Relief

23. Plaintiff reasserts and realleges paragraphs 6 
through 22 above.

24. The wounding and killing of the deceased. Garner, 
by defendant, Hymon, in violation of the deceased’s rights 
guaranteed by the Fourth, Fifth, Sixth, Eighth and Four­
teenth Amendments to the United States Constitution was 
a direct and proximate result of the defendant, Memphis 
Police Department’s hiring of defendant, Hymon, despite 
the fact that it knew or should have known that defendant, 
Hymon, was unsuited to perform the duties of a law en­
forcement officer and that his employment in that capacity 
would result in his causing grievous bodily injury or death 
to persons in the City of Memphis.

25. The wounding and killing of the deceased. Garner, 
by defendant, Hymon, in violation of the deceased’s rights 
guaranteed by the Fourth, Fifth, Sixth, Eighth and Four­
teenth Amendments to the United States Constitution was 
a direct and proximate result of the defendant, Memphis 
Police Department’s hiring defendant, Hymon, as a law 
enforcement officer with the authority and capacity to 
cause grievous bodily injury to persons in the City of



12

Memphis without providing him with adequate training 
in the use of weapons generally and in the proper use of 
non-lethal and lethal force in making apprehensions.

26. The wounding and killing of the deceased, Gamer, 
by defendant, Hymon, in violation of the deceased’s rights 
guaranteed by the Fourth, Fifth, Sixth, Eighth and Four­
teenth Amendments to the United States Constitution was 
a direct and proximate result of the defendant, Memphis 
Police Department’s hiring defendant, Hymon, as a law 
enforcement officer with the authority and capacity to 
cause death or grievous bodily harm to persons in the 
City of Memphis without providing him with adequate 
training in the use of weapons generally and in the proper 
use of non-lethal and lethal force in making apprehen­
sions and, in reckless and negligent disregard for his lack 
of training, issuing him “Dum-Diim” type bullets, the use 
of which could result only in death or grievous bodily 
injury.

27. The wounding and killing of the deceased. Gamer, 
by the defendant, Hymon, in violation of the deceased’s 
rights guaranteed by the Fourth, Fifth, Sixth, Eighth and 
Fourteenth Amendments to the United States Constitution 
was a direct and proximate result of defendant, Memphis 
Police Department’s (a) providing authorization to officers 
such as defendant Hymon to shoot to prevent the escape 
of persons suspected of committing certain non-violent 
felonies but who pose no threat to the life or physical 
safety of the officer or of third persons and (b) arming 
such officers with “Dum-Dum” type bullets that assure 
that the alleged felon will be grievously wounded or killed 
instantly obviating any possibility that the suspect will 
be brought to justice in accordance with accepted notions 
of due process. In so doing, the defendant, Memphis 
Police Department, authorized the imposition of summary



punishment not the apprehension of criminal suspects for 
disposition by the legal process.

28. As a consequence of the reckless and negligent 
conduct of the defendant, Memphis Police Department, 
as set forth in paragraphs 24 to 27 above, the defendant, 
Hymon, resorted to the use of lethal force where non-lethal 
force was appropriate, mortally wounding the deceased. 
Gamer.

Third Claim for Relief

29. Plaintiff reasserts and realleges paragraphs 6 
through 22 above.

30. The wounding and killing of the deceased. Garner, 
by defendant, Hymon, in violation of the deceased’s rights 
guaranteed by the Fourth, Fifth, Sixth, Eighth and Four­
teenth Amendments to the United States Constitution was 
a direct and proximate result of the defendant. Jay W. 
Hubbard’s hiring of defendant, Hymon, despite the fact 
that defendant, Hubbard, knew or should have known that 
defendant, Hymon, was unsuited to perform the duties of 
a law enforcement officer and that his employment in 
that capacity would result in his causing grievous bodily 
injury or death to persons in the City of Memphis.

31. The wounding and killing of the deceased. Garner, 
by defendant, Hymon, in violation of the deceased’s rights 
guaranteed by the Fourth, Fifth, Sixth, Eighth and Four­
teenth Amendments to the United States Constitution was 
a direct result of defendant. Jay W. Hubbard’s hiring de­
fendant, Hymon, as a law enforcement officer with the 
authority and capacity to cause death or grievous bodily 
injury to persons in the City of Memphis without pro­
viding him with adequate training in the use of weapons 
generally and in the proper use of non-lethal and lethal 
force in making apprehensions.

13



14

32. The wounding and killing of the deceased, Garner, 
by defendant, Hymon, in violation of the deceased’s rights 
guaranteed by the Fourth, Fifth, Sixth, Eighth and Four­
teenth Amendments to the United States Constitution was 
a direct and proximate result of defendant. Jay W. Hub­
bard’s hiring defendant, Hymon, as a law enforcement 
officer with the authority and capacity to cause death 
or grievous bodily harm to persons in the City of Memphis 
without providing him with adequate training in the use 
of weapons generally and in the proper use of non-lethal 
and lethal force in making apprehensions and, in reckless 
and negligent disregard for his lack of training, issuing 
him “Dum-Dum” type bullets for his use on duty, the 
use of which could result only in death or grievous bodily 
injury.

33. The wounding and killing of the deceased. Garner, 
by the defendant, Hymon, in violation of the deceased’s 
rights guaranteed by the Fourth, Fifth, Sixth, Eighth and 
Fourteenth Amendments to the United States Constitu­
tion was a direct and proximate result of defendant. Jay 
W. Hubbard’s (a) providing authorization to officers such 
as defendant Hymon to shoot to prevent the escape of 
persons suspected of committing certain non-violent 
felonies but who pose no threat to the life or physical 
safety of the officer or of third persons and (b) arming 
such officers with “Dum-Dum” type bullets that assure 
that the alleged felon will be grievously wounded or killed 
instantly obviating any possibility that the suspect will 
be brought to justice in accordance with accepted notions 
of due process. In so doing, the defendant. Jay W. Hubbard, 
authorized the imposition of summary punishment not the 
apprehension of criminal suspects for disposition by the 
legal process.

34. As a consequence of the reckless and negligent 
conduct of the defendant. Jay W. Hubbard, as set forth



15

in paragraphs 30 to 33 above, the defendant, Hymon, 
resorted to the use of lethal force where non-lethal force 
was appropriate, mortally wounding the deceased, Garner.

Fourth Claim for Relief

35. Plaintiff reasserts and realleges paragraphs 6 
through 22 above.

36. The wounding and killing of the deceased, Garner, 
by defendant, Hymon, in violation of the deceased’s rights 
guaranteed by the Fourth, Fifth, Sixth, Eighth and Four­
teenth Amendments to the United States Constitution was 
a direct and proximate result of the defendant. City of 
Memphis’ hiring of defendant Hymon, despite the fact 
that defendant City of Memphis knew or should have 
known that defendant, Hymon, was unsuited to perform 
the duties of a law enforcement officer and that his em­
ployment in that capacity would result in his causing 
grievous bodily injury or death to persons in the City of 
Memphis.

37. The wounding and killing of the deceased. Gamer 
by defendant, Hymon, in violation of the deceased’s rights 
guaranteed by the Fourth, Fifth, Sixth, Eighth and Four­
teenth Amendments to the United States Constitution was 
a direct result of defendant City of Memphis’ hiring de­
fendant Hymon as a law enforcement officer with the 
authority and capacity to cause death or grievous bodily 
injury to persons in the City of Memphis without pro­
viding him with adequate training in the use of weapons 
generally and in the proper use of non-lethal force in 
making apprehensions.

38. The wounding and killing of the deceased. Garner, 
by defendant, Hymon, in violation of the deceased’s rights



16

guaranteed by the Fourth, Fifth, Sixth, Eighth and Four­
teenth Amendments to the United States Constitution was 
a direct and proximate result of defendant. City of Mem­
phis’ hiring defendant Hymon as a law enforcement officer 
with the authority and capacity to cause death or grievous 
bodily harm to persons in the City of Memphis without 
providing him with adequate training in the use of wea­
pons generally and in the proper use of non-lethal and 
lethal force in making apprehensions and, in reckless and 
negligent disregard for his lack of training, issuing him 
“Dum-Dum” type bullets for his use on duty, the use of 
which could result only in death or grievous bodily injury.

39. The wounding and killing of the deceased Garner, 
by defendant, Hymon, in violation of the deceased’s rights 
guaranteed by the Fourth, Fifth, Sixth, Eighth and Four­
teenth Amendments to the United States Constitution was 
a direct result of defendant City of Memphis’ (a) providing 
authorization to officers such as defendant Hymon to 
shoot to prevent the escape of persons suspected to com­
mitting certain non-violent felonies but who pose no threat 
to the life or physical safety of the officer or of third 
persons and (b) arming such officers with “Dum-Dum” 
type bullets that assure that the alleged felon will be 
grievously wounded or killed instantly obviating any pos­
sibility that the suspect will be brought to justice in 
accordance with accepted notions of due process. In so 
doing, the defendant. City of Memphis, authorized the im­
position of summary punishment not the apprehension of 
criminal suspects for disposition by the legal process.

40. As a consequence of the reckless and negligent 
conduct of the defendant, City of Memphis, as set forth 
in paragraphs 36 to 39, the defendant Hymon resorted 
to the use of lethal force where non-lethal force was ap­
propriate, mortally wounding the deceased, Garner.



Fifth Claim for Relief

41. Plaintiff reasserts and realleges paragraphs 6 
through 22 above.

42. The wounding and killing of the deceased, Gamer,
by defendant, Hymon, in violation of the deceased’s rights 
guaranteed by the Fourth, Fifth, Sixth, Eighth and Four­
teenth Amendments to the Constitution was a direct and 
proximate result of defendant Wyeth Chandler’s publicly 
expressed support for and approval of, as a member of 
the City Council and since becoming Mayor of the City 
Council, shooting by officers of the Memphis Police De­
partment to prevent the escape of persons suspected of 
committing certain non-violent felonies but who pose no 
threat to the life or physical safety of the officer or of 
third persons despite the fact that he knew or should 
have known that: (a) The Memphis Police Department
was hiring persons as police officers who were unsuited 
to perform the duties of law enforcement officers and 
whose hiring would result in their improperly causing 
grievous bodily injury or death to persons in the City 
of Memphis; (b) The Memphis Police Department was 
hiring persons as police officers with the authority and 
capacity to cause death or grievous bodily injury to persons 
in the City of Memphis without providing them with ade­
quate training in the use of weapons generally and in 
the proper use of non-lethal and lethal force in making 
apprehensions; (c) The Memphis Police Department was 
arming police officers with “Dum-Dum” type bullets, the 
use of which could result only in death or grievous bodily 
injury, thereby preventing any disposition of an alleged 
felon in accordance with accepted notions of due process.

43. In publicly supporting the shooting by police of­
ficers of the Memphis Police Department to prevent the 
escape of persons suspected of committing certain non­

17



18

violent felonies but who pose no threat to the life or 
physical safety of the officer or of third persons, despite 
the factors mentioned in 42(a) through (c) above, defen­
dant Wyeth Chandler placed the prestige and authority 
of his office as City Councilman and later Mayor of Mem­
phis behind the imposition of summary capital punishment 
by Memphis police officers which official policy was in fact 
effectuated in the case of the deceased. Garner, as a result of 
his shooting by defendant, Hymon.

Pendent Claim

44. Plaintiff reasserts and realleges paragraphs 1 
through 43 above.

45. The foregoing acts of defendants Hymon, Mem­
phis Police Department, City of Memphis, Hubbard and 
Chandler which resulted in the death of plaintiff’s son, 
Edward Eugene Garner, also violated the Constitution and 
laws of the State of Tennessee, including but not limited 
to TENN. Code Ann. § 40-808, as authoritatively con­
strued by the courts of Tennessee and served to deprive 
the deceased of rights granted by those provisions.

Prayer

46. Plaintiff respectfully requests that compensatory 
and punitive damages be awarded under the federal claims 
in the total amount of One Million Dollars ($1,000,000) 
for which the defendants are jointly and severally liable.

47. Plaintiff respectfully requests that compensatory 
and punitive damages be awarded under the pendent claim 
in the total amount of One Million Dollars ($1,000,000) 
for which the defendants Hymon, Hubbard and Wyeth 
are jointly and severally liable, and reasonable hospital, 
medical, funeral expenses and expenses of administration



19

necessitated by reason of injuries causing death to the 
deceased, Garner.

48. Plaintiff also requests that this Court grant de­
claratory relief pursuant to 28 U.S.C. §§ 2201 and 2202 
declaring that the use of “Dum-Dum” type bullets by 
Memphis Police officers to apprehend persons fleeing from 
the alleged commission of non-violent felonies who pose 
no threat to the life or physical safety to officers or of 
third persons violates the Fourth, Fifth, Sixth, Eighth and 
Fourteenth Amendments to the Constitution and federal 
laws enacted pursuant to those Amendments.

49. Plaintiff respectfully requests that costs and coun­
sel fees be awarded and that such other, further and addi­
tional relief as may appear to the Court to be just and 
equitable be granted.

(Signatures Omitted)

(Filed September 18, 1975)

(Caption Omitted)

ANSWER OF DEFENDANTS

COMES NOW the Defendants, Memphis Police De­
partment, City of Memphis, Tennessee, Wyeth Chandler, 
Jay W. Hubbard, and E. R, Hymon and while reiterating 
and relying upon each and every ground set forth in their 
Motion to Dismiss, heretofore filed in this cause, for an­
swer to the Complaint filed herein state as follows:

FIRST DEFENSE

1. Complaint fails to state a cause of action upon 
which relief can be granted.



20

SECOND DEFENSE

1. Defendants admit the averments set out in Para­
graph 1 of the Complaint.

2. Defendants deny that this Court has jurisdiction 
as averred in Paragraph 2 of the Complaint.

3. Defendants deny that the shooting and killing of 
Edward Eugene Garner by a police officer of the City of 
Memphis also deprived the deceased of rights, privileges, 
and immunities secured him by the Constitution and laws 
of the State of Tennessee. Defendants deny that this ac­
tion is a proper one for damages for wrongful death and 
survival and further deny that this is a proper action for 
violations of the deceased’s state-conferred rights through 
exercise of this Court’s pendent jurisdiction.

4. Defendants are without information sufficient to 
form a belief as to the truth of the averment set out in 
Paragraph 4 of the Complaint with regard to Plaintiff 
Cleamtee Garner being an adult black citizen of the United 
States and the State of Tennessee residing in Memphis, 
Shelby County, Tennessee, and that he is the father and 
next of kin of Edward Eugene Garner, deceased minor, 
who died on October 3, 1974, and, therefore, deny same. 
Defendants deny that the death of Edward Eugene Garner 
was a result of Defendants’ policies, practices, customs, and 
usages. Defendants are without information sufficient to 
form a belief as to the truth of the averment set out in 
Paragraph 4 to the effect that at the time of his death, 
Edward Eugene Garner, resided with Plaintiff and, there­
fore, deny same. Defendants admit that Edward Eugene 
Garner was fifteen (15) years old at the time of his death.

5. Defendants admit the averments set out in Sub- 
Sections (a), (b), and (e) of Paragraph 5 of the Complaint.



21

With regard to Sub-Section (c) of Paragraph 5 of the 
Complaint, Defendants admit that Wyeth Chandler is 
Mayor of the City of Memphis and as such is its chief ex­
ecutive officer and further admit that prior to becoming 
Mayor on January 1, 1972, Defendant Chandler was a mem­
ber of the Memphis City Council, the City’s legislative 
body. Defendants deny that Chandler is responsible for 
all policies and practices and actions or omissions of the 
Department and has the duty to preserve to all citizens 
the rights, privileges, and immunities secured by the Con­
stitution and laws of the United States.

With regard to Sub-Section (d) of Paragraph 5 of the 
Complaint, Defendants deny that J. W. Hubbard is at this 
time Director of Police of Memphis. However, they ad­
mit that on October 3, 1974, he was Director of Police 
of Memphis, and in that capacity, as chief executive officer 
of the Memphis Police Department, he was responsible for 
establishing general practices, procedures, and policies with 
respect to the operation of that Department. Defendants 
further admit that pursuant to that authority he has prom­
ulgated regulations relating to the use of lethal force by 
Memphis officers and has authorized the use of weaponry 
and ammunition by police officers in certain instances. 
Defendants deny that any regulations promulgated by De­
fendant Hubbard in his official capacity or individually, 
directly or indirectly, violated the constitutional rights of 
the deceased.

6. Defendants admit the averments set out in Para­
graph 6 of the Complaint.

7. Defendants admit the averments set out in Para­
graph 7 of the Complaint, however, Defendants aver that 
not all revolvers are issued by the Department as some 
are privately owned.



22

8. Defendants admit the averments set out in Para­
graph 8 of the Complaint.

9. Defendants admit that the Remington 125 grain 
jacketed hollow-point bullet is a member of a class of 
projectile sometimes referred to as “Dum-Dum” bullets. 
However, Defendants deny that it is commonly referred 
to by that name and aver that proper designation of such 
bullets is “ controlled expansion projectiles.” Defendants 
are without information to form a belief as to the truth of 
the averment that the bullets were named after an arsenal 
near Calcutta, India, and, therefore, deny same. Since the 
Complaint does not define the meaning of “ traditional 
cartridges,” Defendants are without information sufficient 
to form a belief as to the truth of the averment set out 
in Paragraph 9 of the Complaint with regard to the “Dum- 
Dum” bullets possessing the very special quality of ex­
panding and flattening more easily in the human body 
than traditional cartridges, and therefore, deny same.

10. Defendants deny the averments set out in Para­
graph 10 of the Complaint.

11. Defendants admit that the “Dum-Dum” type bul­
lets have been outlawed in international warfare, but deny 
that it is because of the devastating effect it has upon the 
human body and aver that it has no more devastating ef­
fect on the human body than land mines, mortars, re­
coilless rifles, artillery, and atomic weapons which have 
not been outlawed.

12. Defendants admit the averment set out in Para­
graph 12 of the Complaint.

13. Defendants admit the averments set out in Para­
graph 13 of the Complaint.

14. Defendants deny the averments set out in Para­
graph 14 with regard to the height and weight of the de­



23

ceased Gamer, however, they admit he did not respond 
to Defendant Hymon’s order to halt and was shot with a 
Remington 125 grain jacketed hollow-point bullet from his 
service revolver. Defendants deny that the deceased was 
shot in the back of the head and aver that he was actually 
shot in the side of the head.

15. Defendants deny the averments set out in Para­
graph 15 of the Complaint.

16. Defendants admit that the deceased Gamer was 
unarmed at the time he was shot by Defendant Hymon.

17. Defendants deny the averments set out in Para­
graph 17 of the Complaint.

18. Defendants deny the averments set out in Para­
graph 18 of the Complaint.

19. Defendants deny the averments set out in Para­
graph 19 of the Complaint.

20. The defendants deny the averments set out in 
Paragraph 20 of the Complaint.

21. Defendants are without inforaiation sufficient to 
form a belief as to the truth of the averment set out in 
Paragraph 21 of the Complaint and, therefore, deny same.

22. Defendants deny the averments set out in Para­
graph 22 of the Complaint.

23. Defendants deny the averments set out in Para­
graphs 24, 25, 26, 27, 28, 30, 31, 32, 33, 34, 36, 37, 38, 39, 
40, 42, 43, and 45 of the Complaint.

24. Defendants deny that they are liable for damages, 
either compensatory or punitive, under any Federal claims 
and further deny that Defendants Hymon, Hubbard, and 
Chandler are liable for damages, either compensatory or 
punitive, under the pendent claim.



24

25. Defendants deny that Plaintiff is entitled to de­
claratory relief pursuant to 28 U.S.C., Sections 2201 and 
2202, declaring that the use of “Dum-Dimi” type bullets 
by Memphis Police Officers to apprehend persons fleeing 
from the alleged commission of non-violent felonies who 
pose no threat to the life or physical safety to officers or 
third persons violates the 4th, 5th, 6th, 8th and 14th 
Amendments to the Constitution and the Federal laws 
enacted pursuant to those Amendments.

THIRD DEFENSE

1. For further answer to the Complaint, Defendants 
aver that on October 3, 1974, Defendant E. R. Hymon 
and his partner received a call to go to a residence at 
737 Vollintine Street, Memphis, Tennessee, and they ar­
rived upon the scene at approximately 11:00 P.M. where 
they were met by the occupant of 737 Vollintine, who 
advised them that the house next door at 739 Vollintine 
was being burglarized. Defendant Hymon ran back to 
his squad car, got his flashlight and advised his partner 
that someone was breaking in next door at 739 Vollintine. 
Defendant Hymon ran to the rear of the house and heard 
the rear door slam and a noise on the back fence. He 
shined his flashlight on the fence and spotted the deceased 
on the fence at that time. He then called out for the 
deceased to halt. The deceased continued to scale the 
fence, at which time Defendant Hymon fired one shot 
hitting the deceased in the side of the head.

2. Defendants aver that the actions of Defendant 
Hymon are governed by TCA 40-808, which reads as 
follows:

‘ ‘Resistance to Officer — If, after notice of the inten­
tion to arrest the defendant, he either flee or force-



25

ably resist, the officer may use all the necessary 
means to effect the arrest.”

All allegations contained in the Complaint that are 
neither admitted nor denied are here and now denied 
as though specifically denied.

And now having fully answered, Defendants pray 
that this Complaint be dismissed and the costs be adjudged 
against the Plaintiff.

(Signatures and Certificate of Service Omitted)

(Filed March 3, 1980)

(Caption Omitted)

JUDGMENT

This action came on for (hearing) before the Court, 
Honorable HARRY W. WELLFORD, United States Dis­
trict Judge, presiding, and the issues having been duly 
(heard) and a decision having been duly rendered, on the 
remand from the Sixth Circuit,

It is Ordered and Adjudged that in accordance with 
the Order entered by the Court on March 3, 1980, judg­
ment is hereby entered for defendants, including the City 
of Memphis and the Memphis Police Department in light 
of Monell.

Approved:
/s /  Harry W. Wellford

United States District Judge

Dated at Memphis, Tennessee, this 3rd day of March,
1980.

/s /  (Illegible)
Clerk of Court



26

(Filed July 8, 1981)

(Caption Omitted)

JUDGMENT

This action came on for consideration before the 
Court, Honorable Harry W. Wellford, United States Dis­
trict Judge, presiding, and the issues having been duly 
tried (heard) and a decision having been duly rendered.

It is Ordered and Adjudged that in accordance with 
the Order entered by the Court on July 8, 1981, judgment 
is rendered for the City of Memphis.

Approved:
/s /  Harry W. Wellford

United States District Judge

1981.
Dated at Memphis, Tennessee, this 8th day of July,

/s /  (Illegible)
Clerk of Court



27

TESTIMONY OF CLEAMTEE GARNER
« * «

* * * [8] first witness the Plaintiff in this case, 
Mr. Cleamtee Garner.

THE COURT: All right.

Whereupon,

CLEAMTEE GARNER,

after first being duly sworn, was examined and testified 
as follows:

DIRECT EXAMINATION 
BY MR. DAYS:
Q. Mr. Garner, would you state your full name and 

address for the record, please? A. Stand or sit?
THE COURT: No, you may sit, Mr. Garner.
A. (By the witness) My name is Cleamtee Garner. 

You want my address?
Q. That is right. A. I live at 928 Tully, Memphis. 
Q. And how long have you lived at that address? 

A. About 11 years.
Q. Are you the Plaintiff in this case, Mr. Garner? 

A. Sir?
Q. Are you the Plaintiff in this case? A. Plaintiff, 

Plaintiff, yes, sir.
[9] Q. Mr. Garner, could you indicate what your 

educational background is? A. About six grade level.
Q. And where are you originally from? A. Mis­

sissippi, Tillatoba, Mississippi.
Q. How long have you resided in Memphis? A. 

Since 1945.
Q. Since 1945? A. Since 1945.



28

Q. Are you employed? A. I am employed at the 
Memphis Defense Depot.

Q. And how long have you been employed there? 
A. About, since 1952, about 24 years.

Q. And what is your job category at the depot? 
A. W6 material packer.

Q. And have you been in that job since you started? 
A. I haven’t been in that job since I started. I have 
been in that job about 12 years.

Q. I see. At what level did you start in that em­
ployment? A. I started out in laborers, W2 laborers.

Q. Is it correct to say that you moved up from that 
original level to your present position? A. Correct.

* 4> « [18] third degree burglary, you know.
That is when I went in and talked with one of the 

counselors, I believe, and they put him on probation for 
a year.

