Reply Brief of the Appellant

    No. 83-1035

In The

Supreme Qlourt of tl}E llnftcii ^atco
October Term, 1984

State Of Tennessee, 
Appellant, 

vs.
Cleamtee Garner, 

Appellee.

On Appeal from the United States Court of Appeals 
for the Sixth Circuit

REPLY BRIEF OF THE APPELLANT

W. J. M ichael Cody 
Attorney General & Reporter 
State of Tennessee

Jerry L. Smith 
Assistant Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37219-5025 
(615) 741-6439

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477





TABLE OF CONTENTS

Argument:

I. Universal Acceptance Of The Common-Law
Rule Respecting The Use Of Deadly Force To 
Arrest At The Time Of Adoption Of The 
Fourth Amendment Is Of Particular 
R elevance In Determining The 
Reasonableness Of A Seizure Under The 
Fourth Amendment........................................

II. The Appellee Is Asking The Court To An­
nounce A Constitutional Doctrine Where 
Judicial Restraint Is Counselled.....................

III. Section 40-7-108 Is Constitutional As Applied 
To The Facts Of This Case; It Therefore Can­
not Be Said To Be Facially Unconstitutional .

Conclusion......................................................................

Page

6

9

TABLE OF AUTHORITIES

Cases Cited:

Camara v. Municipal Court, 387 U.S. 523, 539 (1967) .. 3

Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.
Tenn. 1971).............................................................  3,4

Duncan v. Louisiana, 391 U.S. 145, 159 (1968).............  7

Furman v. Georgia, 408 U.S. 238, 383 (1972).................  6

Garner v. Memphis Police Department, 600 F.2d 52,
54(6thCir. 1979).....................................................  6

Human v. Goodman, 159 Tenn. 241 (1929)...................  8



Jones V. Marshall, 528 F.2d 132, 142 (2d Cir. 1975) . . . .  4

Love V. Bass, 145 Tenn. 522 (1921)................................. 8

Marshall v. Barlow’s, Inc., 436 U.S. 307, 315-316
(1978).......................................................................  3

Mattis V. Schnarr, 547 F.2d 1(X)7, 1021 (8th Cir, 1976) . .  3,4

Payton V. New York, 445 U.S. 573, 591 (1980).............  2,3

Reneau v. State, 70 Tenn. 720 (1879)............................... 8

Roe V. Wade, 410 U.S. 113, 177, 178............................... 9

Scarborough v. State, 168 Tenn. 106 (1934)...................  8

Solem V. Helm, 103 S.Ct. 3001, 3023 (1983)...................  7

State V. Boles, 598 S.W.2d 821 (Tenn. Crim. App.
1980)......................................................................... 8

State V. Dunn, 282 S.W.2d 203 (Tenn. App. 1943)........ 8

Taylor v. State, 157 Tenn. 421, 426 (1928).....................  8

Village of Hoffman Est. v. Flipside, Hoffman Est., 455
U.S. 489 (1982)........................................................ 9

Whalen v. Roe, 429 U.S. 589, 597 (1977).......................  6

Wiley V. Memphis Police Department, 548 F.2d 1247
(6th Cir. 1977).................................................. 3,4

Yick Wo V. Hopkins, 118 U.S. 356(1886) .....................  9

Federal Statutes and Regulations:

Act of April 30, 1790, Ch. IX,
IStat. 112.....................................................    3

11



Ill

State Statutes and Regulations:

Tennessee Code Annotated § 39-3-401 ........................... 7

Tennessee Code Annotated § 40-7-108............................ 1,2,6,8

Other Authorities:

American Law Institute’s Model Penal Code
Section 3 .0 7 .............................................................  5

Section 3.07(2)(b)...................................................  4,5

Section 3.07(3).........................................................  4

Restatement of Torts Section 131 ..................................  5





No. 83-1035

In The

Supreme dourt of ti}e Enitcb SlatEo
October Term, 1984

State Of Tennessee, 
Appellant, 

vs.
Cleamtee Garner, 

Appellee.

On Appeal from the United States Court of Appeals 
for the Sixth Circuit

REPLY BRIEF OF THE APPELLANT

This case involves the constitutionality of Tennessee Code 
Annotated Sec. 40-7-108, which provides:

Resistance to officer.—If, after notice of the intention to 
arrest the defendant, he either flee or forcibly resist, the of­
ficer may use all the necessary means to effect the arrest.

At issue is whether this statute is constitutionally invalid because 
it permits police officers to use deadly force as a last resort to ef­
fect the apprehension of a fleeing felony suspect in the absence 
of probable cause on the part of police to believe the suspect is 
dangerous or has committed a violent crime. The District Court 
found the statute was not unconstitutional and that the wisdom



-  2

of the State’s deadly force policy is one properly left to the 
legislature. The Court of Appeals, however, reversed the 
District Court and held the statute unconstitutional on its face 
under the Fourth and Fourteenth Amendments to the United 
States Constitution because the statute was not drawn so as to 
permit the use of deadly force as a last resort to arrest only upon 
a finding by police of probable cause to believe the fleeing 
suspect was dangerous or had committed a violent crime.

The issue presented to the Court in this appeal is whether 
Tennessee Code Annotated Sec. 40-7-108 is constitutional under 
the Fourth and Fourteenth Amendments to the United States 
Constitution.

