Petition for a Writ of Certiorari to the US Court of Appeals for the Sixth Circuit

    ,Q o //U o r

LD^Ic^JiL^
No. - f < y  ^ ^

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

MEMPHIS POLICE DEPARTMENT, et al.,
Petitioners,

vs.
CLEAMTEE GARNER, 

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

H e n r y  L. K l e in  (Counsel of Record) 
Staff Attorney
1500 First Tenn. Bank Building 
Memphis, Tennessee 38103 
(901) 523-2363

C lifford D. P ierce , J r.
City Attorney 

C harles V. H o l m e s  
Senior Assistant City Attorney 

A rthur  J. S h e a  
Deputy City Attorney 
314 - 125 North Mid-America Mall 
Memphis, Tennessee 38103 
(901) 528-2614 

Attorneys for Petitioners

E. L. M endenhall, I nc., 926 Cherry Street, Kansas City, M o. 64106, (816) 421-3030



No. ^(d

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

MEMPHIS POLICE DEPARTMENT, et al..
Petitioners,

vs.
CLEAMTEE GARNER, 

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

H e n r y  L . K l e in  (Counsel of Record) 
Staff Attorney
1500 First Tenn. Bank Building 
Memphis, Tennessee 38103 
(901) 523-2363

C lifford D. P ierce , Jr.
City Attorney 

C harles V. H o l m e s  
Senior Assistant City Attorney 

A rthur  J. S h ea  
Deputy City Attorney 
314 - 125 North Mid-America Mall 
Memphis, Tennessee 38103 
(901) 528-2614 

Attorneys for Petitioners

E. L. Msa^DENHALL, I nc ., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3030





QUESTIONS PRESENTED

The questions presented for review in this petition 
for Writ of Certiorari are:

1. Whether Tennessee Code Annotated §40-7-108 
(former §40-808), which allows police to use all necessary 
means to effect the arrest of a fleeing felony suspect, in­
cluding deadly force when all lesser means of apprehen­
sion have been exhausted, violates the Fourth and Four­
teenth Amendments of the United States Constitution be­
cause it may authorize the use of deadly force against 
what ultimately is determined to be an unarmed suspect 
fleeing from a nonviolent felony.

2. Whether a police officer’s use of deadly force, 
after all lesser means of apprehension have been ex­
hausted, to apprehend a fleeing individual suspected of 
first degree burglary, a felony under state law defined 
as the nighttime breaking and entering of a dwelling, vio­
lates the Fourth and Fourteenth Amendments of the 
United States Constitution.



II

LIST OF PARTIES

In addition to the parties named in the caption, the 
State of Tennessee, through its Attorney General, Wil­
liam M. Leech, Jr., was an intervenor-appellant to this 
proceeding in the Court of Appeals for the purpose of de­
fending the constitutionality of Tennessee Code Annotated 
§40-7-108. Pursuant to Rule 28.4 (c ) , Supreme Court Rules, 
Petitioners verify that the Sixth Circuit Court of Appeals 
has previously certified to the Attorney General of Ten­
nessee the fact that the constitutionality of the above men­
tioned statute was drawn into question in the proceedings 
below.



I ll

TABLE OF CONTENTS

Questions Presented ............................      i
List of Parties ..................................................................  ii
Table of Authorities .......................................................  iii
Opinions Below ............................................................... 1
Jurisdiction ........................................................................  2
Constitutional Provisions and Statutes Involved..........  2
Statement of the Case.....................................................  3
Reasons for Granting the Petition for Writ of Cer­

tiorari .............................................................................  8
Conclusion ........................................................................  14
Appendix .......................................................................... A1

TABLE OF AUTHORITIES

Cases

Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972), cert.
denied, 409 U.S. 1114 (1973) ..................................... 8-9

Cunningham v. Ellington, 323 F. Supp. 1072 (W.D.
Term. 1971) ....................................................................8,12

Garner v. Memphis Police Department, 600 F.2d 52
(6th Cir. 1979) ............................................................... 1

Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970) ....... 11
Johnson v. State, 173 Tenn. 134, 114 S.W.2d 819 (1938) 8
Jones V. Marshall, 528 F.2d 132 (2nd Cir. 1975) ..........  10
Love V. Bass, 145 Tenn. 522, 238 S.W. 94 (1921) ....... 8
Mattis V. Schnarr, 547 F.2d 1007 (8th Cir. 1976), va­

cated as moot per curiam suh ncmi. Ashcroft v. 
Mattis, 431 U.S. 171 (1977), rehearing denied, 433 
U.S. 915 .......................................................................... 9



IV

Monell V. Department of Social Services, 436 U.S. 658
(1978) ..................    6

Qualls V. Parrish, 534 F.2d 690 (6th Cir. 1976) ..........  9
Reneau v. State, 70 Tenn. 720 (1879) ............................  8
Scarbrough v. State, 168 Tenn. 106, 76 S.W.2d 106

(1934) ............................................................................  8
State V. Boles, 598 S.W.2d 821 (Tenn. Crim. App. 1980) 8
Wiley V. Memphis Police Department, 548 F.2d 1247 

(6th Cir. 1977), cert, denied, 434 U.S. 822 (1977) -.8 , 9,12

Constitutional Provisions

Fourth Amendment to the United States Constitution 
.................................................................2, 7, 9,10,11,12,13

Fourteenth Amendment to the United States Constitu­
tion ....................................................... 2,3,7,8,9,11,12,13

Other Authorities

Tennessee Code Annotated §40-7-108 (Tennessee’s 
Deadly Force Statute) ..................................... -.....passim



No.
In the Supreme Court of the United States

October Term, 1983

MEMPHIS POLICE DEPARTMENT, et al.,
Petitioners,

vs.
CLEAMTEE GARNER, 

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

Petitioners pray that a Writ of Certiorari issue to 
review the opinion and judgment of the United States 
Court of Appeals for the Sixth Circuit decided and filed 
in this case on June 16,1983.

OPINIONS BELOW

The memorandum opinion of the District Court for 
the Western District of Tennessee, Western Division, filed 
September 29, 1976 has not been officially published, and 
appears in the Appendix at Al. The opinion of the 
Sixth Circuit Court of Appeals filed June 18, 1979, revising 
the District Court judgment and remanding the case against 
the City of Memphis for reconsideration by the District 
Court is reported at 600 F.2d 52 and appears in the Appen­
dix at A15. The memorandum opinion of the District 
Court for the Western District of Tennessee, Western Divi-



sion, filed February 29, 1980, has not been officially pub­
lished, and appears in the Appendix at A20. Upon 
reconsideration, the District Court filed an opinion on July 
8, 1981, which appears in the Appendix at A31. The 
opinion of the Sixth Circuit Court of Appeals filed June 
16, 1983 reversing the District Court judgment and re­
manding the case for further proceedings is reported at 
710 F.2d 240, and appears in the Appendix at A40. 
The order of the Sixth Circuit Court of Appeals denying 
the Petitioners’ petition for rehearing with a suggestion 
that the petition be heard by the court sitting en banc 
was filed September 26, 1983, and has not been officially 
published. It appears in the Appendix at A58.

JURISDICTION

The judgment of the Sixth Circuit Court of Appeals 
was entered June 16, 1983. On September 26, 1983, the 
court filed an order denying the petitioners’ timely request 
for a rehearing with a suggestion that the petition be 
heard by the court sitting en banc. This petition was 
filed within ninety (90) days of the denial of rehearing.

CONSTITUTIONAL PROVISIONS AND 
STATUTES INVOLVED

The constitutional provisions involved in this case are 
the Fourth and Fourteenth Amendments to the United 
States Constitution. Those amendments read as follows, 
in pertinent part:

AMENDMENT IV

The right of the people to be secure in their per­
sons, houses, papers, and effects, against unreasonable



searches and seizures, shall not be violated, and no 
warrants shall issue, but upon probable cause sup­
ported by oath or affirmation, and particularly describ­
ing the place to be searched, and the persons or things 
to be seized.

AMENDMENT XIV

Section 1. All persons born or naturalized in the 
United States, and subject to the jurisdiction thereof, 
are citizens of the United States and of the State 
wherein they reside. No State shall make or enforce 
any law which shall abridge the privileges or immuni­
ties of citizens of the United States; nor shall any 
State deprive any person of life, liberty, or property, 
without due process of law; nor deny to any person 
within its jurisdiction the equal protection of the laws.

The State statutory provision involved in this case 
is Tennessee Code Annotated §40-7-108. Tennessee Code 
Annotated §40-7-108 provides in Volume 7 (formerly codi­
fied as §40-808) at page 55.

Resistance to Officer - If after notice of the inten­
tion to arrest the defendant, he either flees or forcibly 
resists, the officer may use all the necessary means 
to effect the arrest.

STATEMENT OF THE CASE

On the night of October 3, 1974, an individual broke 
a window at the rear of a residence within the city limits 
of Memphis, Tennessee, and entered the house. Police 
were called by a neighbor, and two (2) officers were 
dispatched to the scene. When they arrived, the officers 
Were advised by the neighbor only that ''they are breaking



in” (emphasis Judge Wellford’s). While one officer re­
ported their arrival to the dispatcher, the other went to­
ward the rear of the house. As he approached the corner 
of the house, he heard the rear door slam and, rounding 
the corner, saw with the aid of his flashlight the figure 
of a black male crouching next to the fence at the rear 
of the residence approximately thirty to forty feet (30- 
40') away. The officer could not tell whether the man 
was armed.

The officer shouted “halt” and identified himself; after 
a momentary pause, the suspect sprang to the top of the 
fence, extending half his body over the fence, upon which 
the officer fired, striking the suspect in the head. The 
officer believed there was very little opportunity of iden­
tification of the suspect for purpose of future arrest if 
he escaped; there were several obstacles, including a 
clothesline and other objects outlined in the dark, between 
the officer and the suspect, making pursuit almost certainly 
futile, and the officer was unfamiliar with the location 
and the neighborhood.

The suspect, who was fatally wounded, turned out 
to be a fifteen-year-old who was unarmed at the time. 
A small amount of money and jewelry, shown to have 
come from the residence, was on his person. It was also 
later learned that the residence was unoccupied at the 
time of the break-in, although this was not known to the 
officers.

On April 8, 1975, a civil rights action was brought 
by Cleamtee Garner in the United States District Court 
for the Western District of Tennessee pursuant to 42 U.S.C. 
§§1981, 1983, 1985, 1986, and 1988 and 28 U.S.C. §§1331 
and 1343(3), to seek redress for the fatal shooting of his 
son, Edward Eugene Gamer, by an officer of the Memphis 
Police Department. Named as defendants were the Mem-



phis Police Department; City of Memphis, Tennessee; 
Wyeth Chandler, Mayor of Memphis; Jay W. Hubbard, 
Director of the Memphis Police Department, and E. R. 
Hyman, Police Officer of the City of Memphis.

The complaint alleged that defendant Officer Hyman 
violated the constitutional rights of Edward Eugene Garner 
when he shot and killed Garner in an attempt to apprehend 
him while fleeing from a private residence in Memphis. 
The other defendants were sued on grounds that their 
failure to exercise due care in the hiring, training, and 
supervision of defendant Hyman made them equally re­
sponsible for Gamer’s death. All defendants were also 
sued on the grounds that use or authorization to use the 
“hollow point” bullet further caused the deprivation of 
Garner’s rights under the Constitution and laws of the 
United States.

On September 18, 1975, defendants filed their Answer 
denying liability, any violation of the Federal Civil Rights 
Statutes, and any deprivation of the deceased’s constitu­
tional rights. In further answering, defendants alleged 
that the actions of defendant Officer Hyman were governed 
by Tenn. Code Ann. §40-7-108.

Trial was held on August 2-4, 1976, without the inter­
vention of a jury. At the conclusion of the Plaintiff’s 
proof on August 4, 1976, the district court granted a di­
rected verdict for defendants Hubbard and Chandler, and 
a partial directed verdict as to the City of Memphis and 
the Memphis Police Department with respect to hiring 
practices.

On September 29, 1976, the district court found in 
favor of all defendants on all issues. On appeal, the United 
States Court of Appeals for the Sixth Circuit affirmed 
the judgment of the district court dismissing the case



against the individual defendants. However, the case was 
remanded as against the City of Memphis for reconsidera­
tion in light of Monell v. Department of Social Services, 
436 U.S. 658 (1978). The court instructed the district 
court to consider the following questions, among others, 
on remand:

1. Whether a municipality has qualified immunity or 
privilege based on good faith under Monell.

2. If not, is a municipality’s use of deadly force under 
Tennessee law to capture allegedly nondangerous 
felons fleeing from nonviolent crimes constitution­
ally permissible under the Fourth, Sixth, Eighth, 
and Fourteenth Amendments?

On remand, the trial court ordered memoranda and 
oral argument on the issue of whether the trial should 
be reopened. By order dated February 29, 1980, the court 
denied further hearings and dismissed the case on the 
merits, holding that the constitutional claims had already 
been fully adjudicated. Because there had been no consti­
tutional violation, the holding of Monell that cities could 
be liable for violations occurring pursuant to a policy 
or custom of the city did not require a different result. 
Plaintiff’s motion for reconsideration was granted and he 
was allowed to submit further briefs and make an offer 
of proof. The Judge considered the offer of proof and 
once again ruled against plaintiff in a written opinion 
dated July 8, 1981. The court held that the wisdom of 
a statute permitting the use of deadly force against all 
fleeing felons was a matter of policy for the legislature 
rather than the judiciary, and that the Tennessee statute 
was neither unconstitutional on its face, nor as applied 
by the police officer in this case.



7

An appeal was again taken to the Sixth Circuit Court 
of Appeals. In its opinion the Court of Appeals deter­
mined that Tenn. Code Ann. §40-7-108 was violative of 
the Fourth and Fourteenth Amendments to the United 
States Constitution. The Court found that insofar as Tenn. 
Code Ann. §40-7-108 would permit the use of deadly 
force against a nondangerous felony suspect fleeing a non­
violent felony, the statute permitted an unreasonable and 
excessive seizure of the person. The Court went on to 
hold that the due process provisions of the Fourth and 
Fourteenth Amendments prohibit deadly force except 
where the officer has probable cause to believe that the 
felon is dangerous or has committed a violent crime. The 
case was remanded for further proceedings consistent with 
the opinion.