Q. You talked to a councilman or to a counselor? 
A. A counselor. I believe it was Mr. Rogers, if I’m not 
mistaken. I’m not sure.

Q. And you say as a result of these charges, your 
son was put on one year’s probation? A. Probation, 
that is correct.

Q. As a result of these charges having been brought 
against your son and his being put on probation, did 
you take any action with respect to Eugene’s behavior, 
Edward Eugene’s behavior after that time? A. 'That is 
right. I counseled with him and I chastised him and 
gave him certain hours to be home, you know, during 
the day and at nighttime, and different things.

Q. What were the conditions of his probation, if 
you recall? A. What was the—

Q. (Interposing) Conditions of his probation. Were 
there any requirements that he had to meet to satisfy—



29

A. (Interposing) Restrictions. He had certain times of 
night he would have to be at home. Somebody would 
have to [19] know where he was at all times.

Q. And who in your family, if anyone, assumed the 
responsibility of overseeing that he complied with those 
requirements? A. I would, when I would be at home, 
and my wife was supposed to when I would be away 
from home. Of course, his other brothers and his older 
brother, he was concerned about him and they would 
keep check on him as near as they could.

Q. I believe you indicated that you were away from 
home? A. Yes, I worked the second shift, evening shift, 
and I’m supposed to be at work from four o’clock to 
12:30 o’clock.

Q. And is that the regular shift you had? A. That 
is the regular shift I had.

Q. And you continue to work that shift? A. I stiU 
work that shift.

Q. So does that mean that you were away from 
your home from four o’clock in the afternoon until twelve 
o’clock midnight? A. I get off at twelve o’clock but I 
usually get home about one o’clock if I don’t stop no 
place. Sometimes I stop at the store, at Fred Montesi’s. 
But if I don’t stop, I get home about one o’clock.

Q. Can you recall what, if any, problems Edward 
Eugene * * *



30

TESTIMONY OF TALTON DOUGLAS ENOCH

♦ * ♦ [46] step down, Mr. Garner.
You may call your next witness.
MR. BAILEY: Your Honor, at this time we wish

to call—^may I peep in the jury room to see who is in 
there?

THE COURT: Yes, sir.

Whereupon,
TALTON DOUGLAS ENOCH,

having been duly sworn, was examined and testified as 
follows:

DIRECT EXAMINATION

BY MR. BAILEY:
A.Q. State your full name to the Court, please. 

Talton Douglas Enoch.
Q. And Mr. Enoch, your occupation? A. Architect.
Q. With what firm? A. Gassner, Nathan and part­

ners.
Q. And did I not engage you to go out to 739 Vollen- 

tine in order to view an alleged scene involved in the 
lawsuit in question? A. Yes, sir, you did.

Q. All right. While out there, did you happen to 
view the scene? A. Yes, sir, I did.

♦ ♦ * [62] tell me what the distance— A. (Inter­
posing) That is 37 feet six inches.

Q. 37 feet six inches. A. Right.
Q. When you were out there, Mr. Enoch—and I’ll 

refer to it as a chicken wire fence rimning along the 
west side of the house—was it up or down when you



31

were there? A. Partially up and down. The area near­
est the house was up and then the part nearest the chain 
link fence was down.

Q. All right. Do you know—of course, you wouldn’t 
know what the condition of it was back in October 1974? 
A. I wouldn’t have any idea.

Q. You wouldn’t have any idea. And that chicken 
wire fence was how tall, did you say? A. Three feet.

MR. KLEIN: Three feet. That is all I have. Your
Honor.

THE COURT: Anything further of Mr. Enoch?
MR. BAILEY: Just one other question. Your Honor.

[63] RE-DIRECT EXAMINATION
BY MR. BAILEY:
Q. Does Exhibit 2 show pretty much the condition 

of the fence when you were out there, the chicken wire 
fence? A. Yes, sir. That is what I would—it was up, 
you know, it was erect on the side nearest the residence 
and then falling down or sagging near the chain link 
fence.

MR. BAILEY: All right. That is all. Your Honor.
THE COURT: All right, sir. You may step down,

sir. Thank you.
Grentlemen, why don’t we take a brief recess now 

before you call your next witness and we’ll be ready to 
proceed. About ten minutes.

(Recess.)
THE COURT: Are you ready with your next wit­

ness?
MR. BAILEY: Yes, sir. Mr. Enoch, would you re­

sume the stand again, please?
There were three photographs, Your Honor, I ne­

glected to get testimony on.



32

TESTIMONY OF LEEDELL ANDERSON

* * « [92] on to say that there was extensive cor­
tical injury and superior saggital sinus transection. Do 
you know what that means? A. No, I really don’t.

MR. KLEIN: I have no further questions.
MR. BAILEY: Your Honor, I might observe that

we plan to call Dr. Francisco, who can define that ter­
minology.

THE COURT: In any event, this record is admitted
and Miss Stepp, after the next witness is called, the 
Clerk will have an opportunity to go with you to the 
Clerk’s office and make a copy so that you can retain 
your record and the photostat will be introduced as the 
next exhibit number.

You may call your next witness.
MR. BAILEY: Mr. Anderson.

Whereupon,

LEEDELL ANDERSON,

after first being duly sworn, was examined and testified 
as follows:

[93] DIRECT EXAMINATION

BY MR. BAILEY:
Q. State your name to the Court, please. A. Leedell 

Anderson.
Q. Mr. Anderson, where do you reside? Where do 

you live? A. 739 Vollentine.
Q. And your age? A. Fifty-four.
Q. Married? A. Yes.



33

Q. All right. Is 739 Vollentine where you reside 
the site or the place where young Garner was shot by 
the police? A. Yes. Yes, sir.

Q. AH right, and were you present at the—you 
weren’t present at the actual shooting, were you? A. 
No, sir.

Q. You got home a little later after the shooting? 
A. Right.

Q. All right, and after you got there, did you get 
a chance to see the young boy who was shot? A. They 
was fixing to put him in the ambulance when I rolled up.

Q. I see. And your house had been burglarized, 
had it [94] not? A. Right.

Q. As a matter of fact, was there evidence that 
somebody had gained forceful entry into the home? A. 
Right.

Q. What kind of evidence was there? A. Well, 
the window was broken out and the door hadn’t been 
broken in, so somebody had to go through the window 
to open the door.

Q. You say the door had been broken in? A. The 
door hadn’t been broken in.

Q. Had not been broken in. A. The latch was 
still on it, but when I went in there it was open, so I 
assumed somebody opened the door from the inside.

Q. Was there no sign of any instruments used on 
the door? A. No.

Q. And the door was completely intact? A. Right.
Q. What about your window that you—which window 

are we talking about? A. The back window next to 
the bedroom was broken out.

Q. All right. I ask you to step down just a second,
4i



34

[104] A. (Interposing) They didn’t let her in when 
we first got to—

Q. (Interposing) They let your wife in when she 
first— A. (Interposing) No, sir. They didn’t let her 
in when we first got there.

Q. All right. But she went in before you did, is 
that right? A. She was in about 40 minutes before I—

Q. (Interposing) All right. Was it you just didn’t 
want to go in or they wouldn’t let you in? A. They 
wouldn’t let me.

Q. I see. But how long was it before they let your 
wife in the house? A. I imagine about 20 minutes, 
somewhere like that, before she—

Q. (Interposing) All right. What did you notice 
about the house when you went inside? A. All the 
stuff was out on the floors, all the drawers was pulled 
out, and stuff was scattered all over. That is all I re­
member.

Q. All right. Well, it was obvious somebody had 
been in there and ransacked the house, would that be 
what happened? A. What happened.

[105] Q. All right. How many rooms were upset, 
so to speak, or where there had been drawers out or 
something had been done to the house? A. One that 
I paid any attention to, and that was my wife’s room.

Q. All right. No other room was disturbed as far 
as you remember? A. No, sir. The first I had some 
old coins in there and when they did let me in, I went 
to them. They were still there.

Q. The old coins were still there. Was there any­
thing missing that you know of in the house? A. Well, 
my wife’s rings was missing and she said she had a little 
old purse in there, a pocketbook or something or other. 
She had two five dollar bills in it.

Q. All right. Was that missing? A. Yes, sir.



35

Q. Anything else that you know of that is missing? 
A. Not that I know of.

Q. Did you later recover the ring or the purse with 
the two five dollar bills in it, or did your wife? A. They 
never did recover the ring. So they give her the ten 
dollars up here somewhere.

Q. I see. What about the purse that waŝ —did 
she * * *

TESTIMONY OF ELTON RICHARD HYMON

* * * [129] counsel table if that is more convenient.
MR. DAYS: Fine. I am reading into the record

portions of— m̂y co-counsel has suggested that I take 
the witness stand.

THE COURT: All right, sir.
MR. BAILEY: Your Honor, while Mr. Days is read­

ing, may I indulge or request the Court’s indulgence to 
check on some other witnesses?

THE COURT: Yes, sir.
MR. DAYS: I am reading into the record from the

deposition of Elton Richard Hymon, a Defendant in this 
cause, taken on the 26th day of April, 1976. I begin 
reading from the deposition at page four, lines six to 
nine:

Q. (Mr. Days Reading) Would you give your full 
name once again for the record, and your address? A. 
Elton Richard Hymon; at the time, 901 Woodland, 
Memphis, Tennessee.

(Mr. Days then reading from lines 15 to 24 on page 4:)
Q. Can you indicate to me your educational back­

ground, Mr. Hymon? A. Yes. Where would you like 
me to start?



36

[133] A. How fast, yes.
Q. How fast? A. Yes. In a given amount of time,

yes.
Q. And what distance did you have to run, and if 

you recall, what minimum did people who wanted to be 
police officers have to make? A. I think the distance 
was roughly two miles or two and a half miles; I’m not 
sure. In something like 15 minutes, I believe.

Q. So, it was really endurance as opposed to speed, 
is that right? A. It was a combination of both. It wasn’t 
a situation where you could run a few minutes, and walk, 
and make it in that length of time.

(Turning to page 30 of the deposition, beginning at
line 22:)

Q. Were you given any instruction with respect to 
dealing with persons who are fleeing from what may 
have been the commission of a felony, who are unarmed, 
in terms of resort to lethal force?

(Turning to page 31:)
A. Would you run that by me again?
Q. I will restructure the question.
Were you ever, during training, presented with a 

[134] hypothetical situation where a person is fleeing 
from what appears to be the commission of a felony, 
but is imarmed, and the officer is aware of the fact 
that that person fleeing is unarmed, was such a hypothet­
ical ever presented to you during training? A. I don’t 
think so, but we were given some instances where we 
would—I think most of the instances where we use lethal 
force, it was up to our discretion period. They never 
said, “In this situation, you will use legal force.” It was 
a discretionary situation. But some minor felonies, I 
guess, like larceny, you know, if it was just a minor 
larceny or something of this nature, then we were in­
structed that it wouldn’t be a wise decision to use legal
force.



37

(Turning to page 33 of the deposition, starting at 
line 19:)

MR. DAYS: Will you mark this for identification?
(Whereupon, said document “Agility test” was marked 

Exhibit 2 for identification to the deposition of the wit­
ness.)

Q. (By Mr. Days) Mr. Hymon, directing your at­
tention to Exhibit 2 for identification, it’s a three-page 
document. I want to ask you whether you can identify 
the nature of that * * *

[145] Q. Where is the fire house located? A. It’s 
located at Stonewall and Chelsea.

Q. And upon arriving at 737 Vollentine would you 
described what you observed and what you did?

(Page 55:)
A. Yes. When we arrived, the—a lady was standing 

in the door at 737 Vollentine, and she was pointing to­
wards 739 Vollentine, and she was, you know, just making 
a gesture with her finger, pointing in that direction. And 
I asked her what she was saying, and she made another 
gesture, make some type of gesture with her mouth, 
and I couldn’t understand her, so I went up to the porch 
and asked her what she was saying. Roughly I recall 
her saying, “They are breaking in inside.” And at this 
time I went back to the car and got my flashlight and 
informed my partner of what she said, and told him to 
go around to the other side.

Q. You used the term “They are breaking in.” Did 
you understand her to be saying that there were several 
people inside the house? A. I don’t really think she 
knew. I think that she—I think she might have men­
tioned that she had heard some glass breaking or some­
thing, and she knew that somebody was breaking in. I



38

don’t think the plural form had any indication of her 
knowing.

[146] Q. But you recall her saying something about 
“They” ? A. “They are breaking in inside.”

Q. And after you notified your partner what you 
understood the woman on the porch to have said, did 
you or your partner make any effort to radio that infor­
mation to the dispatcher, to other units in the area?

(Moving over to page 56:)
A. I didn’t make any indication. I don’t know what 

he did from the time that he moved the squad car over 
until the time he got around to the side of the house.

Q. Well, can you indicate what proper police proce­
dure is, to the best of your knowledge, under such cir­
cumstances? Is it appropriate for you, once you’ve re­
ceived information with respect to a crime being in 
progress, to radio that information to the dispatcher? A. 
Well, the first appropriate thing is to investigate to see 
that that’s actually what’s happening. Once we see that 
that is actually what’s happening, we informed the dis­
patcher of our findings.

Q. I see. So, it’s not incumbent upon you to commu­
nicate the information that you receive upon arriving 
on the scene to the dispatcher? A. No. He had already 
received that information.

Q. When you were talking to the woman on the 
porch, ♦ ♦ *

* * * [157] necessarily the best, but it would be 
one form of cover.

Q. Did you place your patrol car in a position where 
it might be resorted to for cover in case the person inside 
were armed? A. No, we did not.

Q. Did you consider doing that at all? A. No,
we did not.



39

Q. Why didn’t you? A. Well, because we had no 
indication that the person was armed. And for one thing, 
when I got to the rear of the house and I saw the subject 
running from the rear door, and I still had no indication 
that he was armed, and if I had then it wouldn’t have 
been a position where we could get the car in and use 
it as a form of cover.

(Page 67:)
Q. Getting back to the woman on the porch, did 

that person indicate anything about the nature of the 
person in the house? Male? Female? A. No, she 
didn’t.

Q. Did she indicate whether she had seen the per­
son inside the house? A. No, she didn’t.

Q. Was there only one person on the porch at that 
time? A. Yes. That’s all I ever did see.

* * * [170] approximate distance between the back 
of the house to the chain link fence? A. No, I don’t.

Q. Do you recall whether the fence was new or old? 
A. It really didn’t look brand new, but it didn’t look, 
you know, rusty.

Q. Would you say the fence was in good condition? 
A. Roughly, I would.

Q. Did the fence run down to the ground, or was 
there any space underneath the fence? A. As far as I 
can remember, it ran all the way to the ground.

Q. Now, you indicated that you saw some weeds 
beyond that fence, is that right? A. Yes.

Q. Can you describe those weeds? A. As far as I 
can remember, I believe it was Johnson grass or regular 
grass, just tall grass.

Q. How tall would you say the grass was? A. Well, 
I would think that it came up just roughly—T think that 
it came up to almost the height of the fence.



40

Q. It was almost six feet high? A. It was rather 
high. I am not sure that the fence was six foot, but Fd 
say almost, or maybe half the height of [171] the fence, 
but it was tall.

Q. Could you see beyond the weeds? A. No, be­
cause it was a dark area.

Q. Well, could you see how deep the grass was 
with your flashlight? A. I wasn’t really paying any 
attention to it, as much as I was the subject.

Q. Well, is it fair to say that based upon what 
you were able to see, the grass could have been tall 
one foot beyond the fence and not tall after that? A. It 
could have been tall one foot beyond the fence?

Q. Yes. A. No, I wouldn’t think so. From watch­
ing him in the grass, and I watched him in the area 
around, I just don’t recall exactly how it was, but to 
the best of my ability, I was recalling that he was over 
the fence, then he was gone because the grass was—to 
me it was that tall.

Q. What, if anything else, did you observe about 
the back of the house? You described the fence, the 
grass, the building. Were there any clotheslines in the 
back yard, to your knowledge? A. I guess roughly 
it was. I think I remember seeing a clothesline.

Q. You also described seeing a garbage can. Can 
you ♦ ♦ ♦

[177] A. I saw—I couldn’t plainly see him, but I 
saw, you know, I knew it was an individual; and again, 
I knew it was a black male.

Q. Was this person’s face turned toward you at 
any point? A. I believe he looked in my direction, yes.

Q. Do you recall the position of his feet at the 
time that you shined the light? A. No, I do not.



41

Q. Do you recall the position of his hands at the 
time you shined your light? A. Yes. I believe his 
hands were grasping the fence, and I believe he was in 
a stooped position.

Q. And after you cried “halt” did you keep your 
flashlight on this individual? A. Yes, I did.

Q. And what happened after that? A. My partner, 
sometime before that, had made it to the edge of—to the 
corner of the house, the southeast comer of the house, 
and the individual stopped and I told him—my partner, 
that he was around behind the building, you know, on 
the fence. And told him to come around and get him.

Q. All right. Now, your partner had arrived at 
the southeast corner of the house, is that right?

* * * [185] fence; and before I could have made 
a step to get over the fence, he would have been already 
over the fence. I mean, it was just that quick.

Q. Did you at any point instruct your partner to 
try to circle around the other side of the fence, if pos­
sible, to head him off? A. It happened too fast.

Q. You didn’t think about that? A. Well, I would 
have thought about it, you know, had it been a slow 
process. But like I said, when I told my partner and 
he started in that direction, then the individual was 
already up at the top of the fence. And as far as I can 
recall, there was no way that he could have gone around 
and circled.

Q. Did you indicate anything to your partner about 
whether this individual was armed? A. I don’t recall 
us discussing that. I’m sure that the—excuse me. I’m 
reasonably sure that the individual was not armed, be­
cause had he been armed, I assume that he would have 
attempted to show that by firing a weapon, or I assume



42

that he would have thrown it down, or I assume that 
I would have seen it.

Q. Well, if you had had any questions about whether 
this person was armed, would it have been your respon­
sibility [186] to notify your partner of that fact? A. 
Definitely.

Q. And what would have been the normal way you 
would have gone about notifying your partner of that 
fact? A. Well, I would have—the thing I would have 
said, I guess, is that “He has a weapon” or “He has a 
gun” and I would have taken more cover than what 
I had.

Q. Did you have a riot gun in your car that evening? 
A. Yes, I sure did.

Q. During the course of this deposition I have been 
using the term “individual” and so have you. Is this 
individual we’ve been discussing Edward Eugene Garner? 
A. Yes.

Q. You later determined that this person was Ed­
ward Eugene Gamer? A. Right.

Q. Did you tell your partner to shoot Edward Gamer 
at the time you told him where he was located, that is, 
where Garner was located? A. No.

Q. Tell me again what you recall saying to your 
partner. A. I recall telling him that he was on he 
fence, on the side of the house, or in back of the house.

*  *  * [188] that time. It wasn’t exactly toward me; 
his whole body was at an angle.

Q. His whole body was at an angle, meaning exactly 
what? Could you see part of his face at the time that 
he was climbing over? A. Just the side.

Q. You could see the side of his face? A. Yes.
Q. Could you see part of his chest? A. No. His 

chest would have been in front.



43

Q. Could you see his hands at all times? A. I’m 
reasonably sure I could.

Q. Did you aim your gun at that point? A. No. 
It was a point shoulder position. It was not aimed—I 
knew that I had the revolver on him, but it wasn’t aimed 
at any certain portion other than the widest portion of 
the body.

Q. Under those circumstances were you following 
the correct procedure in firing your gun? Let me clarify 
it a little bit more.

Was the way in which you fired the gun according 
to proper police procedure, the stance that you took, 
the way you pointed your gun, and the way you fired 
it? A. I couldn’t elaborate on the stance because I 
don’t ♦ ♦ ♦

[190] A. No.
Q. After you fired, what took place? A. After I 

fired, my partner came around where the individual was 
going across the fence, and said that he was bleeding 
badly from what seemed like the head, I think he said. 
He was slumped over the fence.

Q. Your partner yelled this information to you, or 
stated this information to you? A. He stated it to me.

Q. And then what did you do? A. I proceeded 
over to Garner. We got him off the fence, and I advised 
my partner to call for the lieutenant and ambulance and 
Crime Scene—

Q. (Interposing) How did you proceed over to the 
fence? A. By stepping across the—what appeared to 
be the chicken wire fence.

Q. So, you stepped over the fence, that is, the 
chicken wire fence? A. Yes.

Q. And went to the chain link fence where Garner’s 
body was draped? A. Right.



44

Q. And did you remove his body from the fence?
[191] A. Yes.

Q. Did you do that by yourself? A. I don’t recall. 
Seemingly, we both removed it from the fence.

Q. Let me backtrack just briefly for a moment.
At the time you saw Garner at the fence, can you 

indicate what the relationship of his body was to the 
fence, how much fence was above his head at the point 
he was standing at the fence? Was there any fence 
remaining above his head? A. I would think that in 
the stooped position, he was probably about halfway the 
height of the fence.

Q. So, he was somewhat stooped at the time? A. 
Right; in a jumping position.

Q. I see.
You are speaking of before the shot was fired? A. 

That’s right.
(Turning to page 107 of the deposition:)
Q. At the time that this incident occurred on Octo­

ber 3rd, who was in charge? Were you in charge, or 
was your partner in charge? By “in charge” I mean 
who had the superior rank? A. I did.

Q. So, you were in charge, is that right? A. Right.
[192] Q. When you first perceived a figure moving 

from the back of the house to the fence, what was your 
impression of the size of that person? A. In relation 
to what? Height? Weight?

Q. Height and weight. A. Well, I really didn’t 
have an opportunity to get a vivid impression. He looked 
—looked like an adult, I mean, by—you know, by face, 
by the look, well, I couldn’t tell really from the door 
to the fence, but once I shined the light on the fence, 
as far as I could see, considering the lighting factor, he 
looked to be about seventeen or eighteen years old.



45

Q. Well, what sense did you get of his size when 
he was at the fence and you could see his face? A. He 
wasn’t short, you know, which would indicate that he 
wasn’t necessarily that young, and he wasn’t real tall. 
I would say he was in the neighborhood of five-five or 
five-seven, and I would say maybe a little larger weight, 
a hundred and maybe thirty pounds, just roughly.

Q. Do you recall whether Garner was wearing a 
coat that evening? A. I don’t think he was. I’m not 
sure.

Q. Would it be fair to say that what you saw, his 
physical appearance, would not have been distorted by 
any [193] additional clothing or unnecessary clothing? 
A. That’s not necessarily so. I don’t remember what 
he had on.

Q. I see. You testified, did you not, that when 
Garner reached the fence he paused for a moment before 
going up on the fence? A. Right.

Q. Could you give any quantification to that period 
during which he paused? How many seconds? How 
many minutes did he pause? A. Well, roughly, using 
my judgment, I would say that as I appeared and shined 
the light on him and said “police; halt” there was a 
moment of, you know, stopping and looking, maybe to 
see that I was who I said I was, since I had some light 
from the house next door. And then, at the same time, 
after I finished saying that, I had noticed that he stopped 
a few minutes, and I was telling my partner to go around 
and get him because he had stopped, you know, that’s 
when, after the second time—

Q. (Interposing) You said you saw him pause there 
for a few minutes. Do you mean to say that he was 
in a paused position for a period of time that could 
be measured in minutes? A. Well, I would say, I guess 
I could say that, yes, * * *



46

* * * [574] attempt to simulate anything but as 
conditions allegedly or purportedly were, but we simply 
have that opportunity with counsel present at the place 
after dark, but since neither side is pressing us on that 
point, we will make no present plans to do so until or 
unless we hear further from counsel to do that. All 
right. You may proceed.

MR. KLEIN: Your Honor, in view of the Court’s
ruling and as the Court has indicated, not ruling at 
this time on the training procedures, the policies of the 
police department with regard to the use of lethal and 
non-lethal force, and the policy of the police department 
wherein they decided to use the hollow point bullet, I 
would like to call one witness out of turn. Ordinarily 
I would call Officer Hymon first, but I have General 
Hubbard here.

THE COURT: All right. I want to make one other
thing clear. The Court, you are correct that the court 
is not * * *

* ♦ *

[613] Q. Did you own the revolver or was that 
issued by the police department? A. That was police 
issue.

Q. The ammunition that you were issued, was that 
also police issued? A. That was police issue.

Q. Who was your partner on October 3, 1974? A. 
Patrolman L.B. Wright.

Q. All right. And what was your duty hours on 
October 3 , ’74? A. We were working from 4:00 to 12:00.

Q. Was that 4:00 in the afternoon to 12:00 mid­
night? A. Yes, it is.

Q. And I take it that you came on duty at 4:00 
that day? A. Yes, sir.

Q. And your particular duties were what at that 
time? A. My particular duties were to run ward 128.



47

Q. All right. Would you do that in a squad car? 
A. Yes, we were just generally patrolling the area, 
routine patrol.

Q. Do you recall getting a call with regard to [614] 
an incident at 730 or 737 I believe, Vollentine that par­
ticular evening? A. Yes, I do.

Q. Tell me how you first found out about it? A. I 
was, first of all I was in the firehouse, I believe at Chelsea 
and Stonewall, and my partner came in and told me that 
we had received a call of a prowler inside 737 Vollentine, 
and we proceeded from there to that location.

Q. All right. What did that indicate, you say prow­
ler, did the report indicate that there was a prowler inside 
a house, is that the report that you got? A. We really 
didn’t know whether it was a residence or business, but 
it did indicate prowler inside.

Q. And the given address? A. 737 Vollentine. I 
didn’t receive the call. My partner may have been told 
that it was a residence.

Q. Did he come and get you? A. Right.
Q. And what did you do next? A. We left that 

area and proceeded in the direction of the call.
[615] Q. All right. Do you know approximately how 

long it took you to get from where you were at the fire 
station to the residence? A. Well, it took us a little 
longer than usual. I think it was, may have been about 
eight or nine minutes because we got lost on the way 
going to the call.

Q. I see. Was that because you weren’t familiar with 
the area? A. Right, you know, we thought the street 
was one place and the street ended and we thought that 
it was the, we thought it was a bad number, so to speak, 
and we later discovered that it extended on the north side 
of Chelsea.

Q. Who was driving? A. My partner, Leslie Wright.



48

Q. All right. And then tell me what happened, when 
you arrived at the, I take it that you went to 737 Vollen- 
tine? A. Yes, we did.

Q. All right. Tell me what happened then? A. 
When we arrived on the scene, if I recall correctly, we 
were going east down Vollentine to approach 737 and 
we arrived on the scene and there was a lady standing 
out on the porch and pointing in [616] an eastwardly di­
rection to the house next door, and she was mumbling 
something, but we could not hear what she was saying, 
so we were still in the car, both of us sitting in the car, 
so he asked her out loud, “What did you say?” She just 
mumbled and made a motion toward the house next door.

Q. What would the house next door be? A. 739. 
And since I couldn’t understand her, then I got out of the 
squad car and went up to the porch where she was and 
she pointed again and said, “ Their breaking in next door.”

Q. Now, what did she say? A. She said, “They are 
breaking in next door.”

Q. That is her words as best you recall? A. Yes, 
it is.

Q. All right. And then what did you do? What 
did your partner—was he still in the police car? A. Yes, 
he was still in the police car.

Q. All right. What did you do then? A. I went 
back to the squad car, told him what she had told me, 
that they were breaking in next door, they were breaking 
in, however she put it, I got my flashlight out of the car 
and proceeded [617] to the southwest corner of the house.

Q. All right. Did you give any instructions to your 
partner at that time? A. I think I roughly recall telling 
him to go around to the other side.

Q. All right. Let me ask you this about instruc­
tions. Is either one of you or were either one of you, so 
to speak, in charge at that time? In other words, were you



49

superior to Officer Wright or is he superior to you? What 
I’m getting at, were either one of you in command of the 
situation at that time? A. Generally the senior man was 
in command and I was the senior man at that time.

Q. So you told Officer Wright to go around to the 
other side of the house? A. Right.

Q. All right. Then tell me exactly what you did 
step by step? A. After I told him that I proceeded toward 
the southwest corner. I had my flashlight in my hand. 
And sometime between the time that I got there it was a 
rapid procedure, so I assume I immediately started draw­
ing my service revolver and I got to the southwest corner 
of the house, and [618] when I got to the corner and 
looked around, then I heard the door, screen door open 
and slam and I saw a figure run across a streak of light 
that was there toward the south of that location. After 
I had seen that I shined, I started my flashlight shining 
where I had seen him from the beginning in a circular mo­
tion to try and find him, and I picked up a young male 
on the fence or what appeared to be a young male on the 
fence.

Q. All right. When you say a streak of light, what 
was the lighting situation out that at that time? A. The 
lighting was very poor. I recall the lady who gave us 
the directions from the beginning telling us that they 
were breaking in next door, somehow or another flicking 
on the porch light. I absorbed most of that, the light, 
because most of that light was to the side of me, it was 
just a ray of light going across the rear door. However, 
the back portion fenced in area on back was dark, I 
couldn’t see anything.

Q. When you say fenced area, there has been some 
reference to a chain link fence that ran across the back 
property line. A. Right, the chain link fence.

[619] Q. All right. Could you see beyond the chain 
link fence? A. No, I could not.



50

Q. Did you have any idea at that time what was 
beyond the chain link fence? A. No, I did not.

Q. All right. You say that you finally picked up 
this male on the, in the back by the fence, is that what 
you— A. Yes.

Q. All right. What part of the yard was he in when 
you first picked him up? A. He was in the southeast 
corner of the yard over there an outer house.

Q. All right. If I may, let me refer to this exhibit 
that is marked Exhibit 6.

THE COURT: Counsel may approach.
MR. DAYS: Thank you. Your Honor.
Q. (By Mr. Klein) If you would take this pointer. 

Officer Hymon, let me ask you this, does this simulate 
the location at 739 Vollentine? A. I would think that 
is a reasonable facsimile.

Q. Now, show us now which side of the house that 
you came around when you left your car, when [620] you 
say that you proceeded around the side of the house? A. 
O.K. I came around at an angle to about here.

Q. All right. Now, that is the, what corner of the 
house? A. The southwest corner.

Q. All right. Was there a fence in front of you, 
immediately in front of you? A. Right, there was a 
fence about in the area here than ran from the corner 
of the house to the chain link fence in the rear.

Q. All right. And how high would you say that 
fence was? A. I would say it was from three and a 
half to four feet high.

Q. All right. Now, show me where you said the 
someone ran out of the back of the house? I think you 
said that you heard a screen door slam first—where were 
you approximately, if you remember, when you heard the 
screen door slam? A. I was about in the area just adja­
cent to this where I could see, you know, in a straight line 
almost in a straight line down in that direction.



51

Q. You are pointing just about to the comer [621] 
of the house? A. Right.

Q. All right. Now, show me where you said that 
the person running out of the back door went to the 
chain link fence and was by the fence when you put your 
spotlight or flashlight on him, is that what you said? A. 
Right.

Q. Where at the fence was he when you put your 
flashlight on him? A. I was about in the area because 
he ran at an angle here, and he got in the area somewhat 
close to the outer house and close to the corner of the 
outer house near the fence.

Q. You would be talking about the southwest corner? 
A. Right.

Q. Of the outer house? A. Right.
Q. All right. What did you do—well, let me ask 

you this, did you say anything at any point? A. Yes, 
after I had picked him up with my flashlight I immedi­
ately yelled, “police, halt.” And after I had yelled, “Police, 
halt,” I went to call to my partner, you know, a matter of 
seconds, I went [622] to holler to my partner, “He’s on 
the fence.” And my partner said, “What, he’s on the 
fence?” And by that time when I told him that I made 
a couple of steps this way in the direction and just as I 
did that he started over the fence.

Q. When you say you made a couple of steps, now, 
which direction are you—show me where you were when 
you started to make it? A. I was here and I made a 
couple of steps in the direction toward the fence.

Q. Why were you making steps toward the fence? 
A. I was under, initially under the impression that once 
I identified and he stopped momentarily and looked at me, 
that he was going to stay there. I didn’t want to neces­
sarily gamble on my partner getting along, I made a couple 
of steps in his direction hoping in the future to go over 
the fence and we were both going to apprehend him.



52

Q. And then you say, well, tell me then what did 
he start to do as you made your couple of steps toward 
the, I will call it the chicken wire fence? A. About the 
time that I made one foot in front of the other, made the 
step up toward the fence and [623] got even with the 
fence he started over the fence in a leaping, I guess, real 
leaping motion.

Q. All right. Then what did you do next? A. That 
is when I fired one shot and he fell and draped across the 
fence.

Q. All right. Let me ask you this question. Why 
did you fire a shot at that time? A. Well, first of all 
it was apparent to me from the little bit that I knew about 
the area at the time that he was going to get away be­
cause, number 1, I couldn’t get to him. My partner then 
couldn’t find where he was because, you know, he was 
late coming around. He didn’t know where I was talking 
about. I couldn’t get to him because of the fence here, 
I couldn’t have jumped this fence and come up, conse­
quently jumped this fence and caught him before he got 
away because he was already up on the fence, just one 
leap and he was already over the fence, and so there is 
no way that I could have caught him.

Q. Now, was this all happening rather quickly. A. 
It was happening very quickly.

Q. All right. Now, after you fired your shot, what 
did you do? A. After I fired the shot I recall my partner 
[624] going to the fence area and saying that he was hit 
very bad, and I was stepping over the fence and coming 
in that direction.

Q. You say “stepping over the fence” you are talk­
ing about the chicken wire fence? A. Right, the chicken 
wire fence.

Q. Did you have any difficulty getting over the 
chicken wire fence? A. No, I didn’t have any difficulty.



53

The fence was the size that I, you know, could step over 
it.

Q. Well did you know at or immediately before you 
shot what was immediately on the other side of the chicken 
wire fence, and did you know what was in the yard or 
anything about the terrain in the yard between you and 
where he was on the fence? A. I didn’t know what 
was immediately what was on the other side of the fence. 
I do recall seeing some other articles in the yard that 
would have been close to me, clothesline, clothes and tub 
and what have you, which would have closed me down 
to perhaps assure me of having not got, caught him, having 
to push these articles out of the way, and I surely wouldn’t 
have found him in the dark.

Q. Let me ask you this question, was there any [625] 
question in your mind that you could not apprehend him 
on foot? A. Definitely so. Perhaps if the area behind 
him had been light and I would have known the general 
area I would have, you know, I would have if I could 
have seen where he went at a later time, what I’m saying 
from where I was I couldn’t have gotten to him and 
have got him without him getting away. If there had 
been a big floodlight where I could see—

Q. The fact that you didn’t know what was on the 
other side of the chainlink fence, did that influence you 
in any way at all about your decision? A. Definitely 
so.

Q. All right. Did you have any concern about being 
able to get over the chainlink fence? A. Definitely 
so, because I could have easily stepped over the chicken 
wire fence, but, you know, I had my flashlight in one 
hand and my pistol in the other hand and then we got 
the handcuffs and what have you on, which is not exactly 
light, and I would have had to somehow run and hold 
onto my flashlight and hold onto my pistol and somehow



54

spring up and get on across the six and/or six and a 
half foot. No doubt I would have fallen with all of that 
[626] in my hand, and then after that I would have 
to try and find out where I was.

Q. How tall are you? A. I’m 6-4.
Q. Did you think that you would have any difficulty, 

aside from the fact that you had a flashlight in your 
hand and a pistol in your hand, did you anticipate any 
difficulty in getting over the chainlink fence, just climb­
ing it without any handicap, such as a flashlight or pistol? 
A. I think it would have been some kind of problem. 
It is not exactly easy for a 6-4 man to go over a six 
foot fence that way. It would have taken some effort.

Q. What kind of footwear did you have on? A. 
We had on what they call jumper boots, they are some­
what heavy boots.

Q. Would there be any way that you can put your 
foot anyplace in a chain link fence where you can put 
your foot to help you get over the fence? A. No, it 
would have had to have been strength, flipped myself 
over the fence and then got up and tried to go from 
there. There is no way to put anything, you know, as 
far as a stirrup to put your foot in.

[627] Q. Did you have any concern about the sub­
ject being able to outrun you? A. Yes, I did, because 
I have always got that concern, as a matter of fact, well, 
because of the fact he was young and no doubt the fact 
that he has a little more energy, and with me having 
to run with all of the equipment that I had I don’t think 
I could have caught him.

Q. Let me ask you this, did you know what was 
in the house at that time? A. No, I had no idea. The 
only thing that I observed, I saw the garbage can under 
the window and the window broken, which indicated to 
me after the subject came out the door that he had been



55

inside, that something was wrong inside, whether there 
were people in the house or what exactly had gone on 
inside.

Q. Do you know whether or not he had an accom­
plice? A. I had no idea because I assume that he did 
because the lady said when she told us the directions 
that it was, “They were breaking inside,” which indicated 
there might have been more than one.

Q. Did that present a problem for you as far as 
going over the chicken wire fence and going across the 
back yard in the same path where he had [628] exited 
from the back door? A. Well, it certainly did because, 
first of all my partner didn’t exactly—I think he had 
gotten to the corner of the house somewhat at the last 
minute or so, but he didn’t exactly know what was going 
on and I would have had to have watched the subject 
that was on the fence, see if my partner was there and 
then watch the side at the same time to see if there 
was somebody else in the house who might have had 
a weapon or whatever. Basically somebody in the house 
who might come out later on, so I think I had my hands 
full really.

Q. In other words, what you say, you would have 
left your backside exposed to somebody coming out of 
the house? A. Right.

Q. Or somebody in the house who might have had 
a weapon to shoot out—

MR. DAYS: I move to strike the recharacterization
of the witness’s answer.

THE COURT: I sustain the objection to the rechar­
acterization of a witness’s response. Mr. Klein, as you 
know we can only take the proof and evidence from the 
[629] witness, and counsel’s recharacterizing it is im­
proper.



56

Q. (By Mr. Klein) All right. After you got to the 
subject, I think your partner got to the subject first, is 
that correct? A. Right.

Q. All right. What did you observe about the 
subject? A. Well, first of all where he was on the fence. 
He was hanging across the fence about, right about in 
this general area hanging across the fence with his arms 
and chest area hanging across the fence and his feet 
hanging back on this side of the fence.

Q. All right. Let me go back now to the time where 
you first saw him. Did you know positively whether or 
not he was armed? A. I really had no idea as to whether 
he was armed or not. I could only see one of his hands, 
and I wasn’t really— wasn’t really concentrating on it 
as such. I assumed he wasn’t—I figured, well, if he is 
armed I’m standing out in the light and all of the light 
is on me, the I assume he would have made some kind 
of attempt to defend himself, but I had no idea what 
was in the hand or what he [630] might have had on his 
person.

Q. Then after he was taken—who took him off the 
fence? A. My partner and I.

Q. And then what did you all do next? A. We laid 
him down in the area and we saw—we had seen where 
the wound was. We laid him down and I think we took 
a handkerchief and tried to stop the blood. He had blood 
spewing from his head and we tried to exert direct pres­
sure on the wound to stop the blood from running and 
then we called the ambulance, for an ambulance.

Q. How long did it take the ambulance to arrive on 
the scene? A. It took the ambulance something like 
three minutes, if that long, they were very rapid.

Q. And what happened after that as far as the subject 
was concerned? A. He was—



57

Q. Was he taken away? A. He was taken to one 
of the hospitals. I believe it was John Gaston Hospital. 

Q. Did you remain on the scene? A. Yes, I did.
Q. All right. And what happened after that as * *  *

[633] Q. Was any action taken against you as a re­
sult of this shooting? A. Yes, I was relieved of duty 
with pay, as is customary, you know, in any type of action 
such as this, they relieve you of duty with pay pending 
the investigation. I think that was, to the best of my 
knowledge, that was about Friday. I was relieved of 
duty that Friday morning and I think I was back to 
work that Monday.

Q. All right. Was any disciplinary action taken 
against you as a result of this shooting? A. No, it 
wasn’t. I had to go before the Firearm Review Board. 
We have a Firearms Review Board that reviews whenever 
an officer has to fire his weapon. I had to go before the 
Firearms Review Board and tell them basically the same 
thing that had happened out on the scene, and no action 
was taken. They found that I was justified according to 
policy.

Q. You know whether the matter was presented to 
the Shelby County Grand Jury? A. Yes, it was pre­
sented to the Grand Jury on a charge of murder and no 
true bill was returned.

Q. All right. Do you know who testified before the 
Shelby County Grand Jury?

*  *  * [644] that you stepped over the fence, that is 
the chicken wire fence and you went over to where the 
body was located, is that right? A. Right.

Q. Do you have any estimation of how long it took 
you to move from where you were on the west side of



58

the chicken fence over to the east side and to the cyclone 
fence? A. No, I don’t. I imagine it was rather rapid 
because after the shot I really wasn’t expecting neces­
sarily to hit him. Because of it, after my partner told 
me he had been hit and bleeding badly from the head, 
I might have got stunned and stood there for just a 
minute, I don’t know if I rushed immediately over there.

Q. Once you started moving from the west side 
of the house over to the east and to the cyclone fence, 
how long do you think it took you? A. Well, it didn’t 
take me that long. I almost got my neck hung on the 
clothesline wire. It didn’t take me very long, just a 
matter of ducking and moving around.

Q. All right. And I believe you testified that at 
the time that you got to the back of the house you didn’t 
have any knowledge of whether there [645] was one per­
son or several persons in the house, is that right? A. 
Well, from the indication, what the lady gave, I assumed 
that it was more than one because she said, “they” , and 
“they” means plural.

Q. Well, what are you taught, Mr. Hymon, in terms 
of proper police procedure if you think there is more than 
one person running from a house where a burglary has 
been committed and one person runs out to a house and 
you, as an officer, are exposed to the back of the house and 
don’t know whether another person is going to rush out 
of the house, or is it, is the procedure one of shooting at 
the first person who is trying to go out of the yard or not 
shooting at the first person or waiting until the second 
person exits before taking any action? What generally 
is the proper procedure, if you know? A. Well, the pro­
cedure for me would be if I thought there was more than 
one, to approach the one who I did see in a way where I 
could also, so if possible, see the openings of the house. 
In other words, I approach him cautiously.



59

Q. In other words, you would, if I understand you 
correctly, make certain that you would not be in a posi­
tion where you might be shot by someone running [646] 
out of the house who happened to be armed? A. Or for 
him that, or him for that matter.

Q. Or the person that was climbing over the fence? 
A. Right.

Q. Well, did you do that, did you feel that under the 
circumstances that you were in a position whereby you 
wouldn’t open yourself up to this type of possible injury 
by a second person, coming out of the house? A. Well, 
ideally I say that is what I would do, but when you get 
in that moment of situation, I recall perhaps not, you know, 
jumping and running over to him as I knew he wasn’t 
armed because I really didn’t know. I recall being a little 
cautious, I don’t know if I just lingered and stood around 
waiting for somebody else to come out of the house. I 
don’t recall doing that at all.

Q. I believe on direct you also testified you really 
didn’t know whether Garner was armed, isn’t that right? 
Isn’t that what you testified? A. True.

Q. Let me direct your attention again to a document 
that I showed you earlier and ask you whether in the 
course of this examination you were asked anything * ♦ *



60

TESTIMONY OF EUGENE L. BARKSDALE

[303] EUGENE L. BARKSDALE,

having first been duly sworn, was examined and testified 
as follows:

DIRECT EXAMINATION

BY MR. DAYS:
Q. Would you state your full name for the record, 

please. A. Eugene L. Barksdale.
Q. And do you reside in Memphis? A. Yes, sir, I 

do.
Q. Are you presently employed? A. I am on a leave 

of absence from the Memphis Police Department.
Q. And prior to your taking leave of absence, what 

capacity did you have at the Memphis Police Department? 
A. I’m an inspector. At the time that I took my leave of 
absence I was inspector of the personal crimes bureau.

Q. Can you give some indication of the nature of your 
responsibilities as a commander of that division? A. 
Right, I had the administrative duty and responsibility 
and command responsibility of all detectives assigned to 
homicide, assault, sex crimes, * * *

*  *  * [317] if his partner was not there, I think, if 
I’m making myself clear, because you work on a partner­
ship concept.

Q. Mr. Barksdale, how certain do you think an officer 
should be that he could not apprehend a fleeing unarmed 
felon using non-lethal means before he resorts to lethal 
means? A. There again, you know, that is a matter of a 
personal opinion as to what he is thinking at that par­
ticular time because he is under a lot of stress and that



61

adrenalin is running and you are straining to do every­
thing possible to apprehend an individual without resort­
ing to violence, but it is an individual decision to make 
that particular time based on the training and the job 
knowledge that you possess, and that is where the in­
dividual thought comes in.

Q. Well, should an officer be fairly certain that he 
can capture the fleeing felon or reasonably certain or 
merely absolutely certain, what standard? A. If he is 
sure that he couldn’t apprehend that subject, and it is a 
fleeing felon, then under the state law then that is his 
job. Now, if he is sure that he could apprehend and knows 
beyond a reasonable doubt that the individual is not armed, 
[318] then I think he should use whatever means at his 
disposal to apprehend without the shooting.

Q. What about something in between where the of­
ficer knows the felon is unarmed and is not certain that 
he can catch him but thinks that the likelihood is that he 
cannot catch him? A. I think he should make the effort 
to apprehend him without firing a shot.

MR. DAYS: We have no further questions.
THE COURT: O.K. You may examine.
MR. KLEIN: I would like to examine with the same

understanding that I examined Mr. Jones.
THE COURT: You are examining without waiving

your objection.

CROSS EXAMINATION 

BY MR. KLEIN:
Q. Sir, you said you were on a leave of absence? 

A. Yes, sir.
Q. I think it is because you are involved in a political 

campaign at this time? A. Yes, sir, I am, yes, sir.
Q. I don’t mean to be prying. I assume that * * *



62

TESTIMONY OF JOHN A. COLETTA
*  *  *

[132] JOHN A. COLETTA, 

resumed the stand and testified further as follows:

DIRECT EXAMINATION

BY MR. DAYS:
Q. Mr. Collett a, yesterday when we recessed I believe 

we were discussing a concept called relative incapacitation 
index, and you expressed a familiarity with that particular 
phraseology and index. Could you again for the record, 
indicate what you understand that index to reflect? A. 
Yes, sir. Well, the index reflects the ranking or order 
of various projectiles according to this particular study 
by the law enforcement standards program that attempts 
to rate various type of ammunition. However, I must 
say again this morning that any study is subject to criti­
cism, is subject to be tested for its validity. That the 
table in and of itself is nothing but a group of numbers, 
that it must be explained that it must be discussed, the 
premise is brought forth for that to have any value or 
significance whatsoever and then the significance of the 
validity of the study can then again be questioned.

Q. Is this the document to which you have 
been ♦ * *

* ♦ * [204] the characterization of the assumption, 
I’m overruling that the witness is explaining his answer 
and part of what the testimony will be, whether the 
answer will be based upon the assumed question has been 
made or not, so I’m overruling your objection. You may 
proceed.



63

Q. (By Mr. Klein) Go ahead. A. The officer is 
physically barred from the area by a fence so that he 
can’t get to him. The officer has shouted to his partner 
for help, and evidently that help did not arrive. The 
officer saw that the subject was attempting to scale or 
vault the fence and that in the event that he should succeed 
then probably he would escape and feel like that if he 
could see, that in the light, which in a city you stated 
it was dark, but I know that in a city that light is re­
flected and that certainly if he could observe, that he 
could observe the fact that the man was scaling the fence 
and attempting to escape, and that in my opinion, should 
he have been successful in scaling the fence, I don’t 
think that the officer would ever have caught him, so 
I think he was justified for those reasons.

TESTIMONY OF DR. J. T. FRANCISCO
«  * «

[225] DR. J. T. FRANCISCO,

having first been duly sworn, was examined and testified 
as follows:

DIRECT EXAMINATION 

BY MR. DAYS:
Q. Doctor, were you subpoenaed to appear in court 

today? A. Yes.
Q. Would you give, for the record, your full name 

and address. A. Jerry Thomas Francisco, Memphis, Ten­
nessee.

Q. And would you indicate your present employ­
ment? A. Professor of pathology, State of Tennessee,



64

state medical examiner, state of Tennessee, County med­
ical examiner of Shelby County.

Q. Dr. Francisco, would you indicate something about 
your training and background for your present position? 
A. I received my premedical education at the Lambuth 
College and the University of Tennessee at Knoxville, 
M.D. degree from the University of Tennessee here at 
Memphis, one year of rotating internship at the City of 
Memphis Hospital, four years of pathology training at the 
Institute of * * *

♦ ♦ * [229] of a deceased by the name of Edward 
Eugene Garner? A. Yes.

Q. And can you indicate the circumstances surround­
ing your performance of that particular autopsy, that 
is, how was it that an autopsy was performed by you 
of this particular deceased? A. Well, the death was 
reported to the office of the county medical examiner 
relating a death that fell into the categories that are re­
ported, I believe. The body was delivered to the labora­
tories of the medical examiner and at that time a post 
mortum examination was conducted at that time.