8

REASONS FOR GRANTING CERTIORARI

Tennessee iCode Annotated §40-7-108 (former §40- 
808), Tennessee’s “Deadly Force” Statute, is merely a codi­
fication of the common law. Wiley v. Memphis Police 
Department, 548 F.2d 1247 (6th Cir. 1977), cert, denied, 
434 U.S. 822(1977); Cunningham v. Ellington, 323 F. Supp. 
1072 (W.D. Tenn. 1971). As interpreted by the Tennessee 
courts the statute permits an officer to use force that 
may result in death in preventing the escape of a person 
he is attempting to arrest if (1) he reasonably believes 
that the person has committed a felony, (2) he notifies 
the person that he intends to arrest him, and (3) he reason­
ably believes that no means less than such force will 
prevent the escape. State v. Boles, 598 S.W.2d 821 (Tenn. 
Crim. App. 1980); Johnson v. State, 173 Tenn. 134, 114 
S.W.2d 819 (1938); Scarbrough v. State, 168 Tenn. 106, 
76 S.W.2d 106 (1934); Love v. Bass, 145 Tenn. 522, 238 
S.W. 94 (1921); and Reneau v. State, 70 Tenn. 720 (1879).

The constitutionality of Tenn. Code Ann. §40-7-108 
was first considered in the case of Cunningham v. Ellington, 
supra. Plaintiff therein contended that the statute was 
unconstitutional on its face because it permitted the use 
of cruel and unusual punishment in violation of the Eighth 
Amendment; that it was unconstitutionally overbroad; that 
it was an unconstitutional incursion with respect to a per­
son’s rights to trial by jury, confrontation of witnesses 
and assistance of counsel, and that it violated the due 
process clause of the Fourteenth Amendment. After con­
sidering each argument, the three-judge panel concluded 
that Tenn. Code Ann. §40-7-108 was not unconstitutional 
on its face.

This statute was further considered by the United 
States Court of Appeals for the Sixth Circuit in Beech



9

V. Melancon, 465 F.2d 425 (6th Cir. 1972), cert, denied, 
409 U.S. 1114 (1973); Qualls v. Parrish, 534 F.2d 690 (6th 
Cir. 1976) and Wiley v. Memphis Police Department 
supra. In each of these cases the Court of Appeals found 
the statute to be constitutionally sound.

In Wiley, the most recent case to consider the statute’s 
constitutionality, the plaintiff alleged that the Memphis 
Police Department’s deadly force policy, which conformed 
with Tenn. Code Ann. §40-7-108, violated, among others, 
the Fourth and Fourteenth Amendments to the United 
States Constitution. In upholding the constitutionality of 
the statute, the Court stated:

The Eighth Circuit is the only Court to our knowl­
edge which has ever held that such a statute, which 
is so necessary even to elementary law enforcement, 
is unconstitutional. It extends to the felon unwar­
ranted protection, at the expense of the unprotected 
public.

548 F.2d at 1252.

The Eighth Circuit case referred to by the Court in 
Wiley is, of course, Mattis v. Schnarr, 547 F.2d 1007 (8th 
Cir. 1976), vacated as moot per curiam sub nom. Ashcroft 
V. Mattis, 431 U.S. 171 (1977), rehearing denied, 433 U.S. 
915, which found Missouri’s deadly force statute uncon­
stitutional under the Fourteenth Amendment as a denial 
of substantive due process.

With this precedential background in mind, the Court 
of Appeals herein decided to embark upon a new course 
and hold Tenn. Code Ann. §40-7-108 unconstitutional as 
violating the Fourth and Fourteenth Amendments to the 
United States Constitution, citing virtually no authority 
to support its conclusion. The Court, after reviewing the 
origin, development, and current status of the common



10

law rule concerning the use of deadly force to apprehend 
a fleeing felon, declared Tenn. Code Ann. §40-7-108 and 
those statutes similar to it unconstitutional. This decision 
conflicted not only with previous decisions of the Sixth 
Circuit, but also other circuits.

In Jones v. Marshall, 528 F.2d 132 (2nd Cir. 1975), 
the United States Court of Appeals for the Second Circuit 
upheld the validity of the Connecticut common law con­
cerning the use of deadly force, which is virtually identical 
to Tenn. Code Ann. §40-7-108. There the officer, while 
in pursuit of three subjects suspected of auto theft, shot 
and killed plaintiff after he failed to heed the command 
to halt. It was later determined that none of the fleeing 
felony suspects was armed or posed a threat to third per­
sons. In upholding the validity of Connecticut’s deadly 
force rule, the Court found that the Constitution does not 
require a restriction of the use of deadly force to nondan- 
gerous felony suspects. The Court concluded that the 
state legislature was the proper place for the plaintiff 
to turn if he wished to change the common law rule 
which permitted the use of deadly force to effect an arrest. 
(As noted by the Court, shortly after the facts in Jones 
occurred, the Connecticut legislature indeed chose to retain 
and codify the Connecticut common law rule concerning 
the use of deadly force.)

In its opinion herein the Sixth Circuit Court of Appeals 
holds that the use of deadly force by police to apprehend 
a fleeing subject can only meet Fourth Amendment stan­
dards upon a finding of probable cause on two levels: 
(1) police must have probable cause to believe that a 
felony has been committed and that the person fleeing 
committed it, i.e. probable cause to arrest, and (2) in 
order to justify the use of deadly force, police must have



11

probable cause to believe the fleeing suspect is dangerous 
or has committed a violent crime.

The Court of Appeals admitted in its opinion that 
there appears to be virtually no authority for the proposi­
tion that the Fourth Amendment imposes limits on the 
use of deadly force to capture a suspected fleeing felon. 
While the Court cites the case of Jenkins v. Averett, 424 
F.2d 1228 (4th Cir. 1970), for this proposition, a reading 
of Jenkins shows the reliance to be misplaced. In Jenkins 
the Court found that the officers, in shooting Jenkins, 
had unreasonably “seized him” because they had no prob­
able cause to arrest him using any level of force. It 
is clear that the very attempt to apprehend Jenkins, with­
out probable cause to interfere with his freedom of move­
ment, was the constitutional violation subjecting the officer 
to liability, not the level of force used.

Petitioners further contend that the Sixth Circuit er­
roneously held that Tenn. Code Ann. §40-7-108 violates 
the Fourteenth Amendment to the United States Constitu­
tion in failing to recognize the valid state interests encom­
passed by the statute, and in failing to consider the pro­
cedural safeguards which govern the application of this 
statute and are designated to prevent the arbitrary and 
unnecessary use of force by police officers.

The constitutionality of Tenn. Code Ann. §40-7-108 
raises important and recurring issues concerning the use 
of deadly force by law enforcement officials throughout 
the country. The questions raised herein have not been 
addressed by this Court to date. Without direction from 
this Court concerning the constitutionality of Tenn. Code 
Ann. - §40-7-108, and other statutes similar to it, the de­
cision below will create much confusion among law en­
forcement officers and legislators.



12

Petitioners contend that the modification made by the 
Court of Appeals concerning the use of deadly force in 
the State of Tennessee is an unjustifiable encroachment 
upon legislative functions. Because the issue of when 
deadly force may be used to apprehend a fleeing felon 
is one involving questions of public policy, it is properly 
entrusted to the legislature rather than the judiciary. As 
stated in Wiley v. Memphis Police Dept., supra, 548 F.2d 
at 1252:

To abolish the use of deadly force altogether is 
to deprive the state and its citizens of their rights 
and securities, safety and a feeling of protection. To 
pick and choose those crimes warranting the applica­
tion of these statutes is the duty of the legislature. 
It involves a determination of the effect and serious­
ness of crimes on society and such a determination 
lies exclusively within the province of the legislative 
branch. It is not the role of a federal judge to legislate 
for the people of the state. (Quoting from Mattis v. 
Schnarr, 404 F. Supp. 643 at 651 (E.D. Mo. 1975))

The Sixth Circuit in this cause flagrantly contravened 
their earlier correct holding in Cunningham; matters such 
as which felonies may authorize the use of deadly force 
by a police officer against a fleeing suspect are clearly 
and properly the prerogative of the state legislature. Even 
if the holding that the Tennessee Deadly Force Statute 
is unconstitutionally overbroad in its authorization of the 
application of deadly force be upheld, the Sixth Circuit’s 
further holding that deadly force is proscribed by the 
Fourth and Fourteenth Amendments, except where there 
is probable cause to believe that the suspect is dangerous 
or has committed a violent crime, is clearly an erroneous 
application of the Constitution and amounts to legislation 
by the courts. In essence, the Sixth Circuit Court of 
Appeals is telling the Tennessee legislature to rewrite the



13

current Deadly Force Statute and, in addition, is enjoining 
any such statute which includes first degree burglary as 
an offense allowing the use of deadly force to apprehend 
a fleeing suspect. This despite the fact that the night­
time breaking and entering of a dwelling house is a crime 
so frequently associated with the commission of violence, 
regardless of whether or not the suspect is armed.

Petitioners submit that, even if the Sixth Circuit’s rejection 
of the Tennessee Deadly Force Statute be correct, the 
Court’s further holding that a State legislature may not 
include first degree burglary as a criminal offense warrant­
ing the application of deadly force to arrest a fleeing 
suspect, unless there existed probable cause to believe 
that the suspect is dangerous or has also committed a 
violent crime, is an erroneous interpretation of the Fourth 
and Fourteenth Amendments.

If the question concerning the minimum offense which 
would justify the use of deadly force is going to be de­
cided by the courts rather than by the legislature, then 
certainly it is a question that should be addressed by the 
highest court of this land.



14

CONCLUSION

For all the foregoing reasons, Petitioners pray that 
a Writ of Certiorari issue to review the judgment and 
decision of the United States Court of Appeals for the 
Sixth Circuit in this case.

Respectfully submitted,
H e n r y  L. K l e in  {Counsel of Record) 

Staff Attorney
1500 First Term. Bank Building 
Memphis, Tennessee 38103 
(901) 523-2363

C lifford  D. P iebce , Jr .

City Attorney 
C harles V. H o l m e s  

Senior Assistant City Attorney 
A rthur  J. S h ea  

Deputy City Attorney 
314 - 125 North Mid-America Mall 
Memphis, Tennessee 38103 
(901) 528-2614 

Attorneys for Petitioners



A1

APPENDIX

(Filed September 29, 1976)

IN THE
UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION

NO. C-75-145

CLEAMTEE GARNER, father and next of kin of 
Eugene Garner, a deceased minor. 

Plaintiff,
V.

MEMPHIS POLICE DEPARTMENT, et ah, 
Defendants.

MEMORANDUM OPINION

This is a civil rights action filed in April, 1975, by 
Cleamtee Garner to recover for the shooting death of his 
son, Edward Eugene Garner, on October 3, 1974. Named 
as defendants were the Memphis Police Department, the 
City of Memphis, Tennessee; Wyeth Chandler, Mayor of 
Memphis; and E. R. Hymon, Police Officer of the City 
of Memphis. Defendant Hymon was sued for having fired 
the shot that caused Garner’s death; the other defendants 
were sued on the grounds that their failure to exercise 
due care in the hiring, training and supervision of de­
fendant Hymon made them responsible for Garner’s death.

Jurisdiction was founded upon 28 U.S.C. §§ 1343(3) 
and 1331, since plaintiff alleged that the death of his son 
worked a deprivation of rights accorded Edward Eugene



A2

Garner by the Constitution and laws of the United States. 
Plaintiff cited specifically in this regard the Fourth Amend­
ment right to be free of unreasonable seizure of the body, 
the Fifth Amendment right to due process of law, the 
Sixth Amendment right to a jury trial and the Eighth 
Amendment right to be spared cruel and unusual punish­
ment, all such rights incorporated into the due process 
clause of the Fourteenth Amendment and made applicable 
to the States. 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 
1988 were also alleged to have been violated in respect 
to the cause of action asserted. A pendent claim against 
the same defendants under the Tennessee Constitution and 
laws was also alleged with respect to violation of rights 
and duties created by Tenn. Code Ann. § 40-808.^

By order of August 18, 1975, this Court ruled that 
no cause of action could lie against the Memphis Police 
Department, or the City of Memphis under 42 U.S.C. 
§ 1983 and 28 U.S.C. § 1343 (3) since they were not “persons” 
within the meaning of that statute. City of Kenosha v. 
Bruno, 412 U.S. 507 (1973) and Monroe v. Pape, 365 U.S. 
167 (1961). Jurisdiction of the Court over these defendants 
was found to have been invoked, however, under 28 U.S.C. 
§ 1331. Bivens v. Six Unknown Named Agents, 403 U.S. 
388 (1971).

FINDINGS OF FACT
1. On the evening of October 3, 1974, Edward Eugene 

Gamer broke into the Lidell Anderson home at 739 Vollin- 
tine, Memphis, Tennessee, for the purpose of committing 
a robbery. Daisey Bell Statts, 737 Vollintine, a next door 
neighbor, observed evidence of a break-in and called police. 
Although the Statts house was not the one being burglar-

1. § 40-808. ‘^Resistance to officer.—-If, after irotice of the
intention to arrest the defendant, he either flee or forcibly resist, 
the officer may use all the necessary means to effect the arrest.’’



A3

ized, the address of 737 Vollintine was given to the police. 
The police car in nearby Ward 128 manned by defendant 
Hymon and Patrolman Leslie Wright was directed to pro­
ceed to 737 Vollintine on the prowler call. Upon arriving 
at 737 Vollintine, the Memphis Police officers saw Statts 
standing on her porch pointing to the house next door. 
Defendant Hymon questioned her about the situation and 
was advised of the next door break-in; in fact, Mrs. Statts 
said, “ they are breaking in” (emphasis added). Hymon 
then returned to the squad car, grabbed his flashlight, 
advised his partner what was happening, and then pro­
ceeded south along the west side of the house at 739 
Vollintine, which faced north.