Q. Based upon the autopsy that you performed, were 
you able to determine anything about the height and 
weight of the deceased Edward Garner? A. Yes.

Q. And what did your autopsy reveal? A. Height 
64 inches, weight 60 pounds.

Q. Excuse me. A. 60.
Q. Broken down into height in terms of feet, how 

many feet would that be? A. Five feet four inches.
Q. And you indicated the weight to be 60 [230] 

pounds? A. Yes.
Q. Now, Doctor, there has been testimony in the 

record of the deceased Edward Garner’s weight being any­
where from 85 pounds to a hundred and thirty pounds.



65

Are you convinced that the result that is reflected on 
that—reflected as a result of your autopsy weight is an 
accurate one? A. No.

Q. Why do you say that? A. Well, the weight 
of sixty pounds probably represents a light weighing of 
the body. The body, at least based on the photographs, 
the weight of the organs and other factors is probably 
heavier than sixty pounds.

Q. Would you be able to suggest an outside limit 
in terms of the weight of this particular body? A. The 
weight would be less than a hundred.

Q. Were you able to determine anything about the 
overall body structure of this deceased as a result of the 
autopsy? A. Yes.

Q. And what did you conclude? A. This was a 
thin individual.

Q. Is it part of your responsibility in conduct­
ing * * *

* %[235] functioning of the individual? A. Within 
certain parameters, yes.

Q. Within those parameters what would you be able 
to conclude? A. Well, that this level of alcohol would 
probably affect reaction time.

Q. Dr. Francisco, I would like to direct your atten­
tion to the area of wound ballistics.

MR. DAYS: And, if Your Honor please, I think it
would be helpful to have a board on which Dr. Francisco 
could write.

THE COURT: Yes, sir. You may approach if that
would be easy and counsel and adversary may approach if 
that would be of assistance and you may proceed, Mr. 
Days.

Q. (By Mr. Days) Dr. Francisco, you indicated that 
you have a specialty in the area of wound ballistics. Can



66

you indicate generally the process by which one is, as an 
expert in this field, would go about predicting the wound­
ing capacity of certain types of projectiles? A. Well; the 
features that are most significant in producing the wounds, 
a formula in which the * * *

[262] Q. Did you perform the autopsy yourself? A.
Yes.

Q. Did anyone assist you? A. Yes.
Q. Who assisted you? A. Dr. James Bell and Dr. 

Joseph Zepallo.
Q. So there were three of you who were actually per­

forming the autopsy? A. That’s correct.
Q. You were commenting on the alcohol content ear­

lier and did I understand you to indicate that that was 
probably, or that was more than the normal alcohol con­
tent that you would, than you would expect in a normal
person ? A. Yes.

Q. What would be the normal content or— A. Well, 
theoretically zero and in practical terms certainly less 
than .01.

Q. And .01 is what you found to be in— A. No, .09.
Q. Is that in any way correlated with the system 

used by the Memphis Police Department in determining 
whether a person is under the influence? A. Yes, sir.

Q. Do you know what the standards of the [263] 
Memphis Police Department are with regard to or the 
breakoff point with regard to whether or not one is under 
the influence? A. Well, this is state law, this is predi­
cated on state law which establishes that a level of .10 
is the point of intoxication.

Q. And this level was what? A. .09.
Q. It is just right below? A. Well, it is .01 below, 

right.



67

Q. Of course, you can’t ascertain what the source 
of the alcohol is? A. No.

Q. But presumably it is something that is taken or 
ingested? A. That’s correct.

Q. And you said possibly drinking a beer? A. Well, 
I used beer only as an example, not as an indication that 
it was, in fact, the beverage used.

Q. Could it be whiskey? A. Whiskey, wine, vodka, 
gin, any alcoholic beverage.

Q. You further indicated. Doctor, that the wound to 
the head was entered from the right * * ♦

TESTIMONY OF VELTON J. ROGERS

[655] VELTON J. ROGERS,''

having first been duly sworn, was examined and testified 
as follows:

DIRECT EXAMINATION 
BY MR. KLEIN:
Q. State your name, please. A. Velton J. Rogers. 
Q. Where do you live, Mr. Rogers? A. 3464 Felton 

Road.
Q. Is that in Memphis? A. Memphis.
Q. What is your occupation, please, sir? A. Pro­

bation officer.
Q. With whom are you associated as a probation of­

ficer? A. Memphis and Shelby County Juvenile Court.
Q. Are you here today in answer to a subpoena of 

which I asked you to bring certain records with you? A. 
Yes, sir.



68

Q. All right, and do you have those records with you, 
please, sir? A. Yes, sir.

Q. All right. And who do those records pertain 
to, Mr. Rogers?

[657] A. Yes, sir.
Q. All right. What matter did you handle personally 

involving Edward Eugene Garner? A. I handled a matter 
concerning burglary back in really November of ’71, and 
violation of curfew that occurred in October ’73 and a 
burglary that occurred July ’74.

Q. July of ’74? A. Yes, sir.
Q. All right. Tell us about the first burglary, what 

brought, what are the facts surrounding that or how did it 
come to your attention? A. He was arrested as a result 
of he and several other younger boys, he was twelve at 
the time, going into the Porter Leath Home at 850 North 
Manassas. They placed a charge of burglary in the third 
degree against him. Seems like they went through a 
window and went into the place. It wasn’t an actual 
break-in as such, but it was an illegal entry.

Q. I see. Did you handle that matter? A. Yes, sir.
Q. Who did you deal with in the family, do you re­

member? A. Edward and his father, I’m pretty sure.
Q. Go ahead, if you need to refer to something [658] 

A. He and his father.
Q. All right. What was the outcome or disposition 

of that matter? A. He was placed on probation.
Q. All right. Was he placed in the custody of his 

parents? A. Yes, sir.
Q. Any instructions given with regard to or any 

terms of probation? A. Well, I was—there should be. I 
can’t verify that because we have an auxiliary probation 
service and we refer this—this ends my dealing with them 
once he’s placed on probation. I make referral to the



69

auxiliary service and they set the instructions. We have 
the rules or form.

Q. What did the rule generally cover, times when 
curfews or limited activities anyway? A. Yes, sir, they 
say a child shouldn’t be, we leave blank the time and the 
supervising probation officer from the auxiliary services 
is the one who sets the time and says that he shouldn’t 
be out past whatever time they put in the blank without 
being with the parent or guardian or some responsible per­
son whom the parent approves.

Q. All right. What was the next, I think you [659] 
mentioned curfew violation, is that correct? A. Yes, sir.

Q. What did that involve? A. Being out past mid­
night. It was a matter for my understanding in talking 
to him where he had permission to work at a close-by like 
sundry store and while some incident occurred there on 
the street and he went out to look at it and while the 
officers were there they saw that he was quite young and 
talked to him, and being out past midnight they issued 
him—well, I guess they arrested him.

Q. All right. What was the disposition of that? A. 
That was adjusted, non-judicial after warning and coun­
seling.

Q. All right. Was he again placed in the custody of 
his parents? A. Yes, sir, he was not at the time under 
supervision and we didn’t, because he had served the first 
period of probation and we didn’t reactivate his probation.

Q. And what is the next event that you have re­
corded? A. Burglary, second degree.

Q. Burglary, second degree? A. Yes, sir.
[660] Q. What is the date of that? A. Of June 

30, 1974.
Q. June 30, 1974. All right. What does that in­

volve? A. That had to do with an incident—well, the 
parent brought this to the attention of the police officers.



70

Seemingly he had gone into a close neighbors home and 
obtained some money in a jar, I think it was in a jar, and 
the family found out about it and called the police to 
rectify the matter. They didn’t arrest him. At that time 
they issued him a juvenile summons and he was later 
summoned into the court.

Q. All right. And what was the disposition of that? 
A. He was given a suspended sentence, commitment as 
we call it, and placed on probation.

Q. Well, what was the commitment, in other words, 
how does the sentence read? A. When read the petition 
sustained committed to the Tennessee Department of Cor­
rections, commitment suspended and placed on probation.

Q. All right. And what does that probation mean. 
A. It means that he’s to stay out of trouble ♦ * ♦

* « «

* * ♦ [664] as they could have been had he been 
home and that the mother was not able to provide the 
supervision that they needed at the time.

MR. KLEIN: That’s all I have.
THE COURT: You may examine.
MR. DAYS: All right. Your Honor.

CROSS EXAMINATION

BY MR. DAYS:
Q. Mr. Rogers, I believe you indicated that at the 

time that Edward Eugene Garner was brought to the 
attention of the juvenile authorities for a curfew violation 
that he received a certain type of counseling, is that right? 
A. Yes, sir.

Q. Would you indicate briefly what the nature of 
that counseling was? A. Basically it is a warning, this 
was a little different from the normal violation of curfew.



71

Informal circumstances you just find a kid out, but with 
the, after talking to him and with the parents and finding 
that there was justification for him being there and that 
they had this set up where the owner of this place would 
deliver him home, and seemingly he was under supervision, 
so we just [665] talked about it and made sure that it 
wouldn’t happen any more. And we left, you know, we 
didn’t feel that punishment or any type of supervision 
probably was necessary at that time.

Q. Did you have occasion to discuss with Edward 
the circumstances of the first charge? The burglary at 
North Manassas? A. Yes, sir.

Q. And do you recall what he indicated or based 
upon your discussion with Edward did you come to any 
conclusion about the circumstances surrounding this par­
ticular incident? A. Yes, sir. Now, in referring back 
to the note I made that Everett stated that he, Michael 
Eason and Jeffery Beckton did break into the Porter 
Death Home. They were playing in the yard and decided 
to go through a window. They ran when the police came. 
They had been into the building prior to on a prior date, 
this was basically what they told me.

Q. And do you know what the age of the other 
boys’ were at the time, were they older or younger? A. 
They were fairly close the same age. One of them seemed 
to be younger because I can remember making an ad­
justment in the case due to his age or something, about 
ten years old or something.



72

TESTIMONY OF JAY W. HUBBARD

[577] JAY W. HUBBARD,

having first been duly sworn, was examined and testified 
as follows:

DIRECT EXAMINATION

BY MR. KLEIN:
Q. State your name, please, sir? A. Jay W. Hub­

bard.
Q. How do you spell your first name? A. J-a-y.
Q. And you reside where, sir? A. Currently in San 

Juan Capistrano, California.
Q. What is your occupation? A. Western regional 

manager for Guardsmark, Incorporated.
Q. All right, sir. Were you formerly the director of 

police for the city of Memphis, Tennessee? A. I was.
MR. DAYS: Excuse me, may I ask that the witness

speak up, I have difficulty hearing.
THE COURT: If you will, please.
THE WITNESS: Yes.
Q. (By Mr. Klein) And how long did you hold the 

position as director? A. Almost exactly two and a half 
years.

[593] A. Yes, they were.
Q. All right. Are you familiar with a particular in­

cident involving officer Hymon? A. I am.
Q. Do you know of your own knowledge whether 

that matter was presented to the Shelby County Grand 
Jury? A. Yes.

Q. Do you know the results of the Shelby County 
Grand Jury’s deliberations in that case?



73

MR. DAYS: Objection, Your Honor, until the counsel
is able to elicit from the witness the basis of his personal 
knowledge.

THE COURT: I’m going to overrule the objection.
As I understand the question he asked him to his personal 
knowledge and the witness responded, yes.

Q. (By Mr. Klein) What was the outcome of the 
grand jury investigation? A. No true bill.

MR. KLEIN: Your Honor, I know we have been into
this before and it may be objectionable. I will tell the ♦ * *

lie i|c >|! [595] variations, but I think that pertains to 
what extent that is weighed. I think I will overrule the 
objection on the basis of relevancy.

MR. DAYS: Very good.
THE COURT: You may proceed in the other area

and if counsel has objection to any of that line of inquiry. 
I’m sure that I will hear from him.

Q. (By Mr. Klein) All right. Did you review the 
matter, the firearms review board findings in connection 
with officer Hymon? A. I did—

Q. And what were the conclusions by the board? 
A. The conclusion was that the use of deadly force was 
justified.

Q. All right, sir. Do you know whether any action 
was taken against Officer Hymon as a result of the use 
of deadly force? A. There was no punitive action. The 
customary relief from duties pending outcome of the in­
vestigation. Our officers sometimes think that is punitive, 
but it has no such purpose, there was no action taken.



74

TESTIMONY OF LESLIE BURTON WRIGHT
* « »

[672] LESLIE BURTON WRIGHT,

having first been duly sworn, was examined and testified 
as follows:

DIRECT EXAMINATION 

BY MR. KLEIN:
Q. State your name, please, sir. A. Leslie B. Wright. 
Q. How do you speU your last name? A. W-r-i-g-h-t. 
Q. Where do you live, sir. A. 1221 Abernathy.
Q. Is that in Memphis? A. Yes, sir.
Q. What is your occupation? A. A policeman with 

the Memphis Police Department.
Q. How long have you been with the Memphis Police 

Department? A. Two years and ten months.
Q. All right, sir. Did you go through the academy, 

the training academy for new officers? A. Yes, sir.
Q. Do you remember what session you went through? 

A. The 37th.
Q. The 37th session?

* * * [674] certain wards? A. We were assigned to 
a particular ward that night.

Q. All right. What is a ward, is that a geographical— 
A. Yeah, just an imaginary area with imaginary bound­
aries which you stay inside and answer calls in that 
ward.

Q. And were you all in a patrol car at that time? 
A. Yes, sir.

Q. Now, what ward were you in on that evening? 
A. We were assigned to the ward designated 128.



75

Q. 128, all right. Do you recall getting a call with 
regard to a breakin at 737 Vollentine that evening? A. 
Yes, sir, it was a prowler inside call.

Q. And who received the call? A. I did.
Q. Is that the way that it came over to you? A. Yes, 

sir, it was put out by the dispatcher as a prowler inside. 
Q. What did that indicate to you?

[677] Q. All right. Now, is it accepted practice for 
you to go outside of your ward? A. Well, that is a 
pretty busy area of town and when a car is out of ser­
vice in an area they usually send the next closest available 
car to answer calls in another ward, particularly if it is 
a more serious type call, and prowler inside is a fairly 
serious type call.

Q. Does the call come out to anyone on the network 
or comes directly to a particular car? A. At that time 
on the radio system we were using, all of the cars running 
in the north precinct area would have heard the call, 
but we were the only ones who would have acknowledged 
it, and our call letters were 128, so it comes specifically 
for us to respond.

Q. Did you all acknowledge? A. Yes.
Q. All right. Then you proceeded on, you finally 

made it to Vollentine? A. Yes, sir.
Q. And where did you go then? A. We stopped 

right in front of 737, in front of the street and there was 
a female black standing in front of that house, either on 
the[678] porch or on the ground. She was in her night— 
housecoat or nightgown, it wasn’t normal street wear, I 
remember, and she was pointing to the house next door 
which we found later was 739 Vollentine, and she was 
moving her mouth but both of us were inside the car, 
and, of course, the engine was running and couldn’t hear



76

anything. So my partner opened the door and got out 
and went over to her and she was still pointing and she 
wasn’t saying anything. Finally, I was leaning over in 
the street like this trying to hear what she was saying 
through the open door. She said, “Somebody is breaking 
in there right now.” And she is still pointing to 739. So 
my partner comes back to the car and gets his flashlight 
and says, “Show us on the scene.” I hadn’t advised the 
dispatcher on the radio that we had arrived on the scene, 
which is the proper procedure that you are supposed to 
do, let him know that you have gotten to the scene. So 
he gets his flashlight, he says, “Show us on the scene” 
and gets out of the car, actually just leaned in and picked 
it up and went down toward the south of 739 along the 
west side of that house, and I got on the mike and turned, 
just turned the car into the curb to where it was almost, 
or almost in front [679] of 739 and advised the dispatcher 
once that we were on the scene and another transmission 
from some other car, so we didn’t acknowledge it, so I 
advised him again, “ 128 at the scene.” And he acknowl­
edged it, so I just opened the door and got my flashlight 
and I went around the northeast, to the northeast corner 
of the house, 739— ŷeah, it is northeast, and I was shining 
my flashlight and looking along the, it was the fence along 
the left side of it, it was a driveway, as I remember it 
was all concrete and I was looking along the fence to 
see if there were any breaks and down to an outbuilding 
there that was at the end of the fence, I thought it was 
a garage at first, but I later found out it was too small 
to be a garage. And I heard the screen door slam, sounded 
like a screen, wooden screen door from the back of the 
house and I heard my partner yell, “Halt” and then 
there was a short pause, a couple of seconds, and I heard 
one shot. And at that time I ran to the back corner and 
there hadn’t been any verbal communication after the



77

shot, I didn’t know whether someone had fired at my 
partner or he had fired at someone else. So I came around 
the corner of the house slowly shining my flashlight.

[680] Q. Which corner of the house are you talking 
about? A. Now, that is the southeast, that is the back 
corner.

Q. All right. Let’s look at this, if you would, please, 
sir, and this has been marked Exhibit 6. It has already 
been introduced into evidence. And ask you if you will 
just assume that this is the house at 739 with the back 
yard, and what I’m pointing to now has been referred to 
as a chain link fence five and a half to six feet tall with 
the direction, the front of the house faces north, the back 
of the house faces south, and if you would point out which 
side of the house that you went down and where you 
were when you heard the shot? A. Let’s see. I pulled 
the car in here and I got out of the door and I ran around, 
there is a picket fence that is not shown. I ran around 
it, come down to the right here, when the, when I heard 
the screen door slam and my partner yelled, “Halt” , and 
as soon as I heard that and my partner yelled, “Halt” , I 
stopped momentarily and then I heard the shot and then 
I ran around, there is a window air conditioning unit that 
stuck out here, and I ran around it, come down to this 
comer right here and came around this [681] corner 
slowly shining my flashlight in this direction.

Q. You say “this direction” , you are talking about 
which— A. That is going to be west, yeah, west over 
in this direction to try and pick up my partner. My 
partner had his flashlight out, too, and his pistol drawn, 
and I had my pistol drawn, and he pointed out with his 
flashlight and said that “He’s on the fence.” And I swung 
my light along the fence here until I come to the subject 
who was draped over this chain link fence right here, 
right just the edge of this small outbuilding. He was



78

draped over, torso, arms and head draped over on the 
south side of this chain link fence and legs draped over 
the north side right in the bend of the body just where 
the hips join the abdomen, and there was a large volume 
of blood coming from the head of the subject in a steady 
stream about three quarters of an inch in diameter. Really 
the most I had ever seen. And I was standing about here, 
and I took a couple of steps closer and I said, I said, I better 
go get an ambulance. And I believe my partner said, 
“Yeah, it looks like he’s hurt pretty bad.” He was moving 
toward the subject, so I ran back around the front of 
the house to the front of the car. We weren’t * ♦ *

[694] Q. For the cameras taking the pictures. Would 
you indicate again for the record and mark on exhibit 6 
where you were when you heard the shot? A. Yes.

Q. Would you take this pen and mark it on exhibit 6 
and put your initials next to it? A. Right here.

Q. All right. So you were at the northeast corner of 
the house? A. Yes, sir.

Q. And was it your testimony on direct that you 
heard your partner shout “Halt” at that point? A. The 
first thing that I remember hearing was the screen door 
slam and then my partner yelled “Halt” .

Q. And you were at that same position when you 
heard your partner yell “Halt” ? A. Yes, sir.

Q. I believe you indicated in your direct testimony 
that there was no verbal communication between you and 
your partner until after the shot, is that correct? A. Yes, 
sir, on my part.

Q. And I believe you testified that your partner at 
some point indicated that he’s on the [695] A. Yes, sir.

Q. Did that occur before or after the shot? A. After 
the shot.



79

Q. Now, when you got to the back of the house 
after the shot, were you able to see your partner? A. Yes, 
sir, after shining the flashlight.

Q. Did you see your partner after you got back there 
move from his position to where the body was located? 
A. I didn’t see him move. He was standing still as I 
remember when I came back to the yard and he said he’s 
on the fence and indicated with his flashlight the direction, 
and as I was scanning toward the fence and caught sight 
of the body and moved toward the subject, my partner 
must have been moving as I was doing that because I 
didn’t actually see him move, no.

Can you estimate how long it took your partner to get 
from where he was to the location of the body? Just try 
to give your best estimate? A. Three or four seconds.

Q. All right. Did you have any involvement of taking 
the body off the fence? A. No, sir.

TESTIMONY OF F. J. WHEELER

[697] F. J. WHEELER,

having first been duly sworn, was examined and testified 
as follows:

DIRECT EXAMINATION 
BY MR. KLEIN:
Q. State your name, please, sir. A. F. J. Wheeler. 
Q. And you are employed by whom, sir? A. Mem­

phis Police Department.
Q. And what is your rank, please? A. It is sergeant. 
Q. And how long have you been with the Memphis 

Police Department? A. Be 14 years this coming October.



80

Q. O.K. Are you assigned to any particular depart­
ment or division? A. To the homicide division.

Q. And how long have you been assigned to the 
homicide division? A. A little over three years now.

Q. All right. Back on October 3, 1974, were you as­
signed to the homicide division? A. Yes, sir, I was.

Q. All right, sir. Are you familiar with the incident 
that involved a shooting out at 739 * * *

[701] MR. BAILEY: What does to an effect— ob­
ject, the witness said he doesn’t know what Mr. Garner 
said and Mr. Klein I suppose is asking him for paraphras­
ing his version of what the witness said by saying to the 
effect, and I object to it.

THE COURT: We will treat the objection this way,
as to what the witness’s impression may have been, the 
objection may be well taken. If the witness is recalling 
or trying to recall to the best of his recollection what was 
said, though it may or may not be verbatim, he may be 
asked but if all that he has is a general impression, I think 
the objection may be well taken in that regard.

Q. All right. Do you have a recollection of what 
in substance was said? A. Only one thing. He did state 
that he did not want to go—he did want his son to go 
and that he had been expecting something of this nature 
to happen. As far as his exact words I can’t remember, 
but it was to the effect that we have been [702] expect­
ing something like this to have happened.

MR. KLEIN: That’s all I have.
THE COURT: You may cross examine.



81

CROSS EXAMINATION
BY MR. BAILEY:
Q. Sgt. Wheeler, you investigated many homicides 

since this one, have you not? A. Yes, sir.
Q. And I take it that your recollection actually is a 

bit fuzzy as to what Mr. Garner said, isn’t it? A. He was 
upset, Mr. Bailey, but, no, sir, I do know to the effect 
that they had been expecting something like this to happen.

Q. Well, he was in a state of shock when you told 
him— A. Well, I don’t say shock, but he was visibly 
upset.

Q. And he was crying? A. Yes, sir, he was.
MR. BAILEY: I have no further questions.
THE COURT: Anything further?
MR. KLEIN: No, sir.
THE COURT: You may step down.
(Witness excused.)

(Caption Omitted) 
AFFIDAVIT

STATE OF NEW YORK )
)SS.:

COUNTY OF NEW YORK )

WILLIAM R. BRACEY, being duly sworn, deposes and 
says:

1. I am a United States citizen and a resident of New 
York State. I am the Chief of Patrol in the New York 
City Police Department. I supervise the Patrol Service 
Bureau and command 17,500 officers, a force that com­
prises 80% of the personnel within the Department. Pa­
trol Services handles all types of police services except



82

those calling for the use of Detectives. I am the fourth 
ranking official within the New York City Police De­
partment and exercise direct authority over all officers 
of Assistant Chief and below.

2. I have worked as a police officer for thirty-four 
years. I began my career in 1946, working as an officer 
in Bedford-Stuyvesant, Brooklyn. After eight years I was 
promoted to Sergeant and moved to the Borough of Queens, 
then a predominantly white neighborhood. I was the first 
black Police Sergeant ever assigned to Queens. In 1959 I 
was promoted to Lieutenant and assigned as a desk officer 
in a Precinct on the east side of Manhattan, where I worked 
for eleven years. In 1970 I became a Captain and was 
moved to the Central Harlem Precinct. Two years later 
I was promoted to the rank of Deputy Inspector and the 
following year, in 1973, was named an Inspector and sent 
to Brownsville in the Borough of Brooklyn. Later in 1973 
I was promoted to Deputy Chief, becoming second in com­
mand of the police forces in Brooklyn, a force of 2500 of­
ficers charged with serving a population of about two 
million. I was elevated to Assistant Chief and became 
the borough Commander. Finally, on March 23, 1979, I 
was appointed to my present post as Chief of Patrol.

3. During my career I have belonged to a numbei" of 
professional law enforcement organizations. I was one of 
the founders of NOBLE, the National Organization of 
Black Law Enforcement Executives, and for three years 
was its recording and corresponding Secretary. Presently 
I serve as NOBLE’s Sergeant-at-Arms.

I am also a member of the lACP, the International 
Association of Chiefs of Police, serve on its Committee on 
Arson, and have addressed lACP workshops on the use of 
deadly force. The Guardians Association, an organization 
of black policemen, and the Policeman’s Benevolent As­



83

sociation are among the other professional groups with 
which I am affiliated.

4. I graduated from Alexander Hamilton High School 
in Brooklyn, New York. I have taken a wide variety of 
courses at Baruch College and John Jay College and have 
earned the equivalent of fifty-eight college credits.

5. With regard to the use of deadly force, the New 
York Police Department policy since 1973 has allowed an 
officer to fire his weapon only if he feels that his life or 
the life of another person is in danger. Our policy also 
dictates that there be no firing at moving vehicles, no firing 
of warning shots and no shooting of animals. These rules 
are strictly enforced with mitigating circumstances given 
appropriate weight. What we emphasize, however, is that 
officers seek alternatives to using their weapons. We 
urge them to seek cover, to call for assistance and to use 
the full range of their training and sophisticated equip­
ment to apprehend suspects without loss of life.

6. Guidelines are very important. This cannot be 
stressed enough. But reduction in firearm discharges can­
not be accomplished unless officers are made to obey strict 
guidelines. The key to actual influence exercised by regu­
lations is the support these regulations receive from the 
top of the police bureaucracy. The police leadership must 
make it clear that regulations are to be followed and that 
officers who violate regulations will be disciplined. Other­
wise, it becomes quickly known that strict-sounding regula­
tions are “just for the record” and have no real bite. This 
is not to say that police officers should constantly be 
second-guessed. Their judgments, viewed in the light of 
Department guidelines, must be viewed realistically. But 
it is important that those in authority within police depart­
ments enforce deadly-force regulations and that they stress 
the need to use alternatives to firepower that will decrease 
the risk of unnecessary injuries and deaths.



84

7. The tightening of the deadly-force regulations has 
had a considerable impact. The reforms instituted in 1973 
have reduced firearms discharges by at least 30%. (See 
Exhibit A.) This reduction in unnecessary use of firearms 
has not hampered the New York Police Department’s pur­
suit of effective law enforcement. Nor have the tightened 
regulations threatened the safety of our officers. In fact, 
just the opposite is true; regulations have enhanced police 
safety. Four officers were killed last year, a year which 
saw the fewest firearm discharges in the history of the 
New York police. In contrast, eleven policemen died in 
1972, the year before the current policy went into effect. 
Moreover, the rates of assaults decreased in the wake of 
the tighter deadly-force guidelines.

8. One reason why we think that restrictive deadly- 
force policies enhance the safety of our officers is that they 
become more aware of the need to act with prudence and 
to employ tactical procedures which minimize the situa­
tions where officers shoot or are shot at. Strict rules dis­
couraged sloppy and unnecessary handling of weapons 
which pose a threat not only to civilians but to officers as 
well. Furthermore, as noted previously, there is no indi­
cation that police adherence to regulations curbing the use 
of deadly-force has encouraged a higher rate of attacks 
upon officers. Here it needs to be emphasized that the 
rationale behind strict policies it not to restrict necessary 
resort to firearms, but only unnecessary reliance upon 
deadly-force.

9. Evaluating an officer’s resort to deadly-force is 
a complicated matter. Officers should be judged by a 
different standard than that applied to the conduct of 
civilians. On the one hand, this standard should be more 
strict since the officer is a professional trained to act 
with prudence and due consideration of alternatives even



85

under pressure. On the other hand, because an officer 
has been trained and is the person who actually makes 
these difficult decisions under pressure, I am loathe to 
second-guess him unless it is obvious that his judgment 
was poor.

10. Training is a key phase in our effort to reduce 
unnecessary resort to deadly force. In the first two 
years after we tightened our deadly-force regulations, 
all the training units in all the boroughs of the city devoted 
about an hour a day to discussion and questions about 
the new rules. We made sure that these discussions were 
led by officers of high rank. Captains or above. This 
campaign to thoroughly familiarize Department personnel 
with the changes in policy and the reasons behind these 
changes has undoubtedly exercised a positive influence. 
More important, though, than these initial efforts have 
been our consistent and continuing efforts to train officers 
in such a way that they will utilize firearms only as 
a last resort. The Department provides officers with ex­
tensive shooting practice at the range so that if they are 
forced to shoot they can do so effectively. But the De­
partment also uses classroom discussion, film, and simula­
tion training. By acquainting an officer as fully as possible 
with what he can expect on the streets, we hope to allay 
the jumpiness that sometimes causes errors in judgment. 
Often, for instance, ill-trained officers will exaggerate the 
danger posed by particular suspects. We try to train our 
officers so that they can quickly come to a realistic ap­
praisal of the degree of danger they face in a particular 
situation. Even more importantly, we stress throughout 
our training process that good police work includes doing 
everything possible to heighten safety and preserve life. 
What we try to promote is not the macho image of the 
cop but the need for highly professional law enforcement.



86

11. Disciplinary procedures comprise another impor­
tant aspect of our effort to discourage unnecessary resort 
to firearms. Anytime an officer discharges his weapon— 
whether or not it results in injury—he is required to 
report the incident to his commanding officer. In all cases 
our process of investigation and discipline proceeds as fol­
lows: A Duty Captain investigates a report of firearms
discharge. He does this immediately for experience has 
taught us the necessity of eliciting testimony and collect­
ing evidence while the incident is still “hot.” This Captain 
files his report of the initial investigation with the Pre­
cinct Commander and the Chief of Patrol. The Precinct 
Commander is required to submit a report of his own 
investigation of the incident within 72 hours if possible. 
Periodically reports of firearms discharge incidents are 
reviewed by a Borough Firearm Discharge Review Board, 
a board comprised of a Borough Commander, an Inspector, 
a Captain and a line police officer. This group makes 
its own recommendation regarding the disposition of a 
case and passes on its evaluation to the Headquarters Re­
view Board, chaired by the Chief of Operations. The 
Headquarters Review Board makes the final determination 
regarding the disposition of an incident. In those instances 
where the firearms discharge is not within the guidelines, 
disciplinary measures include official censure, instruction 
of the guidelines, retraining, change of assignment, loss 
of pay for a certain amount of time, suspension, or, upon 
occasion, discharge.

12. It requires special effort to make a disciplinary 
process operate with fairness and integrity. Police officers 
are naturally going to empathize with other police officers, 
for we have all faced difficult situations when it would 
have been easy to have made the wrong sort of decision 
about using our weapons. That is why I usually find 
it difficult to second-guess officers without good reason.



87

There is, however, no excuse to disregard restrictive pol­
icies and their enforcement.

13. The best way to insure the integrity of the dis­
ciplinary process is by leadership from above. When line 
officers see their superiors are serious about deadly-force 
regulations they will tend to observe these regulations 
since indifference might pose a threat to present assign­
ment and career advancement. This leads me to a final 
point concerning intra-Department discipline: the neces­
sity for official criticism of unnecessary recourse to fire­
arms. Police officers take pride in their performance and 
are sensitive to criticism from their superiors and col­
leagues.

14. From my experience it seems that shooting a 
fleeing felony suspect is mostly related to an officer’s 
urge to punish a criminal. This instinct for punishment is 
especially strong when the suspect is thought to have 
just committed a violent crime. Much of the resistance 
we faced when the Department tightened its deadly-force 
regulations was grounded in the feeling that criminals 
deserved no chance of escaping punishment and that the 
punishment of being shot when fleeing from a police 
officer was not excessive.

15. It takes time, patience and constant effort to 
nudge old attitudes into line with new, professional, more 
restrictive deadly-force policies. It can be accomplished.

16. Turning to the case at hand, the situation in 
Memphis, Tennessee, it appears to me that a definite mes­
sage was transmitted in 1972-1973 when the police de­
partment there reiterated its policy of shooting “to stop” 
and at the same time introduced the use of dum-dum bul­
lets. The message transmitted to line officers would seem 
to suggest the department’s support of firearms use. If



88

dum-dum bullets had always been used, the fact that they 
are deadlier that other more conventional ammunition 
would not be so significant. Their importance in the 
Memphis situation is likely to have stemmed from their 
newness, the fact that they were introduced seemingly 
in tandem with the renewed emphasis on shooting to stop.

17. Unlike Memphis, the New York City police de­
partment does not use dum-dum bullets. We believe that 
conventional .38 caliber ammunition is potent enough for 
our needs. We do, however, believe that when it is neces­
sary to shoot, an officer’s duty is to stop immediately 
and fully the aggression of the suspect.

18. In terms of training, I think that heavy reliance
upon films like “Shoot, Don’t Shoot” poses some problems. 
In the first place, such films present some unrealistic 
situations which ill prepares officers for what they will 
face at their posts. More importantly, such films tend to 
leave some officers far too jumpy. Rather than reliance 
upon films, we emphasize actual simulation of bank rob­
beries and other violent police-criminal confrontations. 
While we provide intensive training in firearms use, we 
stress seeking alternatives to firearms: taking defensive
or holding positions, asking for assistance and other tactical 
options.

19. With reference to the statistics suggesting that 
50.4% of the police shootings in Memphis involve those 
suspected of crimes against property, I can only say that 
such a trend seems wrong and excessive, particularly if 
one believes in the doctrine of letting the punishment fit 
the crime. Teamwork, effective use of communications 
systems and good detective work is more than adequate 
to apprehend the vast majority of fleeing suspects no 
matter what the crime.



89

20. I react negatively to the policies of the Memphis 
police Internal Affairs Board insofar as those policies in­
clude subjecting those who complain of police misconduct 
to polygraph tests. Making the complainant take a poly­
graph test immediately while exempting the officer com­
plained of is an unjustified double standard. This practice 
is bound to discourage many citizen complaints.

21. It is very difficult to comment on the actions 
the police officers took in the Garner case since I am not 
intimately and thoroughly familiar with the facts and total 
context of the tragedy. I can say, however, that in a 
similar situation as that faced by the officer in question, 
several alternatives should immediately spring to mind 
that could avoid resort to deadly-force. Using a radio to 
summon assistance is nearly always correct tactically. 
With a quick call for assistance, a fleeing suspect can be 
eventually caught even if he does manage to escape tem­
porarily. Or if the suspect is unarmed, moving up on 
him quickly with a drawn nightstick and an air of de­
termination will do wonders toward halting a suspect 
thinking about fleeing. The point is that in most cases 
there are alternatives to deadly-force if officers are ex­
pected and trained to reach for these options.

/s /  William R. Bracey

Sworn to before me this 20th day of June, 1980.

/s /  Ivalina R. Passe
Notary Public, State of 

New York 
No. 41-4526688 
Qualified in Queens County

Commission Expires March 30,1982.



90

EXHIBIT A

Incidents of Firearm Discharges By New 
York City Police Officers 1971 to the

Present

January - June

1971 630
1972 803
1973 556
1974 470
1975 439
1976 374
1977 414
1978 372
1979 364
1980 160

(Caption Omitted)

AFFIDAVIT

STATE OF NEW YORK )
) SS.:

COUNTY OF NEW YORK )

LAWRENCE W. SHERMAN, being duly sworn, de­
poses and says:

1. I am a United States citizen and a resident of Wash­
ington, D.C.

2. I hold a Bachelor of Arts Degree from Denison 
University, a Master of Arts degree from the University of 
Chicago, and a Ph.D. degree from Yale University.

3. I am presently Director of Research at the Police 
Foundation in Washington, D.C. Other posts I have held



91

include the following: Executive Director, National Ad­
visory Commission on Higher Education for Police Of­
ficers; Director, Project on Homicide by Police Officers, 
Criminal Justice Research Center, Albany, New York; 
Consultant to Civil Rights Division, United States De­
partment of Justice; Consultant to Solicitor General of 
Canada. I have also served as a consultant to several 
metropolitan police departments including those in New 
York City, Dayton and Kansas City. I have served as an 
expert witness in four prior court cases involving police 
use of firearms and have spent several thousand hours 
riding in patrol cars in ten American cities and four 
European cities observing police decide whether or not 
to resort to firearms. Finally, I have written extensively 
in the area of police administration and police behavior. 
My publications include Scandal and Reform: Controlling 
Police Corruption (University of California Press, 1978); 
The Quality of Police Education (Jossey Bass Publishers, 
1978) with National Advisory Commission on Higher Edu­
cation for Police Officers; Team Policing (Police Founda­
tion, 1973); “Measuring Homicide by Police Officers,” 70 
Journal of Criminal Law and Criminology 546 (1979) with 
Robert H. Langworthy; “Execution Without Trial: Police 
Homicide and the Constitution,” 33 Vanderbilt Law Re­
view 71. In addition to these publications I have written 
about twenty-five other articles or chapters in books, and 
serve as the Criminal Law Bulletin’s Contributing Editor 
for Law Enforcement.

4. Guidelines are extremely important. The best 
available empirical evidence clearly indicates that even 
minor changes in the direction of restricting firearms use 
will reduce the number of citizens shot. These changes in 
regulations must, however, be supported by strict enforce­
ment if they are to become effective.



92

5. Extensive statistical studies by James J. Fyfe and 
others indicate that reforms restricting police use of deadly- 
force reduce the numbers of citizens shot without causing 
corresponding increases in crime or assaults upon police 
officers (see Exhibit A ). My own research has verified 
Fyfe’s conclusions. In Kansas City and Atlanta, changes in 
police deadly-force regulations have substantially decreased 
the number of citizens wounded or killed by police fire­
arms. At the same time, neither of these cities has ex­
perienced an increase in crime as a result of more restric­
tive policies. In Atlanta, moreover, there was no increase 
in assaults against officers. Data on the number of police 
assaults following the change of regulations in Kansas 
City is not available. But in New York, the number of 
assaults against police decreased substantially after policy 
reforms tightened the rules governing police use of deadly 
force.

6. Even more important than regulations however, is 
strict enforcement of rules curbing unnecessary resort to 
deadly force by police officers. If enforcement is strict, 
strong guidelines will quickly exercise significant influence 
on the conduct of officers. The message will go out that 
the Department is serious about its deadly-force rules. 
If enforcement is lax, the opposite message will be trans­
mitted, no matter what the regulations themselves ac­
tually prescribe as required conduct. The point, then, is 
that the tone of enforcement and the attitude of a police 
administration are equally as important as formal rules in 
the successful implementation of restrictive deadly force 
policies. Thus, the cities that have been most effective 
in curbing police resort to deadly force have been those 
where the ranking officers have created an atmosphere 
of administration sypmathetic to restrictive policies.



93

7. One method of enforcing strict discipline with 
regard to the use of firearms, is for police departments 
to investigate every single firearms discharge whether or 
not the incident involves injury or death. This process 
of extensive review is used in New York City (and At­
lanta) and has probably played a significant role in that 
city’s effective campaign against unnecessary resort to 
deadly force by the police,

8. Training is also an important factor in reducing 
police use of firearms. Based upon my experience with 
firearms decision training in New York City, the most ef­
fective training techniques involve simulation drills which 
accustom officers to processing the ambiguous situations 
they are likely to encounter in the course of their work. 
Drills where officers actually have people jump out at 
them suddenly or where officers have to quickly appraise 
whether someone is a suspect or a victim add to the readi­
ness of an officer to face his duties with added poise and 
a disciplined readiness to use alternatives to deadly force.

9. In my view, the Memphis Police Department’s pol­
icy regulating the use of deadly force is deficient in several 
important respects. The policy includes no provisions con­
cerning the protection of bystanders. In contrast, both 
the Model Penal Code and the 1977 President’s Commis­
sion on Law Enforcement and the Administration of Jus­
tice recommend that use of deadly-force be prohibited 
when bystanders might be injured. More importantly, the 
Memphis policy insufficiently stresses the need of police 
officers to use alternatives to deadly-force in apprehend­
ing fleeing felons. What these significant omissions in­
dicate is a glaring looseness in policy regarding police 
resort to firearms. It is clearly inappropriate, for instance, 
for police guidelines to allow officers to use deadly force 
against fleeing property crime suspects when convicted



94

criminals of these same violations are exempt from the 
death penalty and most often are sentenced to jail terms 
far less severe than life imprisonment. When property 
crimes were punishable by the death penalty, police use 
of deadly force against property violators at least rested 
upon an internal logic. Now, however, that logic has been 
shattered by charges in our conception of appropriate pun­
ishments. Under modern conditions, then, regulations al­
lowing force to be used against fleeing suspects of property 
crimes is a dangerous anachronism.

/s / Lawrence W. Sherman

Dated: June 20, 1980

Sworn to and subscribed before me this 20 day of 
June, 1980.

/s /  (Illegible)
Notary Public

My Commission Expires December 15, 1984

ABSTRACT

James J. Fyfe, Shots Fired: An Examination of New
York City Police Police Firearms Discharges. (Ph.D. dis­
sertation, S.U.N.Y., Albany) Ann Arbor, Michigan: Uni­
versity Microfilms, Internaitonal, (1978).

This study examines extreme police-citizen violence, 
focusing primarily on police firearms discharges. Its major 
data sources include New York City Police Department 
records of all incidents in which members of that agency 
reported discharging their firearms and/or were subjects 
of “ serious” assaults (e.g., assaults with deadly weapons; 
assaults which resulted in serious officer injury or death) 
during the period January 1, 1971-December 31, 1975. Nu­
merically, these data include 3573 such incidents involving



4904 officers; 2926 of these incidents involve police shoot­
ing; 3827 officers reported firing their weapons.

These reports, supplemented by various New York 
City Police personnel records, were converted to computer 
mode and subjected to analyses directed at three major 
objectives:

1. Describing the Phenomenon: several hypotheses
concerning the circumstances and participants in police 
shootings and other extreme violence were formulated and 
tested. In addition, the study sought (successfully) to 
derive empirical shooting incident, officer and opponent 
typologies. Finally, the study presents the marginal fre­
quencies of several variables related to shooting incidents 
and officer shooters.

2. Analyzing the Effects of Direct Organizational In­
terventions upon Police Shooting Discretion: in mid-1972 
the New York City Police Department promulgated ad­
ministrative shooting guidelines far narrower than the for­
merly operative statutory limitations. Accompanying 
these guidelines were provisions for internal administrative 
review and adjudication of the actions of police shooters. 
Several hypotheses relevant to the effects of these inter­
ventions upon the frequency and nature of police shootings 
were formulated and tested.

3. Analyzing the Effects of Indirectly Related Organi­
zational Interventions upon Police Shooting: several hy­
potheses concerning the effects of changes in such organi­
zational variables as deployment and enforcement policies, 
formal reward systems and officer “layoffs” upon the fre­
quency and nature of police shootings were formulated 
and tested.

Among the most significant findings of the research 
are the following:

95



96

1. New York City police shootings are predominantly 
an innercity, night-time phenomenon, whose geographic 
distribution is closely associated with those of rates of 
reported criminal homicide and rates of arrest for felonies 
against the person (murder/non-negligent manslaughter, 
felonious assault; forcible rape; robbery).

2. Blacks and Hispanics are disproportionately repre­
sented among police shooting opponents. These dispropor­
tions are closely associated with minority disproportion 
among perpetrators and victims of criminal homicide and 
among those arrested for felonies against the person.

3. New York City police shooting opponent age dis­
tributions apparently do not vary among the races, but 
are closely associated with rates of arrest for felonies 
against the person.

4. Black and Hispanic New York City police officers 
are far more likely to have fired their guns on duty than 
are Whites; this variation is associated with dispropor­
tionate minority officer assignment to the most hazardous 
duties and areas.

5. Black and Hispanic New York City police officers 
are far more likely to have fired their guns off duty 
than are Whites; this variation is apparently associated 
with the disproportionate presence of off-duty minority 
officers in the city’s most hazardous areas.

6.

death.
Suicide is the data set’s modal cause of officer

7. The New York City Police Department’s major 
direct organizational intervention upon police shooting dis­
cretion was accompanied by decreases in the frequencies 
of reported police shootings, shooting opponent injuries 
and deaths and line of duty officer injuries and deaths.



97

8. The New York City Police Department’s major 
direct organizational intervention upon police shooting dis­
cretion was accompanied by changes in the nature of re­
ported police shootings.

9. The New York City Police Department’s major 
direct organizational intervention upon police shooting dis­
cretion was apparently accompanied by changes in the 
reporting behavior of officers anxious to avoid discipline 
for proscribed shootings.

10. A change in New York City Police narcotics en­
forcement policy (from “Buy and Bust” to a program 
of pursuing “Higher-Ups” ) was accompanied by a decrease 
in the frequency of incidents of extreme violence involving 
narcotics officers.

11. The “layoffs” of the New York City Police De­
partment’s 3000 junior officers were not followed by a 
reduction of on-duty shootings, but were accompanied by 
a decrease in the frequency of off-duty shootings.

(Caption Omitted)

AFFIDAVIT

STATE OF NEW YORK )
) SS.:

COUNTY OF NEW YORK )

JAMES J. FYFE, Ph.D., being duly sworn, deposes and 
says: I am a United States citizen and a resident of Vir­
ginia.

1. I am an associate professor at The American Uni­
versity, College of Public Affairs, School of Justice and 
I submit this affidavit on behalf of Cleamtee Garner.



98

2. I was a member of the New York City Police De­
partment for sixteen years, and retired with the rank of 
lieutenant in 1979. During my tenure with the New York 
City Police Department, I performed patrol duties for more 
than eight years in Brooklyn, Queens and Staton Island. 
I also held the following assignments; Chairman, Police 
Academy Police Science Department; Executive Officer, 
Police Academy Management Training Unit; Commanding 
Officer, Police Academy Management Training Unit; 
Coordinator, Executive Development Program; Director, 
Firearms Discharge/Assault Research Project.

3. During my tenure with the New York City Police 
Department, I designed a multi-media firearms training 
program in which more than 20,000 police officers have 
participated.

4. I hold a Bachelor of Science degree in Criminal 
Justice from the John Jay College of Criminal Justice, 
City University of New York. I also hold a Master of Arts 
degree in Criminal Justice from the State University of 
New York at Albany and a Ph.D. degree in Criminal 
Justice from the State University of New York at Albany.

5. I have held fellowships and grants for graduate 
study from the Ford Foundation, the National Science 
Foundation, and the New York City Police Foundation. I 
was an adjunct assistant professor of police science at 
John Jay College of Criminal Justice for four and one-half 
years.

6. I wrote a doctoral dissertation on the use of deadly 
force which anlayzed 2926 incidents in which 3827 New 
York City police officers discharged firearms between 
1971 and 1975. These incidents are enumerated by year in 
Exhibit A attached. My doctoral dissertation was 
awarded the American Society for Public Administration’s



99

Annual Award to the Outstanding National Contribution 
to Criminal Justice Administration in 1979.

7. I have written articles on police use of deadly 
force which have appeared in the FBI Law Enforcement 
Bulletin, the Journal of Criminal Justice, the Journal of 
Research in Crime and Delinquency and the Los Angeles 
Times. I have served as a consultant on police deadly 
force to the United States Department of Justice, Civil 
Rights Division; United States Department of Justice 
Community Relations Service; United States Civil Rights 
Commission; Chicago Law Enforcement Study Group; and 
the Police Foundation. Also, I have lectured on police 
use of deadly force at universities and professional meet­
ings throughout the United States.

8. A major conclusion of my research and studies 
is that police use of deadly force to apprehend fleeing non­
violent suspects is inconsistent with the concern for life 
characteristics of the operations of the rest of the criminal 
justice system.

9. A major conclusion of my research is that police 
use of deadly force to apprehend fleeing non-violent sus­
pects does not deter criminal behavior or increase law 
enforcement effectiveness in any measurable way.

10. A major conclusion of my research is that police 
administrators can take direct action in the form of agency 
policies which will significantly reduce the incidence of 
police use of deadly force to apprehend fleeing non-violent 
suspects. This administrative action to reduce police use 
of deadly force to apprehend fleeing non-violent suspects 
does not endanger the lives and safety of police officers.

11. A major conclusion of my research is that mi­
nority citizens are disproportionately and negatively af­
fected by police use of deadly force.