2. Patrolman Wright then moved the squad car to 
the curb, called the Police dispatcher to advise they were 
on the scene, picked up his flashlight, and moved toward 
the east side of the house. Hymon became aware that 
there was a light on inside the house as he proceeded 
down the west side towards the rear. As he approached 
the southwest corner of the house Hymon heard the back 
screen door slam and reaching the corner of the Anderson 
house, he saw a figure running from the back of the 
house to the back of the lot where a cyclone fence ex­
tended across the south boundary of the property. The 
backyard of 739 Vollintine was completely encircled by 
fencing.

3. There was a three to four foot chicken wire fence 
supported by boards which ran in a north to south direction 
along the west side of the backyard and was situated 
between Hymon and the cyclone fence, which appeared 
to Hymon in the darkness to be approximately six or 
seven feet high.  ̂ As defendant Hymon was standing

2. Actual height was about 6 feet high with pointed wire 
extending across the top.



A4

at a point near the southwest corner of the house he 
could also observe that a garbage can had been placed 
under a window on the back side of the house and the 
glass was broken out of the window in the rear; he could 
also make out a clothesline and the outline of objects 
in the backyard between him and the fleeing subject. 
Defendant Hymon shined his flashlight along the fence 
and spotted Edward Eugene Garner in a stooped position 
next to the cyclone fence near the southwest corner of 
an outbuilding located in the southeast corner of the yard 
some thirty to forty feet away. He did not appear to 
be armed, but Hjmion could not be certain of this at 
the moment.

4. Defendant Hymon immediately shouted “halt” and 
identified himself; Garner paused momentarily and then 
as defendant Hymon started in his direction and toward 
the chicken wire fence, Garner sprang to the top of the 
cyclone fence extending half of his body and his head 
over the fence when Hymon fired his service revolver 
hitting Garner in the right side of the head. The area 
to the south beyond the fence was in darkness and there 
was poor illumination in the Anderson backyard. Hymon 
was not familiar with this particular location or neighbor­
hood, having lost his way in proceeding to the site.

5. Patrolman Wright, in the meantime, had pro­
ceeded along a picket fence on the other side of the house 
and heard defendant Hymon yell “halt” in a loud voice, 
following which there was a pause. As Patrolman Wright 
approached the southeast corner of the house, he heard 
a shot; defendant Hymon then called for assistance, at 
which time Wright also flashed his flashlight along the 
fence until he picked up Garner whose body was then 
draped on the fence, the top over the southside and the 
lower half on the north still on the Anderson side. Wright 
apparently did not hear Hymon’s earlier instruction to get



A5

Gamer when he had first located him with his flashlight as 
Garner paused. An ambulance was called and Garner’s 
body was removed from the fence mortally wounded. 
Garner was transported to the hospital where he expired 
shortly after his arrival, having never fully gained con­
sciousness after being shot by Hymon. Garner was un­
armed at the time he was shot.

6. It was later determined that after breaking into 
the Anderson house, Garner ransacked the bedrooms and 
removed a ring and wallet containing a small amount of 
cash.

7. Less than two months prior to October 3, 1974, 
young Garner, then only 15 years old, was placed on 
probation by the Juvenile Court in Memphis in connection 
with an adjudication of Juvenile Delinquency stemming 
from a charge of burglary which his parents had inves­
tigated and reported. Previously, Gamer was placed on 
probation by Juvenile Court on November 1, 1971, in 
connection with a lesser charge of burglary, and he had 
also been charged with violation of curfew set by the 
Juvenile Court. Mr. Garner, the plaintiff, admitted that 
his son, Eugene, was somewhat a problem for him, par­
ticularly since he worked at night.

At the time of his death, the alcohol content in the 
blood of Edward Eugene Gamer was .09 which is just 
under the standard for adults established by Tennessee 
Law of a presumption that one is acting under the influ­
ence of an intoxicant. He was only about 5'4" tall and 
weighed probably in the neighborhood of 100 to 110 
pounds at death.  ̂ The blood alcohol content was suffi­
cient to slow his reactions.

3. Hymon, however, stated that in the circumstances of vis­
ibility Garner appeared to him to be a “black male” about 5 '6 " 
tall and about 17 or 18 years old.



A6

8. Officer Hymon, also a black as was deceased 
Garner, is a native Memphian, attended public schools 
in Memphis and received a B.S. degree in English from 
Tennessee State College, participated in athletics, worked 
in the Tennessee prison system, and is 6'4" tall. As a 
part of his police training, after joining the Memphis 
Police Department in 1973, he was given instruction in 
physical combat—use of nightstick and judo—and required 
to do physical conditioning.

9. Defendant Hymon at the time he was attempting 
to apprehend Garner could not be certain whether there 
was an accomplice in the house, or in the area, and 
whether the accomplice might be armed. The area by 
the cyclone fence in the back of the yard was not illu­
minated, and the area south of the fence was very dark 
at the time defendant Hymon was trying to apprehend 
Garner. He could detect only traces of tall underbrush 
and trees on the other side of the cyclone fence. He did 
not know the lay of the land in this area which was only 
a few blocks from the Gamer home.

10. After a full investigation of the incident of Octo­
ber 3, 1974, and a review of same by the Memphis Police 
Firearm’s Review Board, no disciplinary action was taken 
against Hymon, nor was any action taken by the Shelby 
County Grand Jury although the matter was presented 
to it. There is nothing in the record to indicate that 
defendant Hymon had any propensity toward precipitous 
or reckless use of firearms as a police officer or otherwise.

11. The training methods used and the subject mat­
ter taught at the Memphis Police Department Training 
Academy in the area of the use of firearms and deadly 
force, are generally consistent with those used by other 
police departments and the FBI Academy. Memphis Po­
lice instructors received training at the FBI Academy.



A7

They taught police to fire at the largest target present, 
usually the trunk or torso area, the ‘‘center mass” . Police 
were given instruction also by legal advisors on the 
Tennessee law with respect to the use of lethal force.

Regulations published by the Memphis Police Depart­
ment in connection with the “Use of Firearms and Deadly 
Force” effective at the time were somewhat more restric­
tive than TCA 40-808, which deals with lawful means 
by which a fleeing felon may be apprehended. A three 
judge court has ruled this statute constitutional. Cun­
ningham V. Ellington, 323 F.Supp. 1072 (W.D. Tenn. 1971). 
See Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972).

12. Prior to this tragic incident, the Memphis Police 
Department decided to make a study of various types of 
ammunition following complaints by officers that the 
“round nose” type ammunition they were issued for their 
service revolvers was not sufficiently effective in stopping 
or neutralizing individuals with whom they were con­
fronted in dangerous situations. This followed an episode 
in which a police officer was killed (and a Federal Pro­
bation Officer wounded) by an apparently berserk man 
firing at random at others. Tests were conducted by the 
Firearms’ Section of the Memphis Police Department under 
the auspices of Captain John Coletta who recommended 
a change to a “hollow point” projectile or bullet as more 
effective in “neutralizing” or incapacitating an individual 
and less likely to penetrate through a target and thus 
continue in flight to the possible harm of others.

During the term of Police Director Hubbard, the Mem­
phis Police Department thereafter, following consideration 
of the Coletta recommendation, changed to use of “hollow 
point” ammunition, specifically .38 Special Caliber Rem­
ington 125 Grain semi-jacketed hollow point. Hubbard



A8

also established a Firearms Review Board to investigate 
instances wherein police employed a firearm.

13. “Hollow point” ammunition is used by many other 
police departments throughout the United States and by 
the FBI, although it is more lethal in its effect. A key factor 
in the injury producing effect of a bullet is the part of 
the body they strike, the point of entry. The particular 
type of ammunition used by the Memphis Police had a 
greater wound producing potential with greater velocity 
than was formerly utilized, and was more accurate. “Hol­
low point” ammunition produces more injury than round 
nose ammunition, all other factors being equal, but State 
and Local medical examiner and County Coroner Francisco 
could not state that the type of ammunition used in this 
particular episode would have made any difference in 
bringing about Garner’s death in light of the place where 
the bullet struck and the point of entry.

14. Various persons with police experience were per­
mitted to testify as to whether or not under assumed 
circumstances it was, or not, reasonable for Hymon to 
fire his pistol at the fleeing Garner. The substance of 
such testimony was to the effect that Hymon should 
first have exhausted reasonable alternatives such as giving 
chase and determining whether he had a reasonable oppor­
tunity to apprehend him in some other fashion before 
firing his weapon. A training film was shown in evidence 
which was used in training Memphis Police Officers, such 
as Hymon, as to circumstances in which lethal force might 
properly be used.

15. There was no evidence introduced tending to 
indicate any personal involvement whatsoever by Director 
Hubbard or Mayor Chandler in the episode in contro­
versy; or in any failure on their part with respect to 
police hiring procedures regarding the employment of



A9

Hymon as a police officer. There was evidence to the 
effect that Hymon was, prior to this episode, a competent 
police officer, indeed, that he was the type person who 
was a desirable police recruit by reason of his education, 
background, ability and his race.'̂  There was no evidence 
indicating insufficient or inadequate police hiring methods 
or standards.

CONCLUSIONS
I. Since plaintiff failed to present any significant 

evidence bearing upon the personal liability of defendants 
Hubbard and Chandler, they were entitled to be dismissed 
at the end of plaintiff’s case in chief.

II. Since plaintiff failed to present any significant 
evidence as to deficient hiring procedures, claims in that 
respect as to the City of Memphis and its Police Depart­
ment should be dismissed.

III. Jurisdiction of this Court over defendant Hymon 
is established by 28 U.S.C. § 1343(3) and by 42 U.S.C. 
§§ 1983 and 1988. Monroe v. Pape, 365 U.S. 167 (1961). 
Jurisdiction of this Court over defendants Memphis Police 
Department and the City of Memphis is established by 
28 U.S.C. § 1331 and the Fourteenth Amendment.

IV. Under TCA 40-808 and under regulations of the 
Memphis Police Department issued thereunder lethal force 
may be used by police officers to apprehend persons fleeing 
from the commission of certain felonies. Reneau v. State, 
70 Tenn. 720, 31 Am. Rep. 626 (1879); Love v. Bass, 145 
Tenn. 522, 238 S.W. 94 (1921); Cunningham v. Ellington,

4. There have been previous civil rights cases filed in this 
Court by the law firms representing this plaintiff charging the 
City of Memphis and its Police Department with failure to hire 
enough black police officers and charging police bias towards 
blacks.



AlO

supra; Beech v. Melancon, supra. Burglary of a residence 
is one of the felonies covered under this statute and under 
Tennessee law, TCA 39-901. Lethal force may be re­
sorted to in order to apprehend a person fleeing from 
the commission of a burglary such as that in which de­
ceased Garner was involved, “only after all other reason­
able means to apprehend . . . have been exhausted.” 
Reneau, supra; Scarborough v. State, 76 S.W. 2d 106 
(1934); Cunningham, supra; and Beech, supra.

V. The real and principal issue in this case, then, 
is whether defendant Hymon was justified in using his 
weapon to apprehend Edward Eugene Gamer as the only 
reasonable and practicable means of apprehending him 
or preventing his escape. Garner was clearly a felon and 
Hymon could not be sure that he was only a juvenile. 
After having been ordered to halt and knowing that he 
was confronted by a police officer, Gamer recklessly and 
heedlessly attempted to vault over the fence to escape, 
thereby assuming the risk of being fired upon. Under 
the circumstances Garner was knowingly, directly and 
proximately contributing to his own injury and death, 
taking into account all factors present. There was very 
little opportunity of identification of Garner for purposes 
of future arrest if he escaped.

VI. Hymon realized there were several obstacles 
between him and Garner at the moment Garner made 
what evolved into a fatal effort to scale the chain link 
fence. He was uncertain about the time required for 
him to reach the area from which Garner made his des­
perate leap, and he was reasonably concerned about the 
remote prospects of locating Garner once he disappeared 
into the brush and undergrowth out in the reaches of 
darkness and in an area unfamiliar and unknown to
Hymon.



A ll

Hymon (and his partner), up until the moment of 
firing, had followed good police procedures in investi­
gating an apparent burglary in progress by a person or 
persons unknown, who may or may not have been armed. 
In a split second, Hymon was called upon to make a fate­
ful and difficult decision in the face of what reasonably 
appeared to be a successful effort to flee from arrest or 
apprehension from a felony scene. Hymon did not know 
whether Garner had committed only a so-called “property 
crime” or whether persons in the home which he had 
forceably entered might be or have been endangered. The 
Court concludes that Hymon was justified in thinking that 
once Garner scaled that fence, he would escape and that 
he, therefore, acted in compliance with lawful require­
ments in the use of potentially lethal force to prevent 
the escape of a fleeing felon. See Beech v. Melancon, 
supra. There was no reasonable alternative apparent if 
he were to prevent the escape or to effect the arrest.

VII. One particularly difficult aspect of this case 
was the age and size of young Garner. Hymon was called 
upon in making a reasonable decision to weigh the factor, 
together with the potentiality of inflicting a fatal wound, 
in making an arrest, in preventing an escape, under these 
circumstances. This factor, together with the eventual 
(but not then realized) fact that Garner was unarmed, 
made Hymon’s decision to fire both difficult and agon­
izing. The Court has taken these considerations into 
account in concluding, nevertheless, that Hymon acted 
within his responsibility as a reasonable police officer. 
He certainly acted without any malice, predisposition, or 
racial animus towards Garner. He also acted within gen­
eral guidelines afforded him as a Memphis Policeman, 
and the policy has been one essentially established by 
the Tennessee legislature, which has been determined to 
be a constitutionally acceptable one.



A12

VIII. The policies of the Memphis Police Depart­
ment which authorize the use of firearms to apprehend 
fleeing felons come within the general ambit of the Ten­
nessee statute (TCA 40-808). The training program of 
the Memphis Police Department which incorporates some 
of the methods, practices and procedures used by other 
police departments was at least adequate in respect to 
apprehension of resisting or fleeing felons. The City of 
Memphis and the Memphis Police Department are not 
liable to plaintiff on this basis asserted.