100

12. I have examined data provided by the NAACP 
Legal Defense Fund in connection with this case. Those 
data concern crime and police use of deadly force in 
Memphis, Tennessee during the years 1969 through 1974. 
I have compared those data to data on crime and police 
use of deadly force and firearms in New York City during 
the years 1971-1975. That comparison shows the following:

a) The annual rate at which Memphis police officers 
discharged firearms (33.45 shootings per 1000 officers an­
nually) is 71 percent higher than that of New York City 
(19.60 per 1000 officers annually).

b) When controlling for risk of exposure to situations 
likely to precipitate police shooting, the rate at which 
Memphis police officers discharged firearms during 1969- 
1974 is nearly three and one-half times greater than the 
1971-1975 New York City rate. During 1969-1974, Memphis 
police reported 36.98 shooting events for each 1000 violent 
crime arrests effected (murder non-negligent man­
slaughter; forcible rape; robbery; aggravated assault). 
The New York City rate was 16.71 shootings for each 1000 
arrests effected.

c) More than half (50.7 percent) of the police shoot­
ings in Memphis during 1969-1974 involved shooting at 
property crime suspects. The comparable percentage in 
1971-1975 in New York was no more than 11.3 percent. 
This comparison is not precise because the New York City 
figure includes all shootings to “prevent or terminate 
crimes.” Thus, it includes shootings precipitated by both 
property crimes and crimes of violence. My estimate of 
the percentage of New York City police shootings which 
involved property crime suspects only is four percent.

d) Using the same figures described in “c” above, 
the average annual rate at which Memphis police fired



101

their guns at property crime suspects during 1969-1974 
(16.95 shootings per 1000 officers annually) is at least 5.8 
times greater than the New York City average annual 
rate during 1971-1975 (average annual rate of shooting to 
prevent or terminate all crimes — 2.90; estimated average 
annual rate of property crime shooting =  1.28).

e) The 1980 census indicates that 38.86 percent of 
the population of Memphis is black, but blacks accounted 
for 84.21 percent of the property crime suspects shot at 
by Memphis police during 1969-1974. Thus, the likelihood 
that black citizens were shot at as property crime suspects 
during 1969-1974 (rate =  .40 per 1000 population) is ap­
proximately ten times higher than is true for white citizens 
(rate =  .042 per 1000 population). The rate at which 
blacks were wounded in property crime shooting (.054 per 
1000 population) is approximately 20 times higher than the 
white rate (.0026 per 1000). The rate at which blacks 
were killed in property crime shootings (.058 per 1000) 
is nearly six times higher than the white rate (.01 per 
1000).

f) These great discrepancies hold true even when 
one controls for differential involvement among the races 
in property crime. Memphis police shot at 4.33 black 
property crime suspects for each 1000 blacks arrested for 
property crimes (burglary, larceny, and auto theft) dur­
ing 1969-1974. This rate is more than twice as high as the 
white rate (1.81 shootings per 1000 property crime arrests). 
Black property crime arrestees were shot and wounded 
more than five times as often as white property crime ar­
restees (.586 black woundings per 1000 arrests, versus .113 
white woundings per 1000 arrests). Black property crime 
suspects were shot and killed 40 percent more often than 
white property crime suspects (.63 black deaths per 1000 
arrests, versus .45 white deaths per 1000 arrests). In



102

New York City, differential racial involvement in police 
shootings also exists, but it is almost totally accounted for 
by differential racial involvement in the types of activities 
likely to precipitate shootings.

g) Memphis police officers were more than 15 times 
more likely to have shot at black property crime suspects 
than at white property crime suspects during 1969-1974. 
More than one in five Memphis officers (206.06 per 1000) 
shot at black property crime suspects during 1969-1974, 
while approximately one in 75 officers (14.27 per 1000) 
shot at white property crime suspects. The rate at which 
Memphis police wounded black property crime suspects 
(11.60 per 1000 officers) was more than 13 times higher 
than the rate at which they wounded white property crime 
suspects (.89 per 1000 officers). The rate at which 
Memphis police killed black property crime suspects (12.49 
per 1000 officers) was nearly three and one half times 
greater than the rate at which they killed white property 
crime suspects (3.57 per 1000 officers).

13. On the basis of these findings, I have reached the 
following conclusions:

a) The police shooting rate discrepancy between 
Memphis and New York City is almost totally attributable 
to the high incidence of Memphis police shootings at prop­
erty crime suspects. These shootings could be reduced 
significantly by strong administrative action, such as that 
taken in New York City in 1972. Since that time, “flee­
ing felon” shootings have declined by 75 percent in New 
York City.

b) As a result of the Memphis Police Department’s 
apparent tolerance of police shootings not precipitated by 
violent crime and not involving danger to police or cit­
izens, black citizens of Memphis were far more likely to



103

have been shot at, wounded, or killed by police than were 
white citizens during 1969-1974.

c) For reasons which cannot be precisely identified 
from data made available to me, the individual black cit­
izen of Memphis suspected of a property crime was far 
more likely to have been shot at, wounded, or killed by 
police than was the individual white property crime sus­
pect. In other words, the data indicate that Memphis 
police responded with more force to black property crime 
than to white property crime during 1969-1974.

14. I have examined data on fatal police shootings in 
Memphis during the years 1969 to 1976. The source of 
these data is the report of the Tennessee Advisory Com­
mission to the United States Commission on Civil Rights, 
Civic Crisis-Civic Challenge: Police Community Relations 
in Memphis 81 (1978). These data which do not include in­
formation on police shootings occurring between January 
16 and December 31, 1982, indicate that 39 persons were 
killed by the Memphis police during the rest of the period
between...................... to 1976. Of these, 26 were black, 8
were white, and 5 were not identified by race.

15. I analyzed these data to determine whether the 
blacks and whites among these victims were shot in sim­
ilar circumstances. Table I, attached as Exhibit B, shows 
the results of that examination. The table shows that 
1/2 (13) of the black victims and 1/8 (1) of the white vic­
tims were unarmed and none were assaultive at the time 
they were killed. Conversely, the table shows that 1/2 
(13) of the black victims and 87.5% (7) of the white 
victims were reportedly engaged in assaulting behavior 
against police or other citizens immediately prior to the 
deaths, of these assaultive victims, 7 blacks (26.9% of total 
black deaths) and 5 whites (62.5% of total white deaths) 
were reportedly armed with guns when shot by police.



104

These are certainly dramatic differences, but no measure 
of their significance is possible. This is so because the 
only statistically significant category of whites killed is 
those armed with guns.

16. On the basis of this analysis, I have reached the 
following conclusions:

a) The circumstances under which the Memphis Po­
lice shot and killed citizens during 1969 to 1976 varied 
dramatically with the race of the victims.

b) Memphis Police were far more likely to shoot and 
kill blacks in non-threatening circumstances than they 
were to shoot whites in non-threatening circumstances in 
this period.

c) The great disproportion of black citizens shot and 
killed by Memphis Police between 1969 to 1976 is largely 
accounted for by the great number of black citizens shot 
in circumstances in which they presented little or no 
danger to police or other citizens. In those years, Memphis 
police shot or killed 0.6 armed and assaultive whites for 
each non-assaultive white killed; but they shot and killed 
nearly 2 unarmed non-assaultive blacks for each armed 
assaultive black killed.

17. I have examined the account of the fatal shooting 
of Eugene Garner set forth in the Sixth Circuit Court 
of Appeals opinion. My opinion of this case is that it 
involves a well-intentioned action on the part of a police 
officer who acted up to the expectation of his superiors. 
On the basis of the limited account available to me, I can 
find no fault with the officer, who did only what he 
had been trained to do by his superiors.

The larger question raised by this tragedy involves the 
validity of what the officer’s superiors trained and ex­



105

pected him to do. It was not wrong for the officer to 
do what he was told; but it was very wrong that the of­
ficer had been told to do what he did. Had Gamer been 
apprehended, tried in accordance with due process guar­
antees, and found guilty beyond a reasonable doubt of 
the burglary he is alleged to have committed, he certainly 
would not have been executed. He is dead, however, be­
cause of policy and training which authorized the summary 
shooting of non-dangerous suspects on the basis of sus­
picion or probable cause.

/s /  James J. Fyfe 
James J. Fyfe

DISTRICT OF COLUMBIA: ss:

ON THIS DATE, before me, a Notary Public in and 
for the aforementioned jurisdiction, personally appeared 
James J. Fyfe, identifying himself as James J. Fyfe, and 
acknowledged himself as the person who executed this 
document as his free and volimtary act.

GIVEN under my hand and Notarial Seal, this 23rd 
day of June, 1980.

My commission expires July 1, 1984.

/s /  (Illegible)



EXHIBIT A

Incidents of Firearm Discharges By 
New York City Police Officers 1971 to the

Present

106

January - June

1971 630
1972 803
1973 556
1974 470
1975 439
1976 374
1977 414
1978 372
1979 364
1980 160

EXHIBIT B 

TABLE 1.

Actions of Memphis Shooting Fatalities by Race
1969 to 1976

Victim Actions

Non-assaultive

Assaultive - not 
armed with gun

Assaultive - armed 
with gun

Totals

Race of Victim 
Black

50.0% (n=13) 

23.1% (n= 6)

26.9% (n=7)

100.0% (n=26)

Race of Victim 
White

12.5% (n = l )  

25.0% (n==2)

62.5% (n=:5)

100.0% (n=8)



107

DEPOSITION OF W YETH CHANDLER

[4] WYETH CHANDLER,

The witness, being first duly sworn, deposed as fol­
lows, to-wit:

DIRECT EXAMINATION
BY MR. ARNOLD:

A.Q. State your name and your position, please, 
W'yeth Chandler, Mayor of the City of Memphis.

Q. Mr. Chandler, you have talked with Mr. Shea 
about the purpose of this deposition and you know the 
case that this is about? A. Briefly. I get confused. 
May I ask you this?

Q. Certainly. A. Is this the one where the—is this 
the one where the juvenile was in a car that had been 
stolen, and ran and was shot? ~~~

Q. Yes, that’s correct. A. Okay.
Q. This happened on January 12, I believe, 1972. 

A. Okay.
Q. And the person’s name is Eddie Madison. A. Ed­

die Madison.
Q. The child who was shot.
Now, you had been Mayor how long at that point? 

A. Twelve days, I assume.

* * * [6] to them.
First of all, before we get to that, though, in January 

of 1972, there were several shooting incidents that occurred 
very quickly after you had become Mayor, is that correct? 
A. I’m not sure how quickly, but there were, it seems 
like three or four within a two month period, maybe 
three within three weeks.



108

Q. All right. And the incident that we are discussing 
is one of those. A. Right.

Q. And you remember it as being one of those that 
occurred in this short period of time? A. I sure do.

Q. Who was the Chief of Police at that point? A. 
I believe Bill Price was the Chief of Police. As I recall, 
Chief Lux had retired before I took office, and I’m not 
sure whether—I guess Bill Price was Chief of Police. I ’m 
not sure. We had no Director. We were waiting on 
the appointment of a Director. My recollection is that 
Bill Price had been appointed Chief of Police.

Q. This was your appointment? A. It was.
Q. And I re-read this deposition, and what 

you * ♦ ♦

[9] A. All right.
Q. The sentence there says: “For example, we have

a situation that grew out of some deal where we had 
a stolen car situation in which a child ran out of a stolen 
car, and I think the child ended up mentally off or some­
thing. I don’t know what. Gotten in a car with some 
other people and they bailed out and left him holding 
the bag, and he ran and so forth.” And the question 
was: “And the shot?” And you answered: “And the
shot.”

And I believe that that is the situation that we are 
talking about here in this case. A. The only thing, 
of course, I’m not sure whether he was mentally off or 
what, but I remember, as the story was told to me, that 
was—that was the way I understood it.

Q. Yes, sir. We won’t try to prove his mental condi­
tion through your testimony. A. No, that would be hard 
to do.-

Q. This was the situation, then. I’m trying to focus 
on some of these prior statements.



109

Again, on page thirty-two, beginning with line 
eighteen, you made a statement and this was part of a 
previous statement, if you want to read the whole state­
ment, it’s fine, but the part that I think is referring to 
this incident says: “As I say, I think the one thing we
did move [10] into this thing you will see is the car 
thief, that just the car thief alone, not connected to any­
thing else, but just the car thief, you run him down, 
you get in the car, and he jumps out of the car and 
runs, you can’t connect him to burglaries or robberies, 
he’s nothing but a car thief, which is a felon, just never 
strikes me like a burglar or robber or murderer or rapist 
or et cetera. You know, he doesn’t fit into that category 
with me. That’s my personal opinion. I think I—I think 
it is in that area that I found some reason to relax it. 
That is because, you know, so many kids joy-ride, I hate 
to see them put in the same category with the burglar 
and robber and rapist and murderer, that type of guy. 
But that is just my personal opinion.”

Again, I believe, in this situation you were talking 
about a change of policy which occurred after the incident 
in which the juvenile was shot as he ran from the stolen 
car. Is that correct? A. That’s correct.

Q. And, finally, on page thirty-eight, line seventeen, 
you said: “I think if you have got a kid, you may have
a joy ride, certainly you don’t want to kill the kid, you 
know, but the time, January 8, 1972, and that is what 
I thought you were going to ask me, did I have a policy 
to shoot all fleeing felons, I say, no, they followed the 
policy of the State Law.” [11] And if I may stop read­
ing although that’s in the middle of a sentence. Again, 
you were referring there to the general policy, but some 
different feelings you had about the situation of a kid 
joy riding in a stolen car, is that correct? A. Yes. 
The State Law, in my opinion, said they could shoot flee-



no
ing felons, and we began to relax that in certain areas, 
not only joy riders, but primarily embezzlers, fraud peo­
ple and so forth. It may be a felony, but I didn’t look 
on it as necessary to shoot them if they were about 
to escape.

Q. Now, at the time of this incident, January 12, 
1972, again, we’re going back a long time in your history 
as Mayor, if you would, I know you’ve just made mention 
to it, but tell me in as complete terms as possible what 
you understood the policy of the Police Department to­
ward shooting—the use of deadly force, what you under­
stood that to be. A. Well, I understood it to be, as 
far as I knew it. I’d only been in office for twelve days, 
but I had been on the Council and I had some knowledge, 
not total knowledge, of the Police Department, my belief, 
it is now, that it was their policy that you did everything 
within human power to capture a fleeing felon without 
the use of deadly force. But if it became apparent to 
you that a fleeing felon would escape, if not apprehended 
by the use of firearms, there was a policy of the Police 
Department to use firearms.

[12] Q. And, then, of course, in addition to that, the 
police could use firearms in self defense or defending an­
other officer? A. Self defense, the protecting of someone 
else and so forth.

Q. When this—or when these instances occurred 
shortly after you became Mayor, you took it upon yourself 
to investigate the Department’s policies and shortly there­
after a new statement was issued, is that right? A. 
That’s true.

Q. Now, again, I know I’m asking you to go back 
a long way, but what did you do in that investigation? 
You must have called Chief Price in and you must have 
talked to some other people on the Force? A. I can’t 
remember who all I talked to. I’m not even—if it’s a



I l l

police matter, in all likelihood I read the files as much as 
I could and discussed the cases briefly.

Q. When you say “the files” are you talking about 
the three or four incidents? A. The three or four in­
cidents where they were shot at, yes. The first time I 
remember conversing about this particular incident, I be­
lieve it was an incident involving a situation that I don’t 
believe the police had any fault in, and that was where 
they shot a man where the Pepsi Cola driver had [13] 
called and said that—I guess, had an armed robbery and 
he had lied. And a youngster, I believe a young boy was 
shot. I’m not sure how young he was. But those two 
stick out in my mind. And it was simply my feeling that 
in cases of joy riding or in cases of felonies that don’t 
involve physical force, threat of life, rape, so forth, those— 
threat of personal harm, or threat of—or certainly of steal­
ing anything or being in a house or place of business 
where others might be, and, therefore, possible violence 
could occur, that we ought not to use firearms at all. 
Now, that was just my thoughts about it and I expressed 
them and felt that way about it. I know that it was not 
tied into the State Law, and I knew that, you know, State 
Law overruled anything, any policy I might have, but 
that was the policy I felt would be best.

Q. Now, did you understand that in the Police De­
partment, in the past, that is, prior to this period of 
time in January of ’72, that police officers had utilized 
deadly force against any situation where a felony might 
have been committed? A. Well, I didn’t know whether 
they had or not. I really didn’t make any study of whether, 
for example, they’d ever shot an embezzler who was flee­
ing. The primary thing I was—it was just something 
that was brought up in the discussion about the Fleeing 
Felony Statute. It was just my [14] feeling that as you 
don’t apply it to an embezzler, that it should be in some



112

way, therefore, limited. As far as I knew, they had never 
shot an embezzler. To my knowledge, they had not. 
I assume they had not. But if you had the right to and 
didn’t, as a policy, then we ought to extend that same 
right to the juvenile in a joy riding situation. That was 
basically the idea that I—so, we listed things that we 
felt you could use it for and left off those things which 
we, even though you may be able to under the State 
Law, that I didn’t feel that you should.

Q. In fact, wasn’t it clear to you that they would 
not have used force against say an embezzler? A. I 
would assume they would not. But inasmuch as they 
wouldn’t do it against an embezzler, I just simply put 
the child, fleeing felon or joy rider in the same category.

Q. That’s extend that principle to some other felonies? 
A. That idea, right.

Q. And I assume in fact that there are a lot of other 
felonies that you knew then that the police simply would 
not use force to capture such persons, and that would 
be in non-violent situations? A. Well, not necessarily 
non-violent. I didn’t not—was requested and did not 
remove it, for example, I don’t think from burglaries, 
which are not necessarily violent, but [15] that I have 
considered always as the type of things that can lead to 
violence.

Q. Well, now, I looked through the Code, the Ten­
nessee Code this morning, just looking at a lot of different 
felonies, trying to figure out ones that I thought were 
in effect in 1972, and I found a lot that it appears to me 
the department has never used force when trying to ap­
prehend such a person. I found one like in TCA 39-1907, 
it’s a felony to issue false stock certificates. We can assume 
they’ve never used force in a situation like that? A. As 
far as I know, they have never—I would assume so.



113

Q. And, in fact, when you were having this dis­
cussion, wasn’t that the general flavor of the discussion, 
that it was in certain situations, felony situations, it was 
used and in others it just was not used? A. That’s why 
the end result, I believe, was a publication of those felonies 
that I felt you should use it.

Q. Now, prior to that publication that came out as 
a result of this meeting or meetings—was there more than 
one meeting? A. Probably so.

Q. Had there ever been a delineation of which felonies 
the department, in those situations where the department 
would ♦ ♦ ♦

[21] Q. Now, did you—you’ve seen this one before, 
haven’t you? A. This statement here, yes.

Q. The last one I just handed you. A. Right. I’m 
sure I have.

MR. ARNOLD: I’d like to make that Exhibit 1 to
your deposition.

(Whereupon, said STATEMENT was marked EX­
HIBIT 1.)

Q. Now, this is dated January 20, and on page three 
of that it says: “Firearms—” This is paragraph Roman
numeral V: “Firearms shall not be discharged: A. As
warning shots; or B. From a moving vehicle or to stop 
a fleeing vehicle except as provided for in Paragraph IV.” 
And that last statement I read, V-B, reflects the change 
in your—in policy that resulted from these meetings, is 
that correct? A. No, I don’t think so. That’s one of 
the changes. I’m not sure about warning shots. I think 
ICrelstein had been against warning shots and he brought 
that up.

The real change in the policy, as I recollect it to 
be, first of all, in . writing down those things under A 
and B, and listing those things under II, by listing. In



114

other words, by saying, rather than “fleeing felons,” you 
list the felonies that, if you can’t apprehend a guy, you
list all these things [22] that you can shoot, you can
use firearms, you can use deadly force to apprehend him. 
Also, I think for the first time they had this report to 
be made and so forth.

Q. Yes. I believe Chief Lux perhaps had prohibited 
in 1969 the use of warning shots. A. That may be. That 
was something that was discussed.

Q. In Section IV-B-2, the auto theft has been elimi­
nated from that list. A. Grand larceny has not been 
eliminated. I don’t know whether auto theft is listed 
under grand larceny under the law or not. I can’t tell
you. I don’t think, as I remember, that auto theft per
se was discussed as needing to be eliminated. It was 
the joy riders that bothered me, not the auto thieves. 
I tried to make that clear earlier. I don’t consider a 
professional auto thief as any less the type of guy that 
I would want to apprehend personally than a guy who 
would sneak into Joe’s Barbecue and ransack his building, 
steal his money. One of the arguments was to eliminate 
burglary and this type thing, some kinds of burglary, which 
I did not do. I did not think it should be done. But 
I don’t remember discussing auto theft as such. I do 
remember discussing children joy riding.

Q. Now, you understand then that this document 
we’ve labeled as Exhibit 1 excludes the situation where 
a person * * *

*  *  * [27] deplore.
Q. Well, actually, the policy was such that it allowed 

one officer to use deadly force in that siutation and an­
other officer to—and when I say “policy” we know we’re 
not talking about a written policy, but the way things 
operated in the department at that time, it allowed one



115

officer to use force, deadly force, and another one not 
to. A. Well, I’m not sure that that isn’t the policy in 
everything in the Police Department today. I’m not sure 
that every officer would react, for example, to a fleeing 
burglar or fleeing murderer the same as another. They 
perceive the law, and, therefore, the policy to be, if I 
cannot shoot this person, if I cannot apprehend him, I 
have the right to use force, I have the right to use a 
firearm to apprehend him. That doesn’t mean, in my 
opinion, that every policeman will shoot an escaping per­
son, felon, if they can’t apprehend him. There may be 
some people over there, I don’t know who they are or 
anything else, but I believe some would say “I’m just 
not going to shoot that fellow. I believe we can catch 
him. I believe that he’s catchable.” And I believe that’s 
true in this area. But in this area, I didn’t want, if 
I could avoid it, anyone to have the decision in their 
mind that I can or can’t. I wanted it eliminated as much 
as we could by policy from their decision-making process. 
I can’t make a * * *

DEPOSITION OF E. WINSLOW CHAPMAN

[4] E. WINSLOW CHAPMAN,

The witness, being first duly sworn, deposed as fol­
lows, to-wit:

DIRECT EXAMINATION 
BY MR. CALDWELL:
Q. You are E. Winslow Chapman? A. Yes, lam.
Q. And you’re the Director of Police Services, is that 

the correct title? A. That’s correct.



116

Q. Which position you’ve held since September, 
1976? A. Correct.

Q. And prior to that time you were the Mayor’s 
Executive Assistant? A. Correct.

Q. From 1 January, 1972 until September, 1976? A. 
Correct.

Q. And prior to being the Mayor’s Executive As­
sistant what business were you in? A. I was self- 
employed, farming and real estate.

Q. Are you a native Memphian? A. Yes.
Q. You attended the public schools of Memphis? 

A. Yes.

[12] Q. Is that right? You had over thirteen hun­
dred, fourteen hundred? A. I think they went over 
fourteen hundred at one point, didn’t they, Art? I’m 
not sure. It went up at least in the range of fourteen 
hundred at one point.

Q. You were appointed Director in September of 1976 
at about the time that the Civil Rights Commission was, 
maybe during the course of its investigation of Police 
Community Relations in Memphis? A. Directly before 
they came in here, like days before they came in.

Q. And you presented testimony to the Civil Rights 
Commission, is that correct? A. Yes.

Q. One of the big issues with which the Civil Rights 
Commission concerned itself and which you testified to, 
I believe, had to deal with the relationship of the Memphis 
Police Department with the black community? A, It 
was a major part of the issue.

Q. And you agreed at that time that it was a serious 
problem? A. I did.

Q. Had it been a serious problem as long as you 
had been observing the community and the situation? 
[13] A. My feeling was it had been a serious problem 
for years, yes.



117

Q. Now, from your perspective now what are the 
contours of that problem? What are the dimensions of 
it, and what causes it? How deep seated is it? How are 
you going to remedy it, and Fm not trying to suggest that 
you haven’t been taking steps to remedy it. A. Well, I 
think it has been alleviated in large part at this time. 
And I think that a major part of that is in, first of all, 
the perspective of the black community as to what the 
police department is going to do about them, and secondly, 
the perspective of the police department itself as to where 
they fit relative to the black community. You know, 
its a discussion that we could go on for several hours if 
we really got into it.

Q. I mean is it a fair definition of the problem that 
historically the black community has not trusted the 
Memphis Police Department, or Memphis police officers 
in general? A. Oh, I think that’s a fair and correct state­
ment.

Q. And they also feel that they are subject to abuse 
by Memphis Police officers? A. Yes.

Q. And there’s a basis in fact and history for that, 
is there not? [14] A. Yes. Yes.

Q. In fact it hasn’t been eliminated to this day? A. 
Not completely, no.

Q. Last week you had a situation where you, well, I 
guess you forced an officer to resign for passing out racist 
literature on company time, so to speak? A. He chose 
to resign.