IX. The choice by the Memphis Police Department 
to utilize the particular type of ammunition for service 
revolvers at the time in question was undertaken after 
consideration and study. There were plausible reasons 
for its conclusion that a more effective type might be 
utilized for the protection of the police officers and in 
the general welfare, even though there was involved a 
greater potential for serious injury, severe wounding, or 
even death to an intended target in connection with its 
use. Perhaps a different type ammunition with less 
“ wound producing potential” , as Dr. Francisco described 
it, would be preferable if this Court were called upon 
to make this decision; but this is not the issue to be 
decided. Plaintiff’s counsel concedes in his memorandum 
and proposed conclusions that the Court must rather 
determine whether the Memphis Police Department’s deci­
sion to utilize the “hollow point” bullet with a high 
velocity is such conduct as to “shock the conscience of 
the Court” , citing Rochin v. California, 343 U.S. 165 (1952), 
the “stomach pumping” case. Interestingly, Justice 
Douglas, a renowned civil libertarian, in a concurring 
opinion observed

“Yet the Court now says the rule that a majority of
states have fashioned (to admit such evidence of



A13

narcotics pumped from the stomach) violates the 
‘decencies of civilized conduct’ to that I cannot a^ree.” 
432 U.S. 178. (See also the concurring opinion of 
Justice Black).

The other two cases cited by plaintiff in support of 
his contention in this respect appear inapposite as per­
taining only to police mistreatment of a prisoner in cus­
tody.  ̂ The Memphis Police Department’s conduct in se­
lecting ammunition in question does not violate standards 
of civilized conduct so as to shock the conscience of the 
Court; it is similar to policies in use and established by 
many other jurisdictions and was not adopted merely for 
purposes of inflicting excessive punishment or denying 
due process.® Rather, it was considered action with a 
policy toward minimizing hazards to the police and to 
citizens in situations of resisting or fleeing felons subject 
to lawful apprehension, or in situations where the life or 
safety of a policy officer or an assaulted citizen might 
even be at stake.

X. In this case, moreover, plaintiff has not shown 
a proximate and direct relationship between the police 
choice as to type of ammunition used and the particular 
effect on Edward Eugene Garner at the time and place 
and in these particular circumstances. The Court con­
cludes, moreover, that it would not have been of any 
consequence in this unfortunate death as to whether the 
type of bullet utilized in 1974 or the type utilized in 1972 
before the change was employed. For all that was demon­
strated in the evidence, the place in the head and brain

5. See plaintiffs proposed conclusion No. 6, citing Rosenberg 
V. Martin, 478 F.2d 520 (2nd Cir. 1972) and Johnson v. Click, 481 
F.2d 1028 (2nd Cir. 1973).

6. This conclusion is reached even if the Hague Declaration 
of 1899 may imply a contrary standard.



A14

where impact occurred and the manner of Garner’s 
wounding would have produced death in any event no 
matter which type of bullet was used. At least plaintiff 
failed in his burden to demonstrate otherwise.

XL For the reasons indicated, judgment must be 
rendered for all defendants.

This 29 day of September, 1976.
/s /  Harry W. Wellford

United States District Court Judge



A15

No. 77-1089

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

C l e a m t e e  G arner , father and next of kin of 
Eugene Gamer, a deceased, minor. 

Plaintiff-Appellant,
V.

M e m p h is  P olice  D e p a r t m e n t , C it y  of  M e m p h is , 
T en n essee  and Ja y  W. H ubbard and E. R. H y m o n  

in their official capacities, 
Defendants-Appellees,

On Appeal from the United States District Court 
for the Western District of Tennessee.

Decided and Filed June 18, 1979.

Before: E d w ar d s , Chief Judge; L iv e l y  and M erritt,

Circuit Judges.
M erritt, Circuit Judge. On the night of October 3, 

1974, a fifteen year old, unarmed boy broke a window 
and entered an unoccupied residence in suburban Memphis 
to steal money and property. Two police officers, called 
to the scene by a neighbor, intercepted the youth as 
he ran from the back of the house to a six foot cyclone 
fence in the back yard. Using a 38-calibre pistol loaded 
with hollow point bullets, one of the officers shot and 
killed the boy from a range of 30 to 40 feet as he climbed 
the fence to escape. After shining a flashlight on the 
boy as he crouched by the fence, the officer identified 
himself as a policeman and yelled “Halt.” He could 
see that the fleeing felon was a youth and was apparently



A16

unarmed. As the boy jumped to get over the fence, the 
officer fired at the upper part of the body, as he was 
trained to do by his superiors at the Memphis Police 
Department. He shot because he believed the boy would 
elude capture in the dark once he was over the fence. 
The officer was taught that it was proper to kill a fleeing 
felon rather than run the risk of allowing him to escape.

The District Court dismissed the suit of decedent’s 
father brought against the City under 42 U.S.C. § 1983 
(1976) to recover damages for wrongful death caused 
by claimed constitutional violations of the fourth, eighth 
and fourteenth amendments. In accordance with then 
existing law, the District Court held that a city is not a 
“person” subject to suit under § 1983; but Monroe v. 
Pape, 364 U.S. 167 (1961), in which the Supreme Court 
so ruled, was overruled on this point last term by the 
case of Monell v. Department of Social Services, 436 U.S. 
658 (1978). Following a bench trial, the District Court 
also dismissed the case against the officer and his supe­
riors holding, in accordance with our decisions in Beech 
V. Melancon, 465 F.2d 425 (6th Cir. 1972), cert, denied, 
409 U.S. 1114 (1973); Qualls v. Parrish, 534 F.2d 690 (6th 
Cir. 1976); and Wiley v. Memphis Police Department, 
548 F.2d 1247 (6th Cir.), cert, denied, 434 U.S. 822 (1977), 
that the officers acted in good faith reliance on Tennessee 
law which allows an officer to kill a fleeing felon rather 
than run the risk of allowing him to escape apprehension.

We conclude that the District Court did not err in 
finding that the individual defendants acted in good faith 
reliance on T e n n . C ode A n n . § 40-808 which provides 
that an officer “may use all the necessary means to effect 
the arrest” of a fleeing felon. As our previous cases, 
cited above, point out, Tennessee courts have interpreted 
this statute as a codification of the common law rule



A17

allowing officers to kill fleeing felons rather than run 
the risk of permitting them to escape apprehension. This 
rule applies to fleeing felons suspected of property crimes 
not endangering human life, as well as life-endangering 
crimes, and to felons who pose no threat of bodily harm 
to others, if not apprehended immediately, as well as 
felons who may be dangerous to others if left at large. 
Applying the qualified “good faith” privilege or immunity 
from liability for constitutional claims, as announced in 
our previous decisions cited above, we affirm that portion 
of the District Court’s judgment dismissing the case 
against the individual defendants.

We reverse and remand the case against the City, 
however, for reconsideration by the District Court in light 
of Monell v. Department of Social Services, supra. Monell 
holds that a city may be held liable in damages under 
§ 1983 for constitutional deprivations that result from a 
“policy or custom” followed by the city. 436 U.S. at 694 
and n.66.

Our previous decisions do not establish the constitu­
tionality of T e n n . C ode A n n . § 40-808, permitting a city 
to authorize its officers to use deadly force against a 
fleeing felon, nor have they established the constitution­
ality of the city’s use of hollow point bullets. Although 
there is discussion of the constitutionality of the Tennessee 
statute in the Beech, Qualls and Wiley cases, supra, all 
three of those cases dealt with actions against individual 
officers under § 1983, and not liability based on the “policy 
or custom” of a governmental entity. Those cases held 
that it “would be unfair” to impose liability on an officer 
“who relied, in good faith, upon the settled law of his 
state that relieved him from liability for the particular 
acts performed in his official capacity.” Qualls v. Parrish, 
supra at 694, quoted in Wiley v. Memphis Police Depart-



A18

merit, supra at 1253. The essential holding of those cases 
was that an individual officer has a qualified privilege 
or immunity from liability for constitutional claims based 
on good faith performance of his duties in accordance 
with statutory or administrative authority, a holding sub­
sequently approved by the Supreme Court in Butz v. 
Economou, 438 U.S. 478, 496-508 (1978). Although the 
qualified immunity developed in those cases insulates the 
officers and officials from personal liability in this case, 
as the District Court held, the following questions in 
the case against the city are still open under Monell:

1. Does a municipality have a similar qualified im­
munity or privilege based on good faith under 
Monell?^

2. If not, is a municipality’s use of deadly force under 
Tennessee law to capture allegedly nondangerous 
felons fleeing from nonviolent crimes constitu­
tionally permissible under the fourth, sixth, eighth 
and fourteenth amendments?^

3. Is the municipality’s use of hollow point bullets 
constitutionally permissible under these provisions 
of the Constitution?^

1. See discussion of this question in Leite v. City of Provi­
dence, 463 F. Supp. 585, 588 (D. R.I. 1978).

2 See generally Coker v. Georgia, 433 U.S. 584 (1977); In­
graham V. Wright, 430 U.S. 651 (1977); Gregg v. Georgia, 428 
U S  153 (1976); Furman v. Georgia, 408 U.S. 238 (1972); Land­
rum V. Moats, 576 F.2d 1320 (8th Cir.), cert, denied, 99 S.Ct. 
282 (1978); Mattis v. Schnarr, 547 F.2d 1007 (8th Cir. 1976), va­
cated as advisory opinion sub nom. Ashcroft v. Mattis, 431 U.S. 
171 (1977); Jones v. Marshall, 528 F.2d 132 (2d Cir. 1975); Day, 
Shooting the Fleeing Felon; State of the Law, 14 Cr im . L. Bull. 
285 (1978); Comment, Deadly Force to Arrest: Triggering Con­
stitutional Review, 11 Harv. C. R. —  C. L. L. Rev. 361 (1976).

3. See generally Paust, Does Your Police Force Use Illegal 
Weapons! A  Configurative Approach to Decision Integrating In­
ternational and Domestic Law, 18 Harv. Int’l L.J. 19 (1977).



A19

4. If the municipal conduct in any of these respects 
violates the Constitution, did the conduct flow 
from a “policy or custom” for which the City is 
liable in damages under MonelU^

We remand the case against the City to the District 
Court for reconsideration in light of Monell, including 
consideration of these questions.

4. On the question of “policy or custom,” police records are 
said to show, according to reports we do not find in this record, 
that during the preceding eight years Memphis police officers 
killed seventeen fleeing burglary suspects; thirteen were black and 
five were youths. According to the same reports, Memphis police 
officers killed twenty-four individuals during this period in con­
nection with crimes of violence or in self-defense; they attempted 
to use deadly force on 177 occasions, 114 of which were in con­
nection with property crimes. See the original certified appellate 
record, document 45, in Wiley v. Memphis Police Dep’t, 548 F.2d 
1247 (6th Cir.), cert, denied, 434 U.S. 822 (1977), as summarized 
in Comment, Deadly Force to Arrest: Triggering Constitutional
Review, 11 Harv. C. R. —  C. L. L. Rev. 361, 362 n.4 (1976); Re­
port, Tenn. Adv. Committee to U.S. Civ. Rights Comm’n, Civic 
Crisis —  Civil Challenge: Police-Community Relations in Memphis 
81 (1978).



A20

(Filed February 29, 1980)

IN THE
UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION

NO. C-75-145

CLEAMTEE GARNER, etc., 
Plaintiff,

V.

MEMPHIS POLICE DEPARTMENT, et al.,
Defendants.

ORDER

Plaintiff brought this civil rights action in April of 
1975 seeking damages for the shooting death of his son, 
who was killed by the police officer while attempting to 
flee from arrest. Named as defendants were the Memphis 
Police Department; the City of Memphis; Wyeth Chand­
ler, Mayor of Memphis; and E. R. Hymon, the Memphis 
police officer who fired the shot that caused young Gar­
ner’s death. The defendants other than Officer Hymon 
were sued on the grounds that they failed to exercise 
due care in the hiring, training, and supervision of offi­
cers and also on the grounds that their policies autho­
rizing the use of deadly force against nonviolent felony 
suspects and the use of hollow point bullets were un­
constitutional. In addition, plaintiff asserted that lethal 
force would not have been employed had his son been 
white.

Plaintiff’s complaint purported to assert an action for 
damages under 42 USC §§ 1981, 1983, 1985, and 1988 to



A21

redress alleged deprivations of rights secured by the 
Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments 
to the United States Constitution.

By Order of August 18, 1975, this Court ruled that 
plaintiff could not utilize 42 USC § 1983 and 28 USC § 1343 
to assert claims against the City of Memphis or the Mem­
phis Police Department since at that time, prior to the 
decision in Monell v. Department of Social Services, 436
U. S. 658 (1978), those entities were not “persons” within 
the meaning of § 1983. See Monroe v. Pape, 365 U.S. 165 
(1961). The Court nevertheless invoked jurisdiction over 
both of these defendants under 28 USC § 1331, relying on 
Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).

Following a bench trial, the Court held that the train­
ing programs and guidelines of the Police Department re­
garding the use of lethal force were adequate and that 
neither the City nor the Police Department could be found 
negligent on that basis. See Memorandum Opinion, No­
vember 29, 1976.̂  The Court further held that the use 
of hollow point bullets, based on the proof and evidence 
presented, was not implemented merely for the infliction 
of excessive punishment and did not violate standards of 
civilized conduct or “shock the conscience.” See Rochin
V. California, M3 U.S. 165 (1952).

Police Department officials testified that the depart­
ment became concerned when the type of bullets previously 
used proved ineffective at stopping assailants and resulted 
in the death of a Memphis policeman. After conducting 
comparative tests, the department found the hollow point

1. It is noteworthy that although plaintiff in this case failed 
to establish negligence on the part of defendants, even a showing 
of negligence may be insufficient to establish liability under 
§ 1983. See Gomez v. Toledo, 602 F.2d 1018 (1st Cir. 1979). 
The decision in Gomez held that a § 1983 plaintiff must establish 
malice or recklessness. 602 F.2d at 1020.



A22

bullets more effective in this regard and also less likely 
to ricochet and injure innocent bystanders. There was 
also evidence that other police departments and the FBI 
used such ammunition. See Trial Transcript, Vol. III. 
Finally, the evidence showed that, under the circumstances 
of the wounding of Garner, death would have occurred 
regardless of the type bullet used, thus preventing any 
claim for compensatory damages under this particular 
theory of liability.

The Court additionally noted that the constitutionality 
of Tenn. Code Ann. § 40-808, permitting a city to authorize 
its officers to use deadly force against fleeing felons, had 
been upheld previously in Cunningham v. Ellington, 323 
F.Supp. 1072 (W.D. Tenn. 1971) (three-judge court. Chief 
Judge Phillips participating).

Cunningham v. Ellington, supra, upheld the use of 
lethal force against fleeing felons, armed or otherwise, 
when no other effective alternatives were available to 
effect arrest and to prevent escape. Subsequent Sixth 
Circuit decisions have noted this holding with approval. 
For example, the Sixth Circuit panel in Wiley v. Memphis 
Police Department, 548 F.2d 1247, 1251, cert, denied, 434 
U.S. 822 (1977), expressly stated that the decision in 
Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972), cert, 
denied, 409 U.S. 1114 (1973), had held the Tennessee 
statute to be constitutional. Under these circumstances, 
this Court declined to reconsider further the constitu­
tionality of the use of deadly force by the Memphis Police 
Department per se, rather considering the adequacy of 
its policies and regulations in safeguarding previously de­
lineated constitutional rights.

Intervening decisions in this Circuit and elsewhere 
provide little justification for re-examining the facial valid­
ity of the Tennessee statute. The only decision noted



A23

which held the use of deadly force against fleeing felons to 
be unconstitutional was vacated by the Supreme Court. 
See Mattis v. Schnarr, 547 F.2d 1007 (8th Cir.), vacated as 
advisory opinion suh nom., Ashcroft v. Mattis, 431 U.S. 
171 (1977). This decision was strongly criticized by the 
Sixth Circuit in Wiley v. Memphis Police Department, 548 
F.2d 1247, 1252-53 (1977), cert denied, 434 U.S. 822 (1977).

In addition, the Second Circuit in Jones v. Marshall, 
528 F.2d 132 (2d Cir. 1975), held constitutional a Con­
necticut law affording a privilege to police officers to use 
deadly force when they reasonably believe that a felony 
has been committed and that force is necessary to effect 
arrest, a law virtually identical to that in Tennessee. In 
Marshall, the fleeing felon was suspected of auto theft and 
there was no threat of deadly force by the suspect. The 
Second Circuit refused to impose a federal constitutional 
requirement that deadly force be employed by officers only 
when the crime suspected involves a threat to death or 
bodily injury, holding that the state must be given some 
leeway in legislating in this sensitive and contested area. 
Id. at 139-42.

Finally, it should be noted that although the evidence 
presented at trial in this case suggested that Gamer ap­
peared unarmed, the officers could not have known this 
with certainty, nor could they have known whether the 
crime he had apparently committed was against persons or 
against property only. This recurring dilemma exposes 
the difficulty with any statute that attempts to restrict 
the use of deadly force only to particular types of offenses 
or in which the fleeing felon is armed.

Finally, the Court found that in view of all surround­
ing circumstances. Officer Hymon had acted without 
malice and within his responsibiliites as a police officer



A24

under the guidelines and policies of the Memphis Police 
Department.^

On appeal, the Sixth Circuit upheld this Court’s hold­
ing as to Officer Hymon, but remanded the case against 
the City for “reconsideration” in light of Monell v. Depart­
ment of Social Services, supra, which as noted before, re­
versed Monroe v. Pape, supra, in holding that a city or mu­
nicipal agency may be held liable as persons in damages 
under § 1983 for constitutional deprivations that result from 
a “policy or custom” followed by the City. 436 U.S. at 
at 694, n. 66. The remand noted that a qualified immunity 
insulated the officers and officials in the case from per­
sonal liability, but asserted that the following questions 
remain open under Monell:

“ 1. Does a municipality have a similar qualified im­
munity or privilege based on good faith under 
MonelU

2. If not, is la municipality’s use of deadly force under 
Tennessee law to capture allegedly non-dangerous 
felons fleeing from nonviolent crimes constitu­
tionally permissible under the fourth, sixth, eighth, 
and fourteenth amendments?

3. Is the municipality’s use of hollow point bullets 
constitutionally permissible under these provisions 
of the Constitution?

4. If the municipal conduct in any of these respects 
violates the constitution, did the conduct flow from 
a ‘policy or custom’ for which the City is liable in 
damages under MonellV

600 F.2d 52, 55 (6th Cir. 1979).

2. The Court further noted that Hymon had a competent 
record as a police officer and that he was the type person who 
was a desirable police recruit because of his education, back­
ground, ability, and race.



A25

After carefully reviewing the earlier proceedings in 
this case as well as subsequent submissions by both parties, 
and after hearing further argument by their counsel, this 
Court has difficulty in determining how the decision in 
Monell has any effect on this Court’s prior decision and it 
is concluded that further evidentiary proceedings are in­
appropriate under all of the circumstances.

I. SCOPE OF INITIAL TRIAL AND HOLDING
Plaintiff’s broad complaint in this case alleged that 

the killing of his son violated the latter’s constitutional 
right and was the direct and proximate result of the fol­
lowing alleged actions of the City and Police Department: 
1) hiring an individual unqualified for the job, 2) allow­
ing the use of deadly force against suspects without pro­
viding adequate training; 3) allowing the use of hoUow 
point bullets; and 4) authorizing the use of deadly force 
against “nonviolent” felony suspects. Plaintiff further 
asserted that his son would not have been shot had he been 
white.

Although rejecting plaintiff’s pre-Monell attempt to 
invoke the Court’s jurisdiction under 42 USC § 1983 and 
28 USC § 1343(3) with respect to the City and Police 
Department, the Court held that jurisdiction over both 
these defendants was properly invoked under the Four­
teenth Amendment and the general federal question stat­
ute, 28 USC § 1331. See Bivens v. Six Unknown Named 
Agents, 403 U.S. 388 (1971) (“federal courts do have the 
power to award damages for violation of ‘constitutionally 
protected interest’ ” ); see also Bosely v. City of Euclid, 
496 F.2d 193 (6th Cir. 1974).

Thus, as a result of the Court’s exercise of jurisdiction 
under § 1331, the City of Memphis was potentially liable 
in damages for each and all the constitutional violations



A26

asserted by plaintiffs under 42 USC § 1983, who had full 
opportunity to develop proof and evidence on each of the 
issues raised.®

At trial, which lasted several days, plaintiff submitted 
substantial evidence concerning the policies, practices, and 
training programs of the City and Police Department with 
respect to the use of lethal force, including testimony re­
garding the use of such force against suspects who, upon 
investigation, were, in fact, unarmed. In addition, con­
siderable evidence was introduced concerning the utiliza­
tion of hollow point ammunition."^

Following presentation of proof, counsel for defendant 
noted that plaintiff had presented no evidence to substan­
tiate the assertion that his son had been denied equal pro­
tection on the basis of race. After counsel for plaintiff 
expressed no desire to pursue this facet of the case further, 
the Court disposed of the issue summarily.^

As noted above, the Court considered all claims against 
all defendants (except for the dismissed equal protection 
claim) and the evidence presented on each claim in its

3. Plaintiff’s very competent counsel is now a high ranking 
member of the United States Department of Justice.

4. The Court has reviewed the full record carefully in light 
of the remand in this respect, as well as others considered.

5. This Court did have occasion to consider an equal pro­
tection challenge in an earlier, somewhat similar case, Wiley v. 
Memphis Police Department, No. C -73-8 (W.D. Tenn. June 30, 
1975), affd., 548 F.2d 1247 (6th Cir.), cert, denied, 434 U.S. 822 
(1977). This Court found that plaintiff in Wiley failed to estab­
lish discriminatory intent on the part of defendant was affirmed 
on appeal. The reference by the circuit panel in this case to sta­
tistics introduced in W iley leaves this Court somewhat puzzled as 
to their relevance here. In any event, plaintiff in the present ac­
tion offered no evidence whatsoever to support his claim of racial 
discrimination; in Wiley, as the Court recalls it, there were asser­
tions that the white police officers involved would not have fired 
at the fleeing suspect had he been white instead of black. There 
were distinct racial overtones in that case not pursued by able 
counsel here despite the opportunity to do so.



A27

Opinion of November 29, 1976. Finding that plaintiff had 
failed to establish any constitutional violations, the Court 
ordered judgment in favor of all defendants.

II. EFFECT OF MONELL V. DEPARTMENT 
OF SOCIAL SERVICES

To discern the effect of Monell on the instant case, 
42 u s e  § 1983 creates no independent rights or protections, 
but merely provides a federal cause of action for violations 
of rights conferred by the Constitution and perhaps by 
other federal statutes. As the Supreme Court recently 
stated: “one cannot go into court and claim a Violation
of § 1983’—for § 1983 by itself does not protect anyone 
against anything.” Chapman v. Houston Welfare Rights 
Organization, 441 U.S. 600, 617 (1979).

The decision in Monell therefore simply makes mu­
nicipalities liable under § 1983 if and when they violate 
rights conferred by the Constitution, provided the depriva­
tion results from municipal policy or custom. In the earlier 
proceeding in this case, as a result of the Court’s recognition 
of a direct action under the Fourteenth Amendment and 
jurisdiction premised on 28 USC § 1331, the City was 
potentially liable for all the constitutional violations then 
and now alleged by plaintiff.® This potential liability would 
have been no greater, no different, had the Court exercised 
jurisdiction under § 1983 and 28 USC § 1343.̂  Since plain-

6. Although some of the constitutional provisions relied upon 
by plaintiff are of questionable application to this case, pertinent 
state actions as to these claims are incorporated through Four­
teenth Amendment application. See Sibron v. New York, 392 
U.S. 40 (1968); Gideon v. Wainwright, 372 U.S. 335 (1963); Rob­
inson V.  California, 370 U.S. 660 (1962).

7. Potential municipal liability could conceivably be less 
extensive under § 1983 because of the necessity of “policy or cus­
tom” prescribed in Monell. Compare Leite v. City of Providence, 
463 F.Supp. 385 (D.R.I. 1978) (since Congress in fact provided an 
adequate remedy under § 1983, no reason exists to imply a cause 
of action imder § 1331).



A28

tiff’s constitutional claims received full and careful consid­
eration under § 1331, reconsideration under Monell with 
additional evidentiary hearings woiild be inappropriate. 
Plaintiff has no new “cause of action” as a result of the 
decision in Monell and is bound by the previous judgment 
which we reiterate holding that the City and Police De­
partment did not violate the Constitution.® The present 
effort by plaintiff to reopen the case and introduce addi­
tional evidence on issues already decided is barred by 
established principles of res judicata.

There is pending before the Supreme Court at present 
one case which dealt with similar issues in an action in­
volving 42 u s e  § 1983 charges against a municipality, in 
which Bivens v. Six Unknown Named Agents, supra, ra­
tionale had been applied prior to Monell. In that case, 
Owen V. City of Independence, supra, the Supreme Court 
remanded to the Court of Appeals “for further considera­
tion in light of Monell/  ̂ supra, a decision rendered in 560 
F.2d 925 (8th Cir. 1977), That Court held, as did this 
Judge, that 28 USC § 1331 authorized an action for dam­
ages for alleged constitutional violations against a city 
whether or not it was a “person” subject to suit under 42 
USC § 1983. On remand, interpreting Monell, 436 U.S. 
at 695, 701, 707-08, 712-13, the Court of Appeals stated:

8. Since defendants were found not to have violated the 
Constitution in any respect and since the Court deemed the facial 
validity of the Tennessee law to have been previously decided, the 
availability of a qualified immunity for municipalities need not 
now be considered. In the absence of any actions that may result 
in a finding of liability, the question of immunity is immaterial.

Nevertheless, the absence of any evidence of bad faith in this 
case would probably immunize defendants from liability under the 
qualified municipal immunity in § 1983 actions recognized by an 
increasing number of courts. See Sala v. County of Suffolk, 604 
F.2d 207 (2d Cir, 1979); Owen v. City of Independence, 589 F.2d 
335 (8th Cir. 1978) (Supreme Court Appeal Pending); Morgan v. 
Sharon, Pa. Board of Education, 472 F.Supp. 1157 (W.D. Pa. 1979).



A29

. . .  We imply from the Court’s discussion of immunity 
that local governing bodies may assert a limited im­
munity defense to actions brought against them under 
section 1983.

Owens, supra, 589 F.2d 337.

That Court expressly recognized prior to 1978, a good 
faith defense available to the municipality to a claim for 
damages for an alleged constitutional violation. Applying 
Monell, it held that “a limited immunity will apply to 
claims for equitable relief against municipalities.” 589 
F.2d 338.

Applying the Owen rationale, under the evidence pre­
sented to this Court, the City of Memphis has established 
a good faith defense. The City of Memphis also was en­
titled to claim a limited immunity in light of the evidence 
presented on plaintiffs constitutional allegations against 
it and other defendants in the trial of this cause. The very 
allegations made by plaintiff in this case against the City, 
and as to which he was afforded an opportunity to present 
evidence, related to policies and procedures allegedly es­
tablished or utilized by the City and the Memphis Police 
Department, including its hiring and training practices.

In summation, then, the Court believes that each of 
the specific questions posed on remand have previously 
been addressed and answered in the Court’s prior Memo­
randum Opinion, but this Judge has carefully re-examined 
the record, its notes, and the circumstances of the prior 
trial in light of the remand and Monell, supra.

The answer to question No. 1 is ‘‘yes” based upon 
Owen, supra, and cases cited. Whether or not the City 
has such immunity, however, plaintiff has failed to make 
out a prima facie case of any claimed constitutional viola­
tion.



A30

The answer to question No. 2 would also seem clearly 
to be “yes” in light of prior authorities cited, particularly 
Cunningham v. Ellington, supra, which held squarely on 
similar facts that Tenn. Code Annot. 40-808 met federal 
constitutional standards on its face and that it was “not 
unconstitutional” in the face of similar attacks made by 
the same counsel involved in this case. 323 F.Supp.l076. 
(Two of the present Judges of the Sixth Circuit Court of 
Appeals participated in that decision as well as the present 
Chief Judge of this Court.)