Q. But am I correct in that he was passing out racist 
literature to fellow officers? A. I don’t know how to 
describe that literature to you, but yes, it was—It did 
have—it was basically racial as far as its overtone was 
concerned.

Q. According to the descriptions in the press, I don’t 
know whether it was a pamphlet or a series of papers or



118

what, but it depicted blacks as still being in the ape age, 
or the ape stage of development? A. That basically 
was what it did, yes.

Q. All right. The Commercial Appeal’s article on 
this incident also said that other white officers were ob­
served reviewing this material and laughing. Is that a 
fact or did you find out? A. That was as related to us 
by the black officers who observed it.

Q. So there’s still a chance you have racist police 
[15] officers? A. Oh, yes, I think that that’s a definite 
possibility.

Q. And a police officer who would find fun in this 
sort of thing might also mistreat a black person, mightn’t 
he? A. Well, I don’t think that you could make that 
definite assumption, I really don’t. I think that obviously 
the treatment of all citizens, black and white, by this de­
partment is not exactly all the time in every instance 
what I think it should be. On the other hand the im­
provement has been just tremendous over what it was 
a few years ago, and I think that this improvement is 
continuing.

Q. Well, I agree with that. I mean I agree with you 
that there has been improvement and it is in contrast to 
what it was a few years ago. A. I don’t relate the passing 
out of that literature as necessarily being related to a 
tendency to abuse people. I think it was just a very im­
mature, childish, inexcusable, but immature and childish 
thing.

Q. Well, someone who finds humor in this sort of 
bigotry at least has a potential not to treat people equally 
because of the color of their skin, would he not? Well, 
anyway, the fact that we agree there is a basis in fact 
for this— A. (Interposing) There’s a basis in fact for 
the [16] distrust of the black community.

Q. And that would have been true in 1972? A.
Absolutely.



119

Q. And 1974? A. Absolutely.
Q. And 1976? A. Yes.
Q. A part of that historical tension between the 

Memphis police officers and the black community is related 
to incidents of the use of deadly force? That’s also been 
a part of the overall community relations problem, has it 
not? A. As far as the perception of some members of 
the black community, yes.

Q. Would it be fair to say that in 1972 a black person 
is likely to have feared contact with the Memphis police 
officers? A. It’s possible, yes.

Q. And I saw an article a while back, I keep all kinds 
of clippings, but this is—you may recall this situation 
where the guy was standing on the corner and the police 
arrived and he started running and was shot at. It 
turned out that he was totally innocent of anything. He 
was just standing on the corner, or were you statisfied 
that he was— A. (Interposing) Well, no. I was not 
satisfied. i  * * *

* * * [18] the person he shoots at is responsible for 
the crime. Use all reasonable means to capture a flee­
ing, dangerous felony suspect before using his weapon. 
Have a clear line of fire when he uses his weapon in 
order to prevent injury to innocent persons.”

And then it says, “The Trial Board cleared him on 
the first two sections but found him guilty on the third,” 
apparently because a pellet struck a house and could 
have injured an occupant. So he violated your deadly 
force policy at that time by not having a clear field of fire?

A. Right.
Q. Before he fired. All right. When you took over 

the Police Department in September of 1976 what was 
your first action with respect to modifications or changes 
in the deadly force procedure? Let me show you a



120

document which I believe is the last General Order on 
Deadly Force before this summer, and that’s dated 5 
February 1974?

(Passed to witness.)
A. Uh-huh.
Q. That was the policy in effect when you became 

Director in 1976? A. Right.
Q. Now, you made some changes over the time that 

you’ve been Director in the deadly force policies and pro­
cedures, [19] and reporting procedures and so forth? A. 
No, I don’t think so. I think I’ve made changes in the 
reporting procedures. I think I have clarified, I hope, you 
know, sufficiently what the policy is, but as far as I’m 
concerned I changed nothing as far as this basic—well, I 
have taken certain standing rules unwritten, such as fir­
ing at juveniles, which I don’t think you will find written 
anywhere, but it was a policy, unwritten, but nevertheless 
a policy of the department. My instructions when that 
1979—

Q. (Interposing) Now, how did you know about this 
policy? Let me interrupt you a moment. How do you 
know it was a policy? A. Through staff discussions. 
Through staff discussions.

Q. How long do you think that had been a policy? A. 
I don’t know. My instructions to Lieutenant Kenon were 
to take all the extant procedures, policies, written and un­
written, to come up with them, to discuss them with myself 
and the command staff, and then from that we gave 
him the instructions of how we wanted the new General 
Order written, with a further instruction that it was to be 
written in such a way that if at all possible there could 
be no question about what it meant, because I think that 
the problems that we had found in the policy was, you 
know, some question as to what—at times as to what the 
policy was, so [20] we wanted to make it as clear as pos­
sible. But I don’t feel that I changed anything.



121

Q. The substance of the policy? A. No.
Q. All right. And in fact the—let me show you an­

other document which is dated 16 July 1979, and this is the 
policy that resulted from your instructions to Lieutenant 
Kenon? A. Right. Right.

Q. Now, how did—^when you arrived at this policy 
tell me who all was involved in formulating this policy 
in addition to—^Lieutenant Clyde Kenon is your legal ad­
visor, is that right? A. Right.

Q. And who else was involved? A. Oh, I would say 
for sure the entire Command Staff which I refer to as 
being Chief Inspector and above, probably some Inspec­
tors and some Captains. What we do on a major—

Q. (Interposing) Let me interrupt you one second. 
How many people are involved in the Chief Inspector and 
above? A. Twelve.

Q. Twelve. A. But what we do on something of 
this sort, we’ll tell the staff person what we want; that 
is my Command Staff will * * *

*  *  * [27] them into a film. I guess you’re familiar 
with a “Shoot - Don’t Shoot” film.

Q. Now, that’s a— A. (Interposing) That’s where 
an officer is shown a set of circumstances on a screen and 
he has a gun with blanks, and he had to make up his mind 
whether to shoot or not shoot.

Q. Did Sixty Minutes run a program on one of these? 
A. Yes. Yes. But we’ll make our own.

Q. Did you have any kind of film prior to this Or­
der that you— A. (Interposing) We have the standard 
“Shoot - Don’t Shoot” film, but I don’t like it because I 
I don’t think it applies itself to what our problems are. 
It has some situations in there that are just totally re­
moved from anything that we would encounter, but we



122

will require in the future, probably during this next in- 
service class, that the officer not only pass the P.P.C., 
which is the straight marksmanship course, he will also 
have to pass our “Shoot - Don’t Shoot” course, which once 
again will have those situations which we, and that’s the 
Command Staff and the Training Staff, perceive to be our 
most serious problems. It could be because it’s a very, 
very serious shooting, or because it’s one that continues 
to pop up and cause us problems.

* * * [29] the officer, and to effect arrest? A. Right. 
A  fleeing felon.

Q. A fleeing felon situation. And as you know this 
case concerns the third category? A. Right. Well, I’ve 
got to be honest with you. I’m not familiar at all. I 
know nothing whatsoever about the case we’re discussing. 
I was, you know, I don’t have any historic knowledge of 
it, and I generally heard the Mayor discuss it, and that’s 
the extent of my knowledge of it.

Q. Well, you know, it was an auto theft situation 
where some teenagers had— A. (Interposing) I’ve heard 
that discussed in his office.

Q. So you know that much about it. I mean I’m not 
going to get into the facts of this case with you. Now, 
what is the purpose of using deadly force to arrest some­
body? Let’s assume that it doesn’t have any of the other 
two elements in it. There’s no element of self-defense 
involved. There’s no element of defending another citizen 
involved. A. You and I discussed that at length in this 
very room sometime back, but I’ll reiterate.

Q. All right. A. We feel a dangerous felon is a 
person who by virtue of his actions and his temperament 
and his propensity is an [30] individual who, if allowed 
to escape from whatever crime you encounter him in, is



123

subject to cause danger, is subject to be in a situation 
which will be dangerous in the future.

Q. To either the police officer or to who? A. Well, 
to both the police officer and the citizens, primarily the 
citizens, but I think you’d have to say to both; that he 
is a potentially dangerous person, that by virtue of com- 
miting one of these acts he has proved himself to repre­
sent a danger to the community, which the community 
I would hope would include both police and the citizens. 
It should. Therefore, if allowed to escape he represents 
a very clear future danger. That’s the rationale.

Q. So the purpose is to— A. (Interposing) The 
purpose is to apprehend him.

Q. But when you use deadly force you’re also risking 
his life? A. Yes.

Q. And it’s not for what he’s doing right then, but 
it’s what he might do in the future, is that essentially 
what you’re saying? A. No. I think you’ve got to 
take it in steps. We’re saying that we’re using deadly 
force, and we may use a lot of other methods with deadly 
force being the last resort to apprehend this person. And 
we’re saying that the reason we [31] would go as far 
as deadly force is because if allowed to escape this person 
would represent a danger to the community in the future, 
and therefore we would do all of the things that we would 
do in some other circumstances; for instance, if it’s some­
one who’s a DWI and driving in a reckless manner, we 
would try to cut him off. We would try to call in help. 
We would do everything we could to stop him. We would 
not use deadly force.

In the case of a fleeing felon who we consider to 
be a basically dangerous individual, a person who by virtue 
of committing a felony has proved himself to be a basically 
dangerous person, we would go one step further, assuming 
all other means were exhausted and use deadly force



124

to apprehend him. Now, the use of deadly force relates 
to what he’s done only that by doing whatever he’s done 
he has placed himself in the category of being a dangerous 
felon, of having committed a felony and therefore being 
a dangerous person who has to be stopped with everything 
up to and including deadly force.

Q. All right. Now, some of the felonies on the list 
are inherently dangerous felonies? A. Yes.

Q. Burglary in the First or Second Degree? A. 
Right.

Q. But others may not be inherently dangerous fel­
onies, [32] do you agree with that? A. We’ve discussed 
that, too, yes.

Q. And we’ve talked about Third Degree Burglary? 
A. Right.

Q. And how that frequently a crime is committed 
by juveniles, frequently unarmed, I’m not saying all the 
time but it does have a high degree of frequency that 
these people aren’t armed. They’re not breaking into some­
body’s house, they’re breaking into a business establish­
ment. A. Well, as I said to you previously, unfortunately, 
we don’t have specialized burglars, and we don’t have 
burglars who specialize in Third Degree burglaries only, 
nor can we say with any accuracy whatsoever that the 
fact that an individual is a juvenile does not—automati­
cally makes him not a dangerous person. I think statis­
tics and facts would definitely not bear that assumption 
out. So what we’re saying is that a burglar, a person 
who would break into a building, we are not prepared 
to say that a person who is encountered escaping from 
a Third Degree Burglary is simply a Third Degree Bur­
glar. We’re saying he is a burglar, and that burglars 
are dangerous people. And this obviously could be de­
bated, and you and I have debated it. But we’re saying 
he’s subject to commit a First Degree Burglary maybe



125

tomorrow night, maybe not, but the chances are that at 
least—and I [33] think I could run you through a series 
of situations. For example, the burglars who broke into 
Mrs. Dorris’ home, Mrs. Jewel Dorris’ home sexually as­
saulted her in unspeakable ways, left her tied spread- 
eagled to a bed for some forty-eight, fifty hours. She 
escaped with her life by the hardest. They were in fact 
guilty of Third Degree Burlaries before that event and 
were apprehended in the course of a Third Degree Bur­
glary after that event. So I don’t think you can categorize 
persons involved in Third Degree Burglaries as a non- 
dangerous person. They may not be.

Q. I agree. Now, what did you do with these peo­
ple when you caught them? You didn’t take them out 
and shoot them, you took them to a jail and charged 
them with a criminal offense— A. (Interposing) Yeah. 
Right. Hopefully we don’t take anyone out and shoot 
them.

Q. Well, I agree that I’m not—I didn’t mean to over­
state my point. You couldn’t just go through your rec­
ords, your arrest records, or your conviction records and 
pick out an individual with a high degree of Third De­
gree burglaries on his card and go out and arrest him 
because he might commit another one tomorrow night, 
although the statistics are very good that he might? A. 
Right.

[34] Q. You couldn’t go arrest him? You couldn’t 
get an arrest warrant? A. No, I could not.

Q. On the basis of that information? A. No, I 
could not.

Q. But what you’re telling me is that you shoot him 
for that purpose because if he gets away he might commit 
another one tomorrow night? Now, isn’t that what you’re 
saying? A. Fm saying we apprehend him and we au­
thorize the use of deadly force to apprehend him.



126

Q. Unless he’s thought to be a juvenile, now? A. 
Unless he’s thought to be a juvenile. That is a policy 
which brings about considerable conversation because, once 
again, juveniles are increasingly subject to be dangerous 
people themselves.

Q. But if they’re being dangerous in a way that the 
officer believes presents a threat to his life or the life 
of some other person— A. (Interposing) Right.

Q. (Continuing) —he’s authorized to use deadly 
force, isn’t he? A. Absolutely.

Q. But it’s only that he’s not allowed to use deadly— 
the officer is not allowed to use deadly force solely on 
the [35] basis of the fact that he’s committed a crime? 
A. Solely on the basis that he’s a fleeing felon.

Q. In one of these felony categories that’s listed? 
A. Right.

Q. Do you think you ought to shoot auto theft sus­
pects if there’s no other way to apprehend them? A. Do 
I think so? Probably not but I have mixed emotions 
on that.

Q. How about embezzlers? A. No. Statistics would 
show you that embezzlers very seldom harm anyone in 
the course of embezzlement, and the reason I said I have 
mixed emotions on auto theft is because of the fleeing in 
an automobile representing a clear and inherent danger, and 
I—as I say, I’m saying “no” , but I’m telling you I have a 
reservation about it. By the same respect I would tell 
you that I’m not sure in terms of, and I think we’re 
talking about danger, in terms of how dangerous a DWI 
is, but I would say in the case of DWI or traffic or an 
auto theft, and they all three basically fit in the same cate­
gory as far as danger is concerned, is that there is almost 
always another way to stop them.

Q. But these are— ŷou’re talking about people who 
are in automobiles who are fleeing? A. Right.



127

* * * [42] force because the man was an auto theft. 
He was using deadly force because according to him the 
man was trying to run over him. He was reprimanded, 
as I recall, for the way they treated the man once they 
took him into custody, not for using deadly force.

Q. I was just exploring a hypothetical, and I didn’t 
even mean to mention this officer’s name because I wasn’t 
trying to get into the facts of his case, since I don’t repre­
sent anybody involved in that.

I’ve lost my question now. All right. We were talk­
ing about the purpose behind using deadly force, and 
you’re telling me that the basic purpose is to prevent him 
from getting away and committing another similar crime 
or a worse crime? A. Committing a dangerous act in the 
future.

Q. In the future. And this would be even though 
he hasn’t committed a crime inherently dangerous to peo­
ple at the time, at least so far as the police officer on the 
scene knows from all the facts that he observes? Even if 
this suspect—diet’s assume he’s breaking out of a ware­
house or a school at night, or something. That’s a Third 
Degree burglary, he’s guilty of a felony and he’s tried and 
convicted. But you authorize the officer to use deadly 
force in those circumstances because statistically you think 
that a lot of people [43] in this category commit more 
violent crimes if they don’t get apprehended? A. I think 
that that is not an inherently non-dangerous crime. Sup­
pose he encountered a guard or an individual in that? 
The fact that the warehouse happened to be empty and 
therefore he encountered no one, and therefore no harm 
was done to anyone does not make him any less a danger­
ous person. The propensity to commit an act. Suppose 
that we caught someone burning down—arson is also on 
the thing, suppose we caught someone burning down a 
building which had no one in it, and it was a building



128

away from everything else. He would still be an arsonist, 
because the propensity to burn down buildings, the fact 
that that one building happened to be unoccupied, the 
propensity to do that makes him an inherently dangerous 
individual, and I think that is the issue, is that what is 
a dangerous felon? An embezzler is not a dangerous 
felon. He is a felon but not a dangerous felon. A burglar, 
and we don’t—we don’t specialize burglars in categories. 
Burglaries may be specialized, but burglars we don’t feel 
are. A burglar is a dangerous felon.

Q. Although there are non-dangerous burglars? A. 
No, I don’t think so. I think a person who would commit 
burglary, you know, is subject to—he is an inherently dan­
gerous person by virtue of the fact that he commits [44] 
burglaries.

Q. I used to live in Parkway Village. I’ve never been 
ripped off as much in my whole life as I was during those 
two or three years I lived out there, but it was mostly 
kids. They broke into houses. They broke into—stole 
my tools.

MR. SHEA; This is off the record.
(Off the record comment.)
Q. (By Mr. Caldwell) There was never a situation 

where deadly force was considered. I mean if we caught 
these kids they went to Juvenile Court. We gave them 
a lawyer. We gave them all the due process in the world, 
and then they got put in the custody of their parents 
where they were to begin with, and that’s all that hap­
pened to them. We don’t kill them. But you’re saying 
that police officers are authorized to kill them if they’re 
escaping—not now because they’re juveniles, but if they’re 
adults he’s authorized to kill them? A. Well, I think that 
you hit on a very important point there, “authorized to 
use deadly force.” We rest our case in the judgment of 
police officer. A police officer is supposed to have judg­



129

ment. And I think the issue here is not that he is re­
quired to use deadly force in the case of an escaping bur­
glar, but that he is authorized to do so. I think that you 
would find more cases of escaping burglars who in effect 
successfully escaped and who did not have deadly force 
used [45] against them. I think that if you restrict the 
officer from the use of that deadly force then you’ve got 
a problem.

Q. All right. Let’s talk about that. Do you know 
what percentages of arrest are effectuated by the use of 
deadly force? A. Well, very few because you would 
find that deadly force is the exception rather than the 
rule. And as I say, statistics would easily bear you out 
that—just offhand, just a jump at a number. I’d say maybe 
one percent or less of all arrests involve the use of deadly 
force in any way.

MR. SHEA: Excuse me. Could you clarify what you 
mean by “ the use of deadly force” ? Is that unholstering 
your revolver or is that actually—

Q. (By Mr. Caldwell) (Interposing) Discharging the 
firearm is what I’m talking about. You know, we’ve got 
statistics in the Wylie case covering about a four year 
period, and I’d say that at least ninety percent of them 
the suspect escaped. Now, he might have been arrested 
later because of other information that he had. A. But 
what I’m saying to you—that’s not the statistic I’m re­
ferring to. What I’m referring to, of all arrests made 
how many involve the use of deadly force, I would say 
it would be less than one percent, probably less than a 
half percent. I don’t have that statistic, but I know [46] 
how many arrests we make, and if you want to even 
boil it down to arrests of felons I think you’d still find 
it less than—well, let’s say you’d find it a minute per­
centage point.



130

Q. That’s true. I think when we compile these stat­
istics something like, you know, I don’t know exactly, it 
was something like a hundred instances of the use of 
deadly force against property crime suspects during the 
same period of time fifteen thousand property crime ar­
rests were made. A. I would say that.

Q. So we’re talking about a very small percentage 
of arrest situations in which deadly force is even used. 
Now, my question is, let’s say there is a hundred in a given 
period of time in which deadly force is actually used. 
Still a small percent, less than half of those actually re­
sult in the arrest of a suspect. In other words they miss 
more— A. (Interposing) You’re saying in other words 
do we hit at what we shoot at? The chances are, you 
know, probably more likely, under the circumstances 
where deadly force is used, he will not hit. I agree with 
that.

Q. I mean if we just look through the incidences that 
get Coverage in the paper over the past six months, one 
or two of those the suspects were hit, but in other instances 
like this police officer who was involved in the auto theft 
[47] investigation, he didn’t hit anybody. I mean that just 
happens more often than they hit somebody? A. Right.

Q. All right. So we’re down to where—^maybe we’re 
down to a tenth of a percent now of arrests that are ac­
tually made by the use of deadly force? A. Yes.

Q. And a high percentage of those are made because 
the victim is killed or seriously wounded? A. Yes.

Q. Now, I’m just talking about the non-violent prop­
erty crime suspects, or at least the unarmed property crime 
suspects.

MR. SHEA; Excuse me. When you say “unarmed” , 
does the officer know that he is unarmed at the time the 
property crime is being—



131

Q. (Interposing) Well, these statistics are ones that 
Captain Coletta compiled for us and were separated into 
those in which he used it for self-defense and defense of 
others, and in those in which he just used it for arrest 
purposes. He wasn’t using it because he thought the 
suspect was armed, and all those instances were unarmed. 
So you know, I’m not trying to get any general agreement 
on unarmed or non-violent or inherently not dangerous 
property crime suspects.

* * % [49] it would overwhelmingly pass that deadly 
force should continue to be used for all felons, and I don’t 
think they would restrict it to the ones we have. That’s 
just an opinion.

Q. Well, it would be a difficult referendum to conduct 
and have any meaning to it. If you gave them a fact 
situation like kids breaking into Snowden School or some 
public school and ask them if they thought the police 
officer ought to use deadly force with those kids that 
ran from the police—it would be a different response than 
if you asked them if they ought to shoot a fleeing mur­
der suspect? A. I’m not so sure that you correctly 
interpret the feeling of the community, the black com­
munity and the white community in regard to kids who 
do something like that. I’m not sure we agree on that, 
but that’s something we neither one of us will know. 
I think, once again, I reiterate that persons who commit 
burglaries have proved themselves to have a propensity 
to be dangerous and therefore they are dangerous felons, 
and therefore we allow the officers’ prerogative to use 
deadly force. We do not require him to use deadly force, 
and he probably does not use it more often than he uses 
it, but he nevertheless has that right.

Q. Before you got off onto the referendum answer, 
we were talking about what a small percentage of ar­



132

rests are actually effected by using deadly force in the 
property crime, [50] —unarmed property crime suspect 
category. A. I would concede it as a very small percent.

Q. And I want to get back to this question because 
I want, I really want to press you on just what legiti­
mate law enforcement objective is served by that policy. 
Now, it can’t be capturing criminals because you don’t 
capture many that way. A. Well, nevertheless that’s 
what it is.

Q. That’s it? Capturing criminals? A. Right.
Q. Chief Lux used to argue that it deterred other 

people from fleeing, the use of— A. (Interposing) I 
think in a degree it does deter them. I think that the 
absence of it would be whatever the negative of deter 
is, encourage, I suppose.

Q. And is that still a purpose of the— A. (Inter­
posing) No. You just said it did. That’s not the purpose 
of the policy. I’m just saying that I agree with that.

Q. I say Chief Lux argued that it did have a deter­
rent effect. A. And I would agree with you that it 
does, but I’m saying that’s not the purpose of the policy.

Q. You would agree with Chief Lux? [51] A. 
Agree with—excuse me, agree with Chief Lux. I thought 
I had you on my side there.

Q. No. In fact I’ve never subscribed to that, that 
it deters people from commiting crimes by using deadly 
force against fleeing suspects. I always thought that was 
a hard way to—one time the department, I don’t know 
if you’re familiar with this, in 1969 Chief Lux issued the 
first Order prohibiting warning shots, and you still— ŷour 
policy still incorporates that prohibition? A. Right.

Q. And he did that after some study indicated it 
just wasn’t having any effect? A. Right.

Q. I think one police department reported that they 
thought it just made the suspects run faster. A. Well, 
I could give you a personal experience of that.



133

Q. Give me that. A. I was chasing a man through 
a field and somebody in the back of the crowd said “Halt” 
and shot up in the air and I was just about to catch 
him, and he ran off and left me. I was running just 
as fast as I could go.

Q. This was when you worked for the Sheriffs De­
partment? A. Yes. I was within two steps of catching 
him and he [52] just ran off and left me.

Q. Now, suppose he’d shot at him and missed? A. 
I suspect that would have probably made him run.

Q. Had the same results? A. Yes.
Q. Chief Lux testified for us in the Wylie case, and 

of course, he’s dead now, but he felt that there was— 
one of the biggest problems he had in curtailing the use 
of deadly force by police officers was what he called “peer 
pressure.” You know, it seemed to be a sort of a macho 
kind of thing to use deadly force. Is that a problem 
in your judgment now? A. No.

Q. And that’s because you have had more effective 
publication of the rules and regulations? A. I think 
so.

Q. Does this General Order—do the officers get re­
minded of that periodically at roll call? A. No, not 
at roll call, but they’ll get a pretty extensive course on 
it each year during in-service training to include, as I 
say, the “Shoot - Don’t Shoot” film.

Q. Would you be satisfied just to have the State 
law authorizing the shooting of fleeing felon suspects with­
out any written orders of any kind? [53] A. I’m satis­
fied with our written orders. I wouldn’t want to go 
back strictly to State law.

Q. Why? A. Well, I think State’s law is too vague.
I think that State law is not specifically spelled out and 
therefore represents a problem or a danger to the police 
officer that in a situation he might do something which



134

caused him to be liable or him to have a problem, and 
that’s one of the reasons that we wanted it spelled out, 
I wanted it spelled out in just as fine a detail as pos­
sible. So, no, I think the State—let’s face it, the State 
law is mainly, in regard to fleeing felons, is not in fact 
a law. It’s a series of case Opinions, and therefore it’s 
very, very complicated, and you’ve almost got to take 
it case by case to know what the State law is.

Q. But there aren’t that many decisions? I think 
it’s only four or five. A. No, but they’re very compli­
cated decisions, you know.

Q. Most of them arise in the criminal context, too, 
when a police officer is being charged with manslaughter 
or something? A. No. I think that the responsibility 
of carrying a weapon and using that weapon is awesome. 
It’s an awesome responsibility, and therefore we should 
very closely regulate it, very closely monitor it, and insure 
that every officer [54] who is empowered to do thus 
is very clear under what circumstances. I think that’s 
why I would be, you know, I would not wish to go away 
from the General Order.

Q. Are you familiar with the President’s Commission 
on Law Enforcement and the Administration of Justice 
and the reports that were issued back in ‘67? A. Yes.

Q. One of them was called Task Force Report to 
Police? A. Right.

Q. And the other was called the Challenge of Crime 
in a Free Society? A. I have a copy of both.

Q. And both of those recommended that police de­
partments should have detailed guidelines on the use of 
deadly force? A. Right.

Q. And found that the lack of such guidelines in 
police departments— A. (Interposing) Caused problems.

Q. Was a problem? A. Right.



135

Q. All right. Well, I understand the purpose now. 
The purpose of deadly force, as far as you’re concerned 
in the category that we’re talking about, that’s non-self- 
defense or defense of others, is to capture the person 
because he * * *

* * * [60] that they’ve been a part of some changes. 
You see, many of these changes that we’re talking about 
have been, if not directly, certainly indirectly by virtue of 
our discussions and their encouragement and whatever, 
many of them.

Q. Oh, I think you’re doing an effective job. The 
people who are critical traditionally of the police depart­
ment give you high marks for progress.

MR. CALDWELL: Can we take a short recess?

RECESS

Q. (By Mr. Caldwell) Director Chapman, I just 
have a couple more short questions which Mr. Arnold has 
called to my attention, some things I want to get kind of 
specific about, and we’re not just using this as an op­
portunity to get to spend the day with you, even though 
we don’t get to spend much time with you.

We talked about the fact that there was a basis in fact 
historically for the animosity, or whatever we want to 
call it between the black community and Memphis police 
officers? A. Right.

Q. We didn’t talk about many examples of what, you 
know, what forms that basis, and I’m sure it’s a very 
complex problem, but you were aware that in 1970 the 
N.A.A.C.P. had an Ad Hoc Committee of black elected 
representatives which held hearings on the police de­
partment? [61] A. No. I was not here.

Q. That Committee’s report, you know, made a num­
ber of reported findings, one of which was that the most



136

common form of address between a Memphis police officer 
and a black person appeared to be “Nigger” or “Boy” . In 
fact Mayor Chandler said in one of these depositions that 
we’ve taken from him that he thought, you know, he 
hoped this—this was, I guess the Wylie deposition back 
in ‘75, and he hoped in the future that the black com­
munity woxild come to the point where it wouldn’t view 
the police officer as just, you know, “Hey, boy, come over 
here” kind of response, but, you know, as a friend. And 
I suppose that’s your goal.

But those kinds of things are the things we’re talking 
about which have given the relationship a basis in fact, 
you know, the “Hey, boy, come over here” kind of ap­
proach. A. Yes, although really I think that’s an over­
simplification. I think the relationship between this de­
partment and the black community is a direct reflection of 
the relationship between the white and black community 
here in Memphis. I think that the “Hey, boy” syndrome ex­
tended far beyond the Memphis Police Department. It 
maybe lasted there longer, but lasted there only because 
it was perceived by the department as being accepted 
by the majority of this [62] community. I would like to 
take credit for all the changes, but I think that the changes 
are in fact reflective of what we have at least convinced 
the police officers that this community expects of them 
and the fact that they belong to the community. I mean 
that literally, both black and white.

So I think that you could take those problems and 
work them into that context, but I think that that’s an over­
simplification of the real problem.

Q. The real problem is the community problem be­
tween the white and black communities? A. Yes.

Q. And of course, during most of the time we’re 
talking about the police department was all white, or 
virtually all white? A. Certainly representative of the 
white majority.



137

Q. And it s still disproportionately white but you’ve 
made some fairly significant employment and promotional 
gains in the last few years, is that correct? A. Well, 
yes. But of course, and I suppose some people would 
argue this. I think that the real key is the perspective 
on the part of the individual police officer as to what 
his responsibilities are and his personal vices, prejudices, 
feelings may not enter into the performance of his duties 
professionally any more than the bias of an attorney, the 
[63] bias of any doctor can enter into his if they’re going 
to be the professionals that they claim to be. I think that 
the individual police officer has at last come to the reali­
zation that he is in fact the servant of this entire com­
munity and that this department belongs to the entire 
community. And I think that these are the real keys, not 
the racial make-up of the department, although I think 
that the racial make-up of the department in retrospect 
was reflected in the original problems mentioned. I think 
that the racial make-up of the department is important, 
but I think that in terms of what you’re talking about 
and those problems, I have had equal problems with the 
black officers in terms of the black officers trying to out 
red-neck the white officers, and that’s a very poor way 
to put it, but I mean that’s literally what we had. So 
what we need is a realization on the part of all officers, 
black, white, male or female, of what their role is, and 
of course, that’s what we’ve tried to do.

Now, I’m not saying that we’ve completed that goal 
one hundred percent, and I don’t think that we will over 
a period of years because I think attitude changes are 
slow in coming, but I think we’re on the road, and I think 
that they do realize at this point. Whether they do it 
in practice or not, by golly they realize what they’re sup­
posed to do and they know, just as they found out the 
other day, they know [64] that when they are caught not



138

doing that, action—remedial action will be taken. So I 
don’t know—I’ve talked around the bush, but I dislike 
the thing of saying the racial make-up of the department 
solves the problems.

Q. I find your answer acceptable, that the racial 
make-up of the department— A. (Interposing) It’s a 
fact. It’s a fact.

Q. (Continuing) —and what was going on in the com­
munity, and in the community law enforcement was used 
primarily as something for white people and black people 
were treated as second class citizens historically, is that 
correct? A. Yes, I think we could say that.

Q. Your answer sort of prompts another question 
on a sort of different level, but you talked about you 
thought now one of the most important things you were 
doing in terms of bringing officers into line with what 
you want them to be and what the community wants them 
to be is their perception of the Command Staff, and what 
their policies are, and how important that is, to com­
municate with the officer on the beat? A. Right.

Q. And this is also why policy should be written as 
opposed to word of mouth and unwritten sorts of policies? 
[65] A. Right.

Q. So that it will be clear that the people in charge 
of law enforcement have this as their policy and that 
you’re supposed to be carrying out that policy, isn’t that 
correct? A. Right.

Q. And when you talk about this superiority of writ­
ten policies as opposed to word of mouth policies, it’s es­
sentially that kind of thing that we’re talking about? A. 
Yes. The slipped con.

Q. The what? A. Slipped con. Word of mouth.
Q. You were talking about this unwritten policy, I 

don’t know whether that was your word or mine, but 
your feeling was when you developed this policy last sum-



139

mer, this new General Order on deadly force, now as I 
understand you didn’t develop this policy, it’s sort of a 
combination of all of the previous policies? A. It’s evolu­
tionary.

Q. Evolutionary. But your understanding from the 
people you talked to was that it had always been sort of 
an unwritten policy that you shouldn’t shoot at juveniles? 
A. It’s not my impression. That is a fact that that was 
the general impression in this department. Once again, 
when you talk about an unwritten policy you can not say 
for [66] an absolute fact that every person in the depart­
ment sees it or understands it that way, and I suspect that 
you could find as many variations of that part of it as you 
could any other, but there is no question—from a variety 
of sources that that is what it was supposed to be. Whether 
it was understood that way by everybody I couldn’t say.

Q. Now, the sources you’re talking about— A. (In­
terposing) We didn’t come up with that as a revolution­
ary new thing. In other words, my instructions to Kenon 
were to take everything, written and unwritten, and to 
present it to us, and then for us to sort it out and say “We’ll 
have this and not have that.” Basically we wound up with 
the exact same thing except some portions were perhaps 
more minutely gone into than they had before, almost to 
the point of change. In my opinion they weren’t changed. 
In someone else’s opinion they might say they were changed, 
because I suspect you could find someone on the subject 
of juveniles that said, “Well, yeah, it wasn’t the policy 
to shoot juveniles in this, that and the other situations, but 
other ones it was.” But nevertheless, that’s just a problem 
which you mentioned in terms of unwritten policy.

Q. The people you got this general impression from 
were your Command officers, people who had been around 
a long time? A. Command Staff plus Kenon and I don’t— 
as I say, * * *

♦ ♦ ♦



140

MEMPHIS D EAD LY FORCE POLICY 
DATED FEBRU ARY 5, 1974

MEMPHIS POLICE DEPARTMENT 
123 Adams Avenue 

Memphis, Tennessee 38103

GENERAL ORDER

Number: 5-74 Date: 5 February 1974

Subject: USE OF FIREARMS AND DEADLY FORCE

1. PURPOSE.

To define circumstances under which DEADLY 
FORCE and NON-DEADLY FORCE may be used to pre­
vent the commission of an offense and to effect an arrest.

2. BACKGROUND

a. Definitions.

As used in this order, DEADLY FORCE means the 
discharge of a firearm; or the use of force by other 
means calculated to inflict serious bodily injury or 
death.

NON-DEADLY FORCE means the use of force by 
methods, including a night stick or similar weapon, 
not calculated nor intended to inflict serious bodily 
injury or death.

b. Applicability.

The procedures defined in this order apply to the 
use of firearms under the following circumstances:

(1) Situations involving the use of firearms by 
departmental personnel in the line of duty in­



141

volving the prevention of an offense or apprehen­
sion of an offender whether or not death or a 
wounding occurs as a result.

(2) In any case involving the accidental or negli­
gent discharge of firearms involving departmental 
personnel in the line of duty not covered under 
sub-paragraph (1) above.

3. ACTION.

a. Non-deadly Force.

An officer may use NON-DEADLY FORCE when 
it is necessary to:

(1) Effect an arrest;

(2) Prevent the escape from custody of a person 
who is reasonably suspect of having committed an 
offense; or to

(3) Defend one’s self or another in cases not in­
volving serious bodily injury or death.

b. Deadly Force.

DEADLY FORCE may be used in the following 
circumstances only after all other reasonable means to 
apprehend or otherwise prevent the offense have 
been exhausted:

(1) Self-Defense.

An officer may use DEADLY FORCE when 
it is in the defense of himself or another from 
serious bodily injury or death and the threat of 
serious bodily injury or death is real and im­
mediate.



142

(2) Felonies Involving the Use or Threatened Use 
of Physical Force.

An officer may use DEADLY FORCE when 
the offense involves a felony and the suspect uses 
or attempts to use or threatens the use of physical 
force against any person.

(3) Other Felonies Where Deadly Force is Au­
thorized.

After all reasonable means of preventing or 
apprehending a suspect have been exhausted, 
DEADLY FORCE is authorized in the following 
crimes.

(a) Kidnapping

(b) Murder in the 1st or 2nd degree

(c) Manslaughter

(d) Arson (Including the use of firebombs)

(e) Rape

(f) Assault and battery with intent to car­
nally know a child under 12 years of age

(g) Assault and battery with intent to com­
mit rape

(h) Burglary in the 1st, 2nd, or 3rd degree

(i) Assault to commit murder in the 1st or 
2nd degree

(j) Assault to commit voluntary manslaugh­
ter

(k) Armed and simple robbery



c. Use of Deadly Force Prohibited.

The use of DEADLY FORCE is prohibited when:

(1) Arresting a person for any misdemeanor of­
fense; or

(2) Effecting an arrest of any person for escape 
from the commission of any misdemeanor offense.

d. Use of Firearms Prohibited.

(1) As warning shots;

(2) From any moving vehicle or to stop any 
fleeing vehicle, except in cases of self-defense or 
cases involving:

(a) Murder in the 1st or 2nd degree

(b) Rape

(c) Assault and battery with intent to car­
nally know a child under 12 years of age

(d) Armed or simple robbery

(3) In any case where an officer does not have 
a clear field of fire and cannot be reasonably cer­
tain that only the suspect will be hit and that the 
potential for harm to innocent persons or their 
property is minimal.

e. Notification Procedures.

(1) Once the situation is under control, any mem­
ber who discharges a firearm in the line of duty will 
immediately report the fact to the Dispatcher who 
will have the cognizant watch or squad commander 
notified. The latter will inform the precinct or bu­
reau commander of the event, without delay. As soon 
as practicable, the officer who fired a weapon will

143



144

submit a written narrative of the circumstances, via 
the chain of command, to the Chief of Police, with 
copies to the Senior Member of the Firearms Review 
Board and to the Commanding Officer of the Firing 
Range. In addition. Form F2100.149 shall be filled out 
and forwarded to the Firing Range.

(2) In any case resulting in death or wounding, 
the cognizant watch or squad commander, or his desig­
nated representative, will proceed to the scene and will 
relieve the officer (s) concerned pending completion 
of the inquiry that will be conducted by the Firearms 
Review Board. In addition, the Dispatcher will notify 
the Homicide Squad and the Internal Affairs Bureau 
as rapidly as possible. Preservation of the scene will 
be the responsibility of the senior commander present.

4. SELF-CANCELLATION.

This order shall remain in effect until its provisions 
have been incorporated into the department’s Manual of 
Policies, Procedures and Rules and Regulations.

/s /  J. W. Hubbard 
J. W. Hubbard

Distribution: A



145

MEMPHIS DEADLY FORCE POLICY 
DATED JULY 16, 1979

MEMPHIS POLICE DEPARTMENT 
123 Adams Avenue 

Memphis, Tennessee 38103

GENERAL ORDER

NUMBER:

SUBJECT:

5-79 Date: 16 July 1979
DEADLY FORCE POLICY

1. PURPOSE.

To establish uniform policies regarding the use of 
deadly force by members of this department and to es­
tablish procedures for the investigation and review of 
police shooting incidents. This order rescinds General 
Orders 18-76, 13-76, 13-77, 4-74, and 72-6 and Command 
Bulletin 9-77.

2. ACTION.

a. USE OF DEADLY FORCE 

Definitions:

(1) DANGEROUS FELONY - A dangerous felony 
is any felony wherein the suspect has used, 
threatened to use, or attempted to use deadly 
force in the commission of a crime. Dangerous 
felonies include the following crimes:

(a) Kidnapping

(b) Murder in the 1st or 2nd degree

(c) Manslaughter

(d) Arson



146

(e) Criminal Sexual Assault, 1st, 2nd, or 3rd 
degree (Rape and Attempt Rape)

(f) Aggravated Assault

(g) Robbery

(h) Burglary, 1st, 2nd, or 3rd degree

(i) Any attempt to commit the above crimes.

(2) DEADLY FORCE - That amount of force that 
is sufficient to, intended to, or may be rea­
sonably expected to inflict serious bodily in­
jury and/or death. This includes the dis­
charge of any firearm, at, near, or in the di­
rection of any individual.

(3) JUVENILE - Any person under the age of 
eighteen (18) years.

(4) REASONABLE BELIEF - Such belief as 
would appear reasonable to the ordinary and 
prudent police officer of similar experience 
in like circumstances. Such belief is not rea­
sonable if the officer is reckless or negligent 
in having such belief or in acquiring or failing 
to acquire any knowledge or belief of fact or 
of law which is material to the justifiability 
of his use of force.

(5) EXHAUSTION OF ALL OTHER REASON­
ABLE MEANS - All other reasonable means 
have been exhausted when an officer has 
tried to control conflict by using all alternate 
methods other than deadly force; however, all 
other reasonable means may be considered 
to have been exhausted when an officer an­
alyzes a set of circumstances and honestly and



147

reasonably concludes that any other means 
will be ineffective, useless, or hazardous to 
the officer or some innocent third party. In 
order to qualify as having exhausted all other 
reasonable means, the officer must be able to 
show that his use of deadly force was im­
mediately necessary. The officer must also 
have communicated his identity and purpose 
to the suspect, unless these facts are already 
known by the suspect or cannot reasonably 
be made known to the suspect under the 
circumstances. In deciding whether the use 
of deadly force is reasonably necessary, the 
officer must consider whether later action on 
his part could eliminate the immediate need 
for deadly force.

The law in the State of Tennessee which regu­
lates whether or not an officer has exhausted 
all other reasonable means is best illustrated 
by Reneau v. State, 70 Tenn. 720 (1879). In 
this case the Tennessee Supreme Court ex­
amined a situation wherein a constable and 
a guard were transporting a prisoner to the 
Jefferson County Jail when the prisoner broke 
and ran in an attempt to escape. Neither of 
the officers ran after the prisoner. Instead, 
after commanding the prisoner three (3) times 
to halt without being obeyed, the constable 
fired two (2) shots at the prisoner. The con­
stable was convicted of manslaughter and the 
Supreme Court upheld this conviction and 
laid down this rule for the State of Tennessee:

An officer having a prisoner in custody
who attempts escape will be excused for



148

killing him if he cannot be otherwise re­
taken, but if he can be otherwise retaken 
in any case without resort to such harsh 
measures, it will be at least manslaughter 
to kill him. The officer doubtless acted 
under the belief that erroneously prevails 
as to the rights of a public officer, that 
is, that he may lawfully kill a prisoner 
if he fails to obey his command to halt. 
This is a very erroneous and very fatal 
doctrine and must be corrected. Officers 
should understand that it is their duty 
to use such means to secure their prison­
ers as will enable them to hold them in 
custody without resorting to the use of 
firearms or dangerous weapons and that 
they will not be excused for taking life 
in any case, where, with diligence and 
caution, the prisoner could otherwise be 
taken.

This earlier Tennessee law has since been applied 
in many other cases involving the use of deadly 
force by police officers and is equally applicable 
to situations where an attempt is being made to 
apprehend a fleeing felon. The Tennessee Su­
preme Court in Scarbrough v. State, 76 S. W. 2d 
106, (1934), specifically applied the above rule 
of law to cases involving fleeing felons. The court 
said:

The law does not clothe an officer with au­
thority to arbitrarily judge the necessity of 
killing, and such a course must be a last 
resort; and whether or not there was a neces­



149

sity for killing, and the reasonableness of the 
grounds upon which the officer acted are 
questions of fact for a jury. Killing in flight 
is excusable only when it is shown that the 
felon cannot be ultimately taken by less 
drastic means.

Deadly force may be used in the following circum­
stances after all other reasonable means of ap­
prehension or prevention have been exhausted;

(1) In self-defense where the officer has been at­
tacked with deadly force or is being threatened 
with the use of deadly force.

(2) In defense of others where a third party has 
been attacked with deadly force or is being 
threatened with the use of deadly force or is 
in danger of serious bodily injury or death 
during the actual commission of a crime 
against his person.

(3) To prevent the commission of a dangerous 
felony in progress.

(4) To apprehend a suspect fleeing from the com­
mission of a dangerous felony when an of­
ficer has witnessed the offense or has suf­
ficient information to know as a virtual cer­
tainty that the suspect committed the offense.

(5) To kill an animal which poses a direct threat 
to the safety of the officer or other persons. 
However, the Ordnance Section should be 
called to handle such a matter unless the 
danger is immediate.



150

c. USE OF DEADLY FORCE PROHIBITED

The use of deadly force is prohibited in the fol­
lowing circumstances:

(1) To apprehend or arrest a person for a mis­
demeanor offense.

(2) To effect the arrest of any person for escape 
from the commission of any misdemeanor 
offense.

(3) As warning shots.

(4) To apprehend or arrest a person known to be 
or believed to be a juvenile unless the use 
of deadly force is immediately necessary in 
the defense of the officer’s life or of another 
person’s life when all other reasonable means 
have been exhausted. The officer’s knowledge 
or belief of a person’s age may be based upon 
factors such as the officer’s previous knowl­
edge of the person, his observations of the 
person’s appearance, or upon reliable informa­
tion given to him by other persons.

(5) To apprehend or arrest a person fleeing from 
a felony which is not a dangerous felony. 
This includes felonies such as auto theft, 
larceny, embezzlement, fraud, burglary of an 
auto, or any other felony which does not 
involve the use of deadly force, attempted 
use of deadly force, or threatened use of 
deadly force.

(6) From or at any moving vehicle except in a 
case where a dangerous felony has been com­
mitted in the officer’s presence and the of­
ficer has determined that there is a much



151

greater threat to innocent lives by not using 
deadly force. In making this determination, 
the officer must consider the consequences 
of stray shots endangering innocent parties 
and must consider the consequences of the 
vehicle going out of control at a high rate of 
speed. Officers should be extremely cautious 
in using deadly force in self-defense when the 
deadly force used by the other person is an 
automobile, and the other person is trying to 
get away. The suspect’s intentions are usually 
ambiguous, and the officer can usually escape 
harm at least as well by evading the vehicle 
as he can be standing his ground and firing 
at the oncoming vehicle. An officer almost 
never has a safe, effective shot at a moving 
vehicle. This is particularly true when an 
officer is involved in a high speed chase and 
is shooting from a moving vehicle.

(7) In any other case where the officer does not 
have a clear field of fire and cannot be vir­
tually certain that only the suspect will be 
hit and that the potential for harm to innocent 
persons is minimum.

d. NOTIFICATION PROCEDURES WHEN WEA­
PONS ARE FIRED

When any officer of the Memphis Police Depart­
ment discharges any firearm, whether on duty or 
off duty, the officer will immediately report the 
incident to the dispatcher who will have the 
cognizant Watch or Squad Commander notified. 
This Commander will proceed to the scene of the 
shooting and will begin an immediate investigation



152

and notify the precinct or bureau commander of 
the incident. The Commander will prepare a 
Supervisor’s Shooting Incident Report (Attach­
ment 1), and will also have the officer prepare a 
Firearms Use Report (Form-2100.149, Attachment 
2). The Commander will also request a Crime 
Scene Squad unit to process the scene if neces­
sary. The Commander on the scene may also 
request investigative assistance from the Inves­
tigative Services Division if said Commander feels 
that it is necessary.

In all shooting incidents where a suspect, other 
officer, or other citizen is wounded or killed, the 
Watch or Squad Commander will request that 
both Crime Scene and the investigative Services 
Division conduct an on-the-scene investigation. 
The Commander in such cases is to immediately 
relieve the involved officer of duty pending the 
completion of the preliminary investigation. The 
Commander will notify the on duty or on call 
Staff Commander, and a decision will be made as 
to the necessity for notifying the Police Legal 
Advisor and the Shelby County Attorney General’s 
Office for additional investigation.

e. REVIEW PROCEDURES

All reports, including the Firearms Use Report, 
Supervisor’s Shooting Incident report. Crime 
Scene report, and General Investigation Squad 
report, copies of arrest tickets, offense reports, 
and memos will be immediately forwarded di­
rectly to the Deputy Director of Operations, prior 
to the end of the reporting officer’s tour of duty.



Upon reviewing all initial reports, the Deputy 
Director of Operations will take the following 
action:
(1) Determine that no additional administrative 

investigation is required and either notify the 
officer by letter that no action is to be taken 
or issue a statement of charges using es­
tablished disciplinary procedures.

(2) Determine that additional administrative in­
vestigation is required and assign this inves­
tigation to the Internal Affairs Bureau.

After the completion of the Internal Affairs in­
vestigation, all file material will be returned to 
the Deputy Director of Operations. The Deputy 
Director of Operations shall take one of the fol­
lowing actions:
(1) Notify the officer by letter that no action is 

to be taken; or
(2) Submit the investigative file to the Police 

Legal Advisor for review by the Attorney 
General’s Office and/or the Shelby County 
Grand Jury.

(3) Issue a statement of charges using the es­
tablished disciplinary procedures and/or 
schedule the case to be presented to the Trial 
Board for a hearing.

3. This bulletin will remain in effect until revoked or 
superceded by competent authority.

/s /  J. D. Holt 
J. D. Holt 

Deputy Director of 
Operations

Distribution - A

153



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