The answer to question No. 3 was answered “yes” in 
light of the evidence presented and the opportunity to 
present any pertinent proof relating to a constitutional 
challenge to this policy and practice. Absent further per­
suasive proof and evidence in another factual context, this 
Court would still answer “yes” to this inquiry.

As to question No. 4, any answer would be purely 
speculative and conditional since municipal conduct re­
ferred to in prior questions was not determined in these 
respects to violate the Constitution.

The Court concludes therefore that judgment should 
issue for defendants, including the City of Memphis and 
the Memphis Police Department in light of Monell v. 
Department of Social Services, supra.

It is so ORDERED this 29th day of February, 1980.

/s /  Harry W. Wellford
Harry W. Wellford, Judge 

United States District Court



A31

(Filed July 8,1981)

IN THE
UNITED STATES DISTRICT COURT FOR THE 

WESTERN DISTRICT OF TENNESSEE 
WESTERN DIVISION

NO. C-75-145

CLEAMTEE GARNER, etc., 
Plaintiff,

V.

MEMPHIS POLICE DEPARTMENT, et al., 
Defendants.

ORDER

The Court has entered an Order for reconsideration 
of its February 29, 1980 Order in light of further con­
tentions of counsel for plaintiff in this cause. There has 
been submission or tender of further proof by plaintiff in 
light of plaintiff’s position that the remand from the 
Court of Appeals entitles it to go forward with further 
proof in the cause. Both parties have indicated that the 
matter is now submitted for decision on the difficult issues 
presented in this controversy.

The effect of plaintiff’s submission of further proof 
by affidavit is that a professor and former New York City 
policeman, James J. Fyfe, believes and expresses the opin­
ion based on his study and experience, that use of deadly 
force to apprehend fleeing non-violent suspects is “ incon­
sistent with the concern for life characteristic of the 
operations of the rest of the criminal justice system” ; that 
it does not deter criminal behavior nor increase “law en­



A32

forcement effectiveness.” He found the incident of use 
of firearms in Memphis prior to the episode in question 
by police was considerably higher than in New York City, 
and that this rate applied particularly to so-called “prop­
erty crimes.”^

Professor Fyfe found that although only comprising 
about 40% of the population, about 80% of “property 
crime suspects” shot at by Memphis Police were black. He 
did not, however, specify the actual number of blacks ar­
rested and/or convicted for alleged “ ‘property crimes” as 
compared to whites during this period. Presumably bur­
glary of residences or robbery of victims by use of a weapon 
or placing the victim in fear of his own life may be a “prop­
erty crime” in the Fyfe definition. Whether or not a 
higher ratio of blacks shot at than the ratio of blacks to 
the total number of persons arrested, indicted, or con­
victed for criminal conduct was not definitely established 
by statistical evidence. That F ife ’s statistical analysis 
showed a higher proportion of blacks involved in or ar­
rested for so-called “property crimes” being fired upon 
than whites is not, in this Court’s view, determinative of 
any racial selectivity, particularly since plaintiffs affiant 
concedes elsewhere that there is also “differential racial in­
volvement in police shootings.”  ̂ Neither does Fyfe’s find­
ing that the rate of blacks being wounded or killed by 
police as higher than whites necessarily indicate any racial 
animus or selectivity if more blacks were proportionately 
involved than whites in the felonious conduct being ana­
lyzed. This data does not indicate racial proportions as 
to resisting arrest, being armed, or whether the suspect

. 1. Professor Fyfe admitted his comparison was not “precise” 
in respect to “property crimes” comparison.

2. Fyfe states such differential in New York City is accounted 
for by “different racial involvement in the types of activities likely 
to precipitate shootings.”



A33

was under the influence of drugs or alcohol, for example, or 
whether there were multiple offenders involved at the time 
of a shooting.

The thrust of the Fyfe affidavit is that there should 
be a policy against allowing police to fire at fleeing felons 
or those reasonably suspected to have been involved in 
so-called “property crimes,” because this would eliminate 
much of the alleged racial discrepancy in statistical evi­
dence above noted. Obviously, if there were a policy or 
rule adopted by a proper authority limiting the use of 
deadly weapons, there would be a reduction in woundings 
or deaths, and particularly as to those in the delineated 
and restricted category placed “off limits” to police. Plain­
tiff’s expert assumes that “property crimes” do not in­
volve danger to police or citizens,  ̂ and that, therefore, as 
a matter of policy, suspects so involved should not be placed 
in fear of being shot. This assumption, however, is not 
so easily drawn - how does a police officer responding to 
a home burglary call, for example, know whether there 
has been, or may be in connection therewith, an act of 
violence committed to a home occupant, or that a home- 
owner or property owner may not have felt justified in 
using violence to respond to an assault upon his home or 
property?

The Court does not adopt Professor Fyfe’s conclusions 
that Memphis Police were, at the time in question, more 
likely to shoot “unthreatening” blacks than “unthreatening” 
whites. Such conclusion cannot reasonably be drawn from 
the type of statistics referred to in the record; nor is it 
clear what “unthreatening” means—if the suspect assaulted 
a victim, or placed in jeopardy a property owner’s life, but 
not the police, is he defined as “unthreatening?” Further-

3. See paragraph #  13 of his affidavit to this effect.



A34

more, as was indicated in considering the facts of the in­
stant case, a police office simply cannot clearly determine at 
night or in darkness whether a suspect is armed or has 
been armed with a deadly weapon when involved in the 
suspected felony. The bias of plaintiff’s expert is apparent 
in his last conclusion, “it was very wrong that the officer 
had been told to do what he did,” (a conclusion drawn not 
from the record in this case, but from a brief account of 
facts in an appellate decision)^ and that Garner was dead 
“because of policy and training which authorized the sum­
mary shooting of non-dangerous suspects on the basis of 
suspicion or probable cause.”

This Court does not believe that the additional tender 
by plaintiff should properly be taken into account for the 
reasons set forth in the Court’s Order (and Opinion) 
dated February 29, 1980, but even giving it full considera­
tion, the conclusion heretofore reached is not changed. The 
facts of this case did not indicate to Officer Hymon that 
Gamer was “non-dangerous.”

The City cannot be held liable in this case absent 
a showing of direct responsibility for its improper action. 
Wilson V. Beehe, ....... F.2d ....... (6th Cir. 1980). No im­
proper action by Officer Hymon has been demonstrated for 
the reasons heretofore stated. The very question involved 
in this case was recently decided by Chief Judge McRae 
of this District in Campbell v. City of Memphis, No. 79-2508 
(March 25, 1981), who held:

The Memphis Police Department’s deadly force 
policy, inter alia, authorized police after having made 
known their identity and purpose, to use deadly force:

4. The Sixth Circuit decision, dated June 18, 1979, made no 
factual reference to practices of the City except to indicate Hymon 
fired at the upper part of the body of the fleeing suspect, “as he 
was trained to do.”



A35

To apprehend a fleeing person, after exhausting 
every other reasonable means of prevention, ap­
prehension, or defense, when the officer has rea­
sonable cause to believe the suspect has committed 
a felony which is either a burglary in the first, 
second, or third degree, or a felony involving an 
actual or threatened attack which the officer has 
reasonable cause to believe could result, or has re­
sulted, in death or serious bodily injury.

As plaintiffs stress, this motion does not question 
the use of deadly force by police officers against sus­
pects who forcibly resist arrest, who pose a threat to the 
life or bodily security of the arresting officers or other 
persons, or the use of deadly force to apprehend per­
sons suspected of felonies involving violence. Instead, 
“ [t]he only issue presented here in the constitu­
tionality of using deadly force against a property crime 
suspect, who has not engaged in violence.”

Plaintiffs contend that the deadly force policy of 
the Memphis Police Department is unconstitutional on 
several grounds. First, they argue that use of deadly 
force against a non-violent property crime suspect is 
cruel and unusual punishment. Second, they argue 
that this policy violates the equal protection clause of 
the Fourteenth Amendment. Third, they contend that 
the use of deadly force against a non-violent property 
crime suspect violates the due process clause of the 
Fourteenth Amendment. Fourth, they argue that use 
of deadly force to arrest a non-violent property crime 
suspect is an unreasonable seizure.

. . . .  In accordance with Cunningham, this Court 
holds that the deadly force policy of the Memphis



A36

Police Department does not violate the equal protec­
tion clause of the Fourteenth Amendment because of 
not allowing deadly force to be used against fleeing 
misdemeanants.

•  •  •  •

The definition of the goal to be served by the 
deadly force policy becomes important. Clearly, a 
goal to be served by the deadly force policy of the 
Memphis Police Department is the prevention of all 
future felonies. As such, the deadly force policy is not 
overinclusive. See discussion in Comment, Deadly 
Force to Arrest: Triggering Constitutional Review,
11 Harv. C.R. - C.L.L.Rev. 361, 375-380 (1976).

The dissenting judges in Mattis (v, Schnarr, 547 
F.2d 1007 (8th Cir. 1976)), criticized the majority for 
failing to identify the interests of the state which 
should be balanced against the felon’s right to life. 
The dissent said these state interests “include effec­
tive law enforcement, the apprehension of criminals, 
the prevention of crime and the protection of members 
of the general populace who like fleeing felons, also 
possess a right to life.” Id., 1023.

The dissenting judges in Mattis also criticized the 
majority for a “single-minded focus on the seemingly 
absolute right of an individual to life.” Id., 1022. 
After noting that life is filled with contradictions and 
obstacles, the dissent noted, in a statement quoted 
by the Sixth Circuit in Wiley at 1253:

There is no constitutional right to commit feloni­
ous offenses and to escape the consequences of 
those offenses. There is no constitutional right



to flee from officers lawfully exercising their au­
thority in apprehending fleeing felons.

MatUs, 1023.

The dissent in Mattis, with which the Sixth Circuit 
agreed in Wiley, points out that the interests of the 
state in effective law enforcement, the apprehension 
of criminals, and the prevention of crime outweigh the 
interests of the fleeing felon in this matter. As noted 
earlier, deadly force may be used only after the officer 
has warned the fleeing felon to halt, and only if the 
officer reasonably believes that no lesser means will 
prevent the escape of the fleeing felon.

A37

“No court has ever specifically found force neces­
sary to effect arrest to be unreasonable under the 
fourth amendment.” Deadly Force to Arrest: Trigger­
ing Constitutional Review, sujyra, 384, 385.

Judge McRae concluded (after citing the Sixth Circuit 
cases noted in this Court’s prior Orders) that similar con­
stitutional attacks made by plaintiff in Campbell to those 
made on behalf of Garner were meritless.

This Judge recognizes that the common law rule 
adopted in Tennessee as to use of deadly force on fleeing 
felons may in some circumstances be deemed harsh or dis­
agreeable to other jurisdictions and to some judges, but 
the policy determination should be a legislative decision 
not a judicial one. See Alaska v. Sundberg, 611 P.2d 41 
(1980) and Landrum v. Moates, 576 F.2d 1320 (8th Cir. 
1978). Jurisdictions may have strongly differing views on 
imposition of or abolition of the death penalty in any par­
ticular felony situation. Again, those views should be ex­
pressed legislatively as a matter of policy, not by a trial



A38

judge attempting to apply his view of the law to a given 
set of facts. See Davis v. Balson, 467 F.Supp. 842 (N.D. 
Ohio 1978), and Wolfer v. Thaler, 525 F.2d 977 (5th Cir. 
1976)."

The answer to the first question posed by the appellate 
court in remand is in some doubt. The answer may now, 
in light of subsequent appellate interpretations, be “no”— 
a city may not claim a good faith immunity in a 1983 ac­
tion. See Shuman v. City of Philadelphia, 47 U.S.L.W. 2720 
(E.D.Pa. 1979), and Bertot v. School District, 47 U.S.L.W. 
2336 (10th Cir. 1978). Even if the answer were “no,” 
however, this response would not impose liability upon the 
City in the circumstances of this case. The City may 
not claim immunity from liability simply because of the 
good faith action of its agent, Officer Hymon. Owen v. 
Independence, 445 U.S. 622, 48 U.S.L.W. 4389 (1980). The 
answer is in doubt, however, despite Owen, supra, because 
the City itself was apparently relying upon the Tennessee 
law as it had been interpreted by the Federal as well as 
State courts concerned. Compare City of Newport v. 
Fact Concerts,.......U.S..........., 49 U.S.L.W. 4860 (1981).«

The use of deadly force under Tennessee law imder 
the circumstances of this case where the officer was at­
tempting to apprehend a burglary suspect, whom he did 
not definitely know was unarmed, and when he did not 
know if some violent offense had been committed in the 
course of a burglary, was permissible and constitutional 
in this Court’s view.

5. A  particular state’s view of the validity of the death 
penalty may, of course, effect its view of the issues involved in 
this case.

6. No punitive damage could be awarded against the City.



A39

The question of use of hollowpoint bullets does not 
require a constitutional determination under the facts of 
this case; it had no causative relation in this case, because 
whatever kind of ammunition had been used, the result 
would have been the same. If required to answer the 
question, however, the answer would be “yes” as pre­
viously determined.

Since the answers to questions one through three are 
as indicated, the action taken would not render the City 
of Memphis liable for the conduct of its Police Officer, 
Hymon, in this case. There was demonstrated no consti­
tutionally impermissible “ custom or practice” in the record.

The Court has attempted to deal with the difficult 
and even painful issues involved in this case in light of 
the remand. Upon reconsideration, judgment is rendered 
for the City of Memphis, primarily because of previous 
decisions by the Court of Appeals in Wiley v. Memphis 
Police Department, 548 F.2d 1274 (6th Cir.), cert, denied, 
434 U.S. 822 (1977); and Beech v. Melancon, 465 F.2d 425 
(6th Cir. 1972), and the persuasive reasoning in Cunning­
ham V. Ellington, 323 F.Supp. 1072 (W.D.Tenn. 1971), and 
Campbell v. City of Memphis, supra.

It is so ORDERED this 8th day of July, 1981.
/s /  Harry W. Wellford

Harry W. Wellford, Judge 
United States District Court



A40

No. 81-5605

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

C l e a m t e e  G arner , 
Plaintiff-Appellant,

V.

M e m p h is  P olice  D e p a r t m e n t , et al., 
Defendants-Appellees.

On Appeal from the United District Court for the Western 
District of Tennessee.

Decided and Filed June 16, 1983

Before: Ed w a r d s , Chief Judge; K eith  and M erritt ,

Circuit Judges.
M erritt , Circuit Judge. The principal question before 

us concerns the constitutionality of Tennessee’s fleeing felon 
statute, T.C.A. § 40-808 (1975) under the Fourth, Eighth 
and Fourteenth Amendments. The Tennessee statute, as 
interpreted by the District Court and by other federal 
and state courts, authorizes police officers to use deadly 
force in order to capture unarmed suspects fleeing from 
nonviolent felonies. The statute reads: ‘Tf . . . the defen­
dant . . . either flee or forcibly resist, the officer may use 
all the necessary means to effect the arrest.” In the 
present action for wrongful death under 42 U.S.C. § 1983 
(1976), a Memphis police officer shot an unarmed boy 
fleeing from the burglary of an unoccupied house. We hold 
the Tennessee statute unconstitutional because it authorizes 
unnecessarily severe and excessive, and therefore unrea-



A41

sonable, methods of seizure of the person under the Fourth 
and Fourteenth Amendments.

I.

On the night of October 3, 1974, a fifteen year old, 
unarmed boy broke a window and entered an unoccupied 
residence in suburban Memphis to steal money and prop­
erty. Two police officers, called to the scene by a neighbor, 
intercepted the youth as he ran from the back of the house 
to a six foot cyclone fence in the back yard. After shining 
a flashlight on the boy as he crouched by the fence, the 
officer identified himself as a policeman and yelled “Halt.” 
He could see that the fleeing felon was a youth and was 
apparently unarmed. As the boy jumped to get over the 
fence, the officer fired at the upper part of the body, using 
a 38-calibre pistol loaded with hollow point bullets, as 
he was trained to do by his superiors at the Memphis 
Police Department. He shot because he believed the boy 
would elude capture in the dark once he was over the 
fence. The officer was taught that it was proper under 
Tennessee law to kill a fleeing felon rather than run the 
risk of allowing him to escape. The youth died of the 
gunshot wound. On his person was ten dollars worth of 
money and jewelry he had taken from the house.

The District Court dismissed the suit brought by de­
cedent’s father against the City under 42 U.S.C. § 1983 
(1976) to recover damages for wrongful death caused by 
claimed constitutional violations of the Fourth, Eighth and 
Fourteenth Amendments. In accordance with Monroe v. 
Pape, 364 U.S. 167 (1961), the District Court held that a 
city is not a “person” subject to suit under § 1983. Before 
we heard the first appeal, Monroe was overruled on this 
point by Monell v. Department of Social Services, 436 U.S. 
658 (1978). The District Court also dismissed the case



A42

against the officer and his superiors holding, in accordance 
with our decisions in Beech v. Melancon, 465 F.2d 425 (6th 
Cir. 1972), cert, denied, 409 U.S. 1114 (1973); Qualls v. 
Parrish, 534 F.2d 690 (6th Cir. 1976); and Wiley v. Memphis 
Police Department, 548 F.2d 1247 (6th Cir.), cert, denied, 
434 U.S. 822 (1977), that the officers acted in good faith 
reliance on Tennessee law which allows an officer to kill 
a fleeing felon rather than run the risk of allowing him 
to escape apprehension.

On appeal, a panel of this Court consisting of Chief 
Judge Edwards and Judges Lively and Merritt affirmed 
the District Court’s holding that the individual defendants 
were protected by the doctrine of qualified immunity be­
cause they acted in good faith reliance on T.C.A. § 40-808. 
Gamer v. City of Memphis, 600 F.2d 52 (6th Cir. 1972). 
We reversed and remanded the case against the City of 
Memphis, however, for reconsideration by the District 
Court in light of Monell v. Department of Social Services, 
supra. Because Monell held that a city may be liable in 
damages under § 1983 for constitutional deprivations that 
result from a “policy or custom” followed by the city, 
436 U.S. at 694 and n.66, we instructed the District Court 
to consider the following questions:

1. Whether a municipality has qualified immunity or 
privilege based on good faith under Monell?

2. If not, is a municipality’s use of deadly force under 
Tennessee law to capture allegedly nondangerous 
felons fleeing from nonviolent crimes constitution­
ally permissible under the Fourth, Sixth, Eighth and 
Fourteenth Amendments?

3. Is the municipality’s use of hollow point bullets 
constitutionally permissible under these provisions 
of the Constitution?



A43

4. If the municipal conduct in any of these respects 
violates the Constitution, did the conduct flow from 
a “policy or custom” for which the City is liable 
in damages under Monell?

600 F.2d 52, at 54-55.

On remand. Judge Wellford ordered memoranda and 
oral argument on the issue of whether the trial should be 
reopened. By order dated February 29, 1980, he denied 
further hearings and dismissed the case on the merits, hold­
ing that the constitutional claims had already been fully 
adjudicated. Because there had been no constitutional 
violation, the holding of Monell that cities could be liable 
for violations occurring pursuant to a policy or custom 
of the city did not require a different result. Plaintiffs 
motion for reconsideration was granted and he was allowed 
to submit further briefs and make an offer of proof. The 
Judge considered the offer of proof and once again ruled 
against plaintiffs in a written opinion dated July 8, 1981. 
He held that the wisdom of a statute permitting the use 
of deadly force against all fleeing felons was a matter 
of policy for the legislature rather than the judiciary, and 
that the Tennessee statute was not unconstitutional on its 
face, nor as applied by the police officer in this case.

Addressing the question of the City’s good faith im­
munity, the District Court held that Owen v. City of In­
dependence, 445 U.S. 622 (1980), prevented the city from 
claiming immunity from liability based on the good faith 
of its agent. Nevertheless, it found that it was still an 
open question whether the City might claim immunity if 
the City itself was relying in good faith on the Tennessee 
law as interpreted by the federal and state courts. Judge 
Wellford did not believe it necessary to address the con­
stitutionality of the use of hollow point bullets, because 
he found that there was no causal connection between the 
use of hollow point bullets and Garner’s death.



A44

II.
We consider the Fourth Amendment question first be­

cause, unlike the other more general constitutional pro­
visions raised, the Fourth Amendment is specifically di­
rected to methods of arrest and seizure of the person. The 
question under the Fourteenth Amendment is one of first 
impression in this Circuit. The narrow question presented 
is whether a state law authorizing the killing of an un­
armed, nonviolent fleeing felon by police in order to pre­
vent escape, constitutes an unreasonable seizure of the 
person.

The Fourth Amendment provides for the “right of the 
people to be secure in their persons . . . against unreason­
able . . . seizures.” The Amendment also provides that 
where a warrant is necessary it must describe “the person 
to be seized.” When an officer “accosts an individual and 
restrains his freedom to walk away,” the Fourth Amend­
ment comes into play. Terry v. Ohio  ̂392 U.S. 1, 16 (1968). 
“ [A] person is ‘seized’ . .. when, by means of physical force 
or a show of authority, his freedom of movement is re­
strained.” United States v. Mendenhall, 446 U.S. 544, 553 
(1980). Killing the individual is the most decisive way to 
make sure that he does not “walk away,” a method “unique 
in its severity and irrevocability.” Gregg v. Georgia, 428 
U.S. 153, 187 (1976). It is plainly a “seizure” of the “per­
son.” The question therefore becomes whether this method 
of capturing suspects is “reasonable” under the Fourth 
Amendment.

Tennessee courts have interpreted their statute regard­
ing the capture of fleeing felons to create a jury question 
on the issue of the “reasonableness” and the “necessity” 
of using deadly force. But the “reasonableness” and “ne­
cessity” of the officer’s action must be judged solely on the 
basis of whether the officer could have arrested the



A45

suspect without shooting him. Purporting to follow the 
rule developed in England at common law allowing the use 
of deadly force against suspects fleeing from any felony, 
Tennessee courts have interpreted their statute to mean 
that once it is determined that the officer probably could 
not have captured the person without firing, the jury 
should find the police action reasonable under the statute. 
Scarbrough v. State, 168 Tenn. 106, 110 (1934) (officer 
may kill automobile thief “as a last resort” to prevent es­
cape and the question of “necessity of killing” is one for 
jury); see also to the same effect Love v. Bass, 145 Tenn. 
522 (1921) and State v. Bowles, 598 S.W.2d 821 (Tenn. 
App. 1980) and the cases cited in those opinions. It makes 
no difference that the felony was nonviolent or that the 
felon was unarmed and not dangerous to the physical 
safety of others.

It is true that the common law permitted the killing of a 
felon who resists arrest without regard to the nature of the 
felony. But it did so at a time when all of the small number 
of felonies then in existence were capital crimes. Since any 
felon at large would be hanged or otherwise executed if 
taken and tried, he was an “outlaw” who was automatically 
dangerous and posed an imminent threat to the physical 
safety of others. The common law, however, prohibited the 
use of deadly force against a fleeing suspect whose crime 
did not require execution and who, therefore, was not 
likely to become a dangerous outlaw.

$

Pollock and Maitland describe as follows the felony at 
common law and the method by which a felon could be 
taken:

But the very case with which the king’s peace 
spread itself until it had become an all-embracing at­
mosphere prevented a mere breach of that peace from



A46

being permanently conceived as a crime of the highest 
order. . . .  It was otherwise with felony. This be­
comes and remains a name for the worst, the bootless 
crimes.

•  «  •  •

The specific effect of the ‘words of felony’ when 
they were first uttered by appellors, who were bring­
ing charges of homicide, robbery, rape and so forth, 
was to provide that, whatever other punishment the 
appellees might undergo, they should in all events lose 
their land. . . .  At all events this word, expressive 
to the common ear of all that was post hateful to God 
and man, was soon in England and Normandy a gen­
eral name for the worst, the utterly ‘bootless’ crimes.. . .  
The felon’s lands go to his lord or to the King and 
his chattels are confiscated. The felon forfeits life 
or member. If a man accused of felony flies, he can 
be outlawed.

We have now to speak of the various processes 
which the law employs in order to compel men to 
come before its courts. They vary in stringency from 
the polite summons to the decree of outlawry. . . .

When a felony is committed the hue and cry 
should be raised. . . . The neighbors should turn out 
with the bows, arrows, knives, that they are bound 
to keep and, besides much shouting, there will be 
hornblowing; the ‘hue’ will be ‘horned’ from vale to 
ville.

Now if a man is overtaken by hue and cry while 
he has still about him the signs of his crime, he will 
have short shrift. Should he make any resistance, he 
will be cut down.



A47

There is hardly room for doubt that this process 
had its origin in days when the criminal taken in the 
was ipso facto an outlaw. He is not entitled to any 
‘law,’ not even to that sort of ‘law’ which we allow 
to noble beasts of the chase. Even when the process 
is being brought within some legal control, this old 
idea survives. If there must be talk of proof, what 
has to be proved is not that this man is guilty of a 
murder, but that he was taken red-handed by hue 
and cry.

II Pollock and Maitland, History of English Law, 464-66, 
578-80 (2d ed. 1959).

It is this common law rule allowing all fleeing felons 
to be killed, a rule based on the ancient concept of out­
lawry, that Tennessee courts have adopted in interpreting 
their statute. These killings were acceptable at common 
law because only violent crimes were classified as felonies, 
and all were punishable by death and subject to outlawry. 
The killing of a fleeing felon merely accelerated the time 
of punishment. The rule of outlawry permitting the killing 
of the fleeing felon did not apply to misdemeanors and 
lesser crimes. Lesser criminals who took flight from their 
crimes could not be killed to prevent their escape. See 
Comment, Deadly Force to Arrest: Triggering Constitu-
tioned Review, 11 H arv . C.R.-C.L. L. R ev . 361, 364-65 
(1976).

It is inconsistent with the rationale of the common law 
to permit the killing of a fleeing suspect who has not com­
mitted a life endangering or other capital offense and who 
we cannot say is likely to become a danger to the com­
munity if he eludes immediate capture. Those states like 
Tennessee that cite the common law in defense of their 
rule permitting the killing of any fleeing felony suspect 
exalt the form of the common law rule over its substance



A48

and purpose. Tennessee law authorizing the use of deadly 
force against all fleeing felons is at odds with the purpose 
and function of the common law principle because there 
are now hundreds of state and federal felonies that range 
all the way from violations of tax, securities and antitrust 
laws and the possession of stolen or fraudulently obtained 
property to murder and crimes of terror. A state statute 
or rule that makes no distinctions based on the type 
of offense or the risk of danger to the community is in­
herently suspect because it permits an unnecessarily severe 
and excessive police response that is out of proportion to 
the danger to the community.

This line of reasoning concerning the origin, develop­
ment and current status of the common law rule is similar 
to the reasoning of the Eighth Circuit in its en hanc de­
cision in Mattis v. Schnarr, 547 F.2d 1007 (8th Cir. 1976), 
vacated as moot per curiam suh nom Ashcroft v. Mattis, 
431 U.S. 171 (1977). There the court held a similar state 
statute in Missouri unconstitutional under the Fourteenth 
Amendment as a matter of substantive due process. After 
tracing some of the history of the fleeing felon doctrine 
and cataloguing in comprehensive fashion the state statutes 
on the question, as well as federal decisions, administrative 
rules and scholarly commentary, the Eighth Circuit ob­
served that “the historical basis for permitting the use of 
deadly force by law enforcement officers against nonviolent 
fleeing felons has been substantially eroded,” 547 F.2d at 
1016. At common law “since all felonies . . . were punish­
able by death, the use of deadly force was seen as merely 
accelerating the penal process. . . .” 547 F.2d at 1011 n.7.

Likewise, in Jones v. Marshall, 528 F.2d 132 (2d Cir. 
1975), the Second Circuit in a scholarly opinion by Judge 
Oakes observed that a rule which permits the use of deadly 
force against nonviolent fleeing felons is not consistent



A49

with the purpose and function of the common law rule. 
Although the Jones case, like our earlier opinion in this 
case, insulates the officer from federal liability when, in 
reliance on a similar state statute, he shoots a nonviolent 
fleeing felon, the court commented:

[T]he common law rule evolved when only a few 
crimes were felonies, and all of them involved force 
or violence . . . and were punishable by death or 
forfeiture of lands and goods. See ALI, Model Penal 
Code § 3.07, Comment 3 at 56 (Tent. Draft No. 8, 
1958). (“Such rational justification for the common 
law rule as can be adduced rests largely on the fact 
that virtually all felonies in the common law period 
were punishable by death” ). . . .  As the scope of 
“felony” crimes has expanded wholly away from the 
concept of violence which underlay its common law 
origin, the use of the felony label to justify especially 
severe police behavior has become increasingly 
strained. As stated by Judge McCree in his concurring 
opinion in Beech v. Melancon, 465 F.2d 425, 426-27 (6th 
Cir. 1972), cert, denied, 409 U.S. 114 (1973):

“ . . . I would find it difficult to uphold as constitutional 
a statute that allowed police officers to shoot, after an 
unheeded warning to halt, a fleeing income tax evader, 
antitrust law violator, selective service delinquent, or 
other person whose arrest might be sought for the 
commission of any one of a variety of other felonies of 
a type not normally involving danger of death or 
serious bodily harm.”

We have thoroughly explored the digests and the elec­
tronic case retrieval systems, and our research discloses 
only one appellate decision discussing Fourth Amendment 
limitations on the use of deadly force to capture a fleeing 
suspect. In Jenkins v. Averett, 424 F.2d 1228 (4th Cir.



A50

1970), a black youth took flight at night. The police of­
ficer cornered the boy and shot him. The District Court 
dismissed the federal constitutional claim. Applying a 
Fourth Amendment analysis, the Fourth Circuit in an opin­
ion by Judge Sobeloff reversed. Holding that the Fourth 
Amendment “shield covers the individual’s physical in­
tegrity,” the Court found a constitutional violation because 
“our plaintiff was subject to the reckless use of excessive 
force.” 424 F.2d at 1232.

The only other discussion of the reasonableness of the 
use of deadly force by police in a Fourth Amendment con­
text is that of Chief Justice Burger in his dissenting opinion 
in Bivens v. Six Unknown Federal Narcotic Agents, 403 
U.S. 388 (1971). In Bivens the Court held that the Fourth 
Amendment creates a direct constitutional tort claim for 
violation of a citizen’s right to be free of illegal searches 
of the home and seizures of the person. Although Bivens 
was not a fleeing felon case. Chief Justice Burger, in the 
course of his Fourth Amendment analysis in dissent, ob­
served:

I wonder what would be the judicial response to a 
police order authorizing ‘shoot to kill’ with respect to 
every fugitive. It is easy to predict our collective 
wrath and outrage. We, in common with all rational 
minds, would say that the police response must relate 
to the gravity and need; that a ‘shoot’ order might con­
ceivably be tolerable to prevent the escape of a con­
victed killer but surely not for car thieves, pickpockets 
or a shoplifter. Bivens v. Six Unknown Agents, 403 
U.S. 388, 411 (1971) (Burger, C.J., dissenting) (em­
phasis added).

The Sixth Circuit long ago in United States v. Clark, 31 
F. 710 (6th Cir. 1887), expressed similar doubts about the



A51

validity of a rule allowing deadly force against all fleeing 
felony suspects:

Suppose, for example, a person were arrested for 
petit larceny, which is a felony at the common law, 
might an officer under any circumstances be justified 
in killing him? I think not. The punishment is al­
together too disproportionate to the magnitude of the 
offense.

Id. at 713.

The Tennessee statute in question here is invalid be­
cause it does not put sufficient limits on the use of deadly 
force. It is “too disproportionate.” It does not make dis­
tinctions based on “gravity and need” nor on the “the 
magnitude of the offense.” Before taking the drastic 
measure of using deadly force as a last resort against a flee­
ing suspect, officers should have probable cause to believe 
not simply that the suspect has committed some felony. 
They should have probable cause also to believe that the 
suspect poses a threat to the safety of the officers or a 
danger to the community if left at large. The officers 
may be justified in using deadly force if the suspect has 
committed a violent crime or if they have probable cause 
to believe that he is armed or that he will endanger the 
physical safety of others if not captured. A statute which 
allows officers to kill any unarmed fleeing felon does not 
meet this standard and is therefore invalid.

After oral argument in this case, upon motion, the 
Court permitted the state of Tennessee, through its Attor­
ney General, William M. Leach, Jr., to intervene as a party 
under 28 U.S.C. § 2403 (c) for the purpose of defending the 
constitutionality of T.C.A. § 40-7-108. The State has filed 
an able brief. It concedes that Tennessee courts and law 
enforcement agencies interpret the statute to permit the



A52

use of deadly force against any fleeing felon, whatever the 
felony, “when no lesser means of apprehension reasonably 
appears available.” (Brief, p. 5.) The State’s brief argues, 
however, that we should not reach the issue of whether 
Tennessee’s rule may be constitutionally applied to a non- 
dangerous felon fleeing from a non-violent felony because 
here the officer “could not be certain whether there was 
an accomplice in the burglarized house, or in the area, and 
whether the accomplice might be armed.” (Brief, p. 6.)

This argument almost always permits the officer to 
shoot to kill. The officer will seldom be absolutely certain 
of the situation. The Fourth Amendment resolves this 
problem, however. It requires probable cause — an ob­
jective, reasonable basis in fact to believe that the felon is 
dangerous or has committed a violent crime. There is 
no evidence to support such a finding in this case, although 
as the state argues, and as the District Court found, the 
officer was not certain on this point. The officer knew 
only that he was dealing with a youth who had committed 
a non-violent felony and was apparently unarmed. We do 
not have to hold the District Judge’s findings clearly erro­
neous in order to reach this result, because the facts, as 
found, did not justify the use of deadly force under the 
Fourth Amendment.

An analysis of the facts of this case under the Due 
Process Clause of the Fourteenth Amendment leads us to 
a similar result. That clause prohibits any State from 
depriving “any person of life, liberty, or property, without 
due process of law.” U.S. Const. Amend. XIV. The right 
to life, expressly protected by the Constitution, has been 
recognized repeatedly by the Supreme Court as funda­
mental in the due process and equal protection contexts. 
Yick Wo V. Hopkins, 118 U.S. 356, 370 (1886) (the fun­
damental rights “to life, liberty and the pursuit of hap-



A53

piness” ); Johnson v. Zerhst, 304 U.S. 458, 462 (1938) (“the 
fundamental human rights of life and liberty” ); Roe v. 
Wade, 410 U.S. 113 (1973) (right to life protected by 
Fourteenth Amendment when fetus becomes viable).

When a fundamental right is involved, due process re­
quires a state to justify any action affecting that right by 
demonstrating a compelling state interest. Roe v. Wade, 
supra; Mattis v. Schnarr, 547 F.2d 1007, 1019 (8th Cir. 
1976) (en banc). Laws which infringe on fundamental 
rights must be “narrowly drawn to express only the legit­
imate state interests at stake.” Roe v. Wade, supra. The 
law challenged here is not so narrowly drawn. Certainly 
there are state interests in law enforcement served by this 
law which allow police to shoot all fleeing felons. Those 
interests are compelling when the fleeing felon poses a 
danger to the safety of others. We do not consider these 
interests sufficiently compelling to justify the use of deadly 
force to protect only property rights.

As the Eighth Circuit pointed out in striking down a 
similar law:

We find nothing in this record . . .  to support the 
contention of the state that statutes as broad as these 
deter crime, insure public safety or protect life. Fel­
onies are infinite in their complexity, ranging from the 
violent to the victimless. The police officer cannot 
be constitutionally vested with the power and author­
ity to kill any and all escaping felons, including the 
thief who steals an ear of corn, as well as one who 
kills and ravishes at will.

Mattis V. Schnjarr, supra at 1019-20 (footnote omitted). 
Where, as here, human life is the right at stake, a statute 
that sweeps as broadly as this one violates due process of 
law and must be struck down.



A54

The principles and distinctions we have enunciated 
here have been cast in the form of a rule by the American 
Law Institute in the Model Penal Code, a rule which ac­
curately states Fourth Amendment limitations on the use 
of deadly force against fleeing felons:

The use of deadly force is not justifiable . . . unless 
(i) the arrest is for a felony, and (ii) the person ef­
fecting the arrest is authorized to act as a peace officer 
or is assisting a person whom he believes to be au­
thorized to act as a peace officer; and (iii) the actor 
believes that the force employed creates no substantial 
risk of injury to innocent persons; and (iv) the actor 
believes that (1) the crime for which the arrest is 
made involved conduct including the use or threatened 
use of deadly force; or (2) there is a substantial risk 
that the person to be arrested will cause death or 
serious bodily harm if his apprehension is delayed.

Model Penal Code § 3.07 (2) (b) (Proposed Official Draft, 
1962).

Our holding here under the Fourth Amendment is not 
inconsistent with our holdings in Wiley v. Memphis Police 
Department, 548 F.2d 1247 (6th Cir. 1977), and Beech v. 
Melancon, 465 F.2d 425 (6th Cir. 1972), or the three judge 
District Court opinion in Cunningham v. Ellington, 323 F. 
Supp. 1072 (W.D. Tenn. 1971), in all of which youths were 
killed by the Memphis police while fleeing from the com­
mission of a burglary. In each of those cases the Tennessee 
statute was drawn into question under the “cruel and un­
usual punishment” clause of the Eighth Amendment and 
under the Fourteenth Amendment as a matter of sub­
stantive due process. In none of these cases was a Fourth 
Amendment question raised, discussed, mentioned or de­
cided. Fourth Amendment considerations were not argued.



A55

Moreover, in each of the cases the narrow question before 
the court was whether the police officer who shot the 
fleeing boy was entitled to a good faith privilege against 
liability based upon his reliance upon the Tennessee statute. 
In each case the court held, just as we held in our previous 
decision in this case, Garner v. City of Memphis, supra, that 
the officer is insulated from personal liability by a good 
faith privilege which entitles him to rely upon the Ten­
nessee statute. This is the ratio decidendi of each of those 
cases. In those cases it was unnecessary to reach the con­
stitutionality of the statute in order to decide the question 
of the officers’ immunity, and in any event, no Fourth 
Amendment question was raised in any of the cases.

m.
In his opinion of July 8, 1981, Judge Wellford held 

that although Owen v. City of Independence, 445 U.S. 622 
(1980), precludes the city of Memphis from claiming im­
munity based on the good faith of its police officers, that 
opinion left open the question whether the City could 
claim immunity for its good faith reliance on a facially 
valid state law in enacting City police regulations. Be­
cause he found no violation of Garner’s constitutional 
rights, the Judge did not have to answer this question. 
In light of our finding of a constitutional violation, we 
must reach this question; in doing so, we hold that there 
is no good faith immunity for municipalities under § 1983.

The reasoning underlying the Supreme Court’s decision 
in Owen, supra, precludes a municipality’s claim of good 
faith immunity under § 1983 altogether. Justice Brennan, 
speaking for the Court in Owen, gave two major reasons 
why good faith immunity of city officials should not be 
extended to municipalities themselves. First he pointed 
out that at common law, which is the source of immunities



A56

under § 1983, there was no good faith immunity for gov­
ernmental entities. Id. at 640. Sovereign immunity at 
common law was unrelated to the question of good faith 
and was waived when the government consented to suit 
as it does under § 1983. Immunity for discretionary func­
tions, the only other governmental immunity at common 
law, involved concerns of separation of powers, unrelated 
to good faith. Because a municipality has no “discretion” 
to violate constitutional rights of its citizens, this tradi­
tional form of immunity does not come into play. There 
is no common law analogue which would suggest that 
municipalities have immunity for good faith reliance on 
state law under § 1983;

Second, Justice Brennan discussed the public policy 
considerations which justify individual good faith immu­
nity and found that they did not weigh heavily in favor of 
governmental immunity. The two considerations are (1) 
the injustice of forcing an individual whose position re­
quires him to exercise discretion to bear the cost of his 
good faith reliance on a law or regulation; and (2) the 
danger that the threat of liability would deter individuals 
from executing the duties of their offices or even from seek­
ing public office. Id. at 654. When a municipality is held 
liable, whether for the actions of its officials, or based on 
its own reliance on state law, no single individual or of­
ficial must bear the cost. The cost is spread among the 
general public, which is ultimately responsible for the 
conduct of its officials. There is little danger that individ­
uals will hesitate to carry out their duties or accept public 
office, when any liability for their reliance on state law 
will be paid from the public fisc.

In a well-reasoned opinion, the Tenth Circuit sitting en 
hanc, held that good faith reliance by a school district on 
the prior law of the circuit provided no independent pro-



A57

tection from liability for wrongful dismissal of a teacher. 
Bertot V. School District No. 1, Albany County, 613 F.2d 
245, 151 (10th Cir. 1979). It held that the remedying 
of deprivations of fundamental constitutional rights must 
be of primary concern to courts and other governmental 
bodies. A rule imposing liability despite good faith reli­
ance insures that if governmental officials err, they will 
do so on the side of protecting constitutional rights. It also 
serves the desirable goal of spreading the cost of uncon­
stitutional governmental conduct among the taxpayers who 
are ultimately responsible for it. Id. at 252.

Neither the District Judge nor the City of Memphis 
has offered any reason why the courts should expand the 
doctrine of good faith immunity under § 1983. The con­
siderations which prompted the Supreme Court in Owen 
to deny good faith immunity to municipalities for the acts 
of their officials apply with equal force to this case.

Accordingly, the judgment of the District Court is re­
versed and the case remanded for further proceedings con­
sistent with this opinion.



A58

(Filed September 26,1983)

No. 81-5605

UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, 
Plaintiff-Appellant,

V.

MEMPHIS POLICE DEPARTMENT, et al., 
Defendants-Appellees.

ORDER DENYING PETITION FOR 
REHEARING EN BANC

Before: EDWARDS, Chief Judge; KEITH and MERRITT,
Circuit Judges

A majority of the Court having not voted in favor 
of an en banc rehearing, the petitions for rehearing have 
been referred to the hearing panel for disposition.

Upon consideration, it is ORDERED that the petitions 
for rehearing be and hereby are denied.

ENTERED BY ORDER OF THE 
COURT

/s /  John P. Hehman 
Clerk



' J s .