I. Universal Acceptance Of The Common-Law Rule Respec­
ting The Use Of Deadly Force To Arrest At The Time Of 
Adoption Of The Fourth Amendment Is Of Particular 
Relevance In Determining The Reasonableness Of A 
Seizure Under The Fourth Amendment.

Appellee suggests the curtailment of the death penalty for all 
felonies except murder under special aggravating circumstances, 
and the development of modern technology in the law enforce­
ment area renders the common-law rule respecting the use of 
deadly force to arrest unreasonable. Certainly, the Fourth 
Amendment is not static in its application; however:

An examination of the common-law understanding of an 
officer’s authority to arrest sheds light on the obviously 
relevant if not entirely dispostive, consideration of what 
the Framers of the [Fourth] Amendment might have 
thought to be reasonable.

Payton v. New York, 445 U.S. 573, 591 (1980).

At the time of the adoption of the Fourth Amendment, the 
common-law rule respecting the use of deadly force was univer­
sally recognized. Appellee’s suggestion that this was so only 
because felonies were punishable by death at the time is refuted



by the fact that the penal statute enacted by the First Congress 
created certain felonies in addition to those at common-law and 
made many of those felonies punishable by a term of imprison­
ment rather than by death. See, Act of April 30, 1790, ch. IX, 1 
Stat. 112. Although a number of states have legislatively moved 
to a more restrictive deadly force policy than the common-law 
rule, and a few have judicially created a more restrictive 
privilege, the common-law rule remains widespread among the 
states. The attitudes of many judges who have considered the 
question of the constitutionality of the common-law rule in re­
cent years regarding its necessity and viability would indicate the 
rule is not so out of balance with contemporary norms and con­
ditions that it should be jettisoned as violative of the Constitu­
tion. See, e.g., Wiley v. Memphis Police Department, 5 2 d  
1247 (6th Cir. 1977); Mattis v. Schnarr, SAl F.2d 1007, 1021 (8th 
Cir. 1976) (Gibson, C.J., dissenting); Cunningham v. Ellington, 
323 F.Supp. 1072 (W.D. Tenn. 1971) [Three (3) Judge Panel].

The ultimate test under the Fourth Amendment is one of 
“ reasonableness.” Marshall v. Barlow's, Inc., 436 U.S. 307, 
315-316 (1978); Camara v. Municipal Court, 387 U.S. 523, 539 
(1967). The common-law rule respecting the use of deadly force 
to arrest has for centuries, and until the present day been 
thought by many states to be “ reasonable” in accommodating 
effective law enforcement with the rights of criminal suspects. 
The Court should refrain from declaring as unreasonable “ a 
practice which has been thought entirely reasonable by so many 
for so long.” See, Payton v. New York, supra, at 620 (White, 
J., dissenting) (dealing with warrantless home arrests).

II. The Appellee Is Asking The Court To Announce A Con­
stitutional Doctrine Where Judicial Restraint Is Counsell­
ed.

—  3 —

The appellant submits that the instant case presents a situa­
tion where judicial restraint is cautioned. Indeed, this has been 
the approach of most judges who have considered the question 
of the constitutionality of the common-law rule respecting the



—  4  —

use of deadly force to arrest. As the Second Circuit Court of 
Appeals wrote in upholding Connecticut’s codification of the 
common-law rule:

This would seem peculiarly to be one of those areas where 
some room must be left to the individual states to place a 
higher value on the interest in this case of peace, order, and 
vigorous law enforcement, than on the rights of in­
dividuals reasonably suspected to have engaged in the com­
mission of a serious crime.

Jones V. Marshall, 528 F.2d 132, 142 (2d Cir. 1975) (per Oakes, 
J.).

Implicit in the Jones case, the dissent in Mattis v. Schnarr, 
supra, the holding in Wiley v. Memphis Police Department, 
supra, and the holding in Cunningham v. Ellington, supra, is a 
recognition that no single principle that seeks to accommodate 
society’s interests with those of the fleeing suspect’s is free from 
contradictions and ironies. Instead, all rules which seek to 
reach such an accommodation are based upon extremely dif­
ficult moral and philos^ophical choices^which require abalance 
of values that is singularly suited for legislative rather than 
judicial resolution.

In this case, appellee asks this Court to affirm the action of 
the Court of Appeals in essentially adopting the American Law 
Institute’s Model Penal Code Sec. 3.07(2)(b) (Official Draft, 
1962) as the constitutional standard for the use of deadly force 
to arrest. 710 F.2d at 247; (JS. App. A-13, A-14). However, 
the Court of Appeals adopted this standard without inquiry as 
to whether other rules on the use of deadly force might not be 
equally reasonable. There is nothing to suggest that the Model 
Penal Code was meant to be a constitutional standard. Ironical­
ly, while not permitting the use of deadly force to arrest in the 
instant situation, the Model Penal Code Sec. 3.07(3) (Official 
Draft 1962), would apparently permit an officer to use deadly 
force as a last resort to prevent the escape from jail of a person 
detained awaiting trial on a misdemeanor. In fact, the



5 —

American law Institute has not only changed its position over 
the years, and not always in the direction of a more restrictive 
rule, but the ALI has simultaneously espoused different rules in 
different projects. For example, in contrast to Model Penal 
Code Sec. 3.07(2)(b) respecting an officer’s criminal liability for 
using deadly force, the All’s Restatement (second) of Torts, 
Sec. 131 (1965), adopts the common-law rule respecting the use 
of deadly force in determining when an officer may be civilly 
liable. It is apparent the ALI did not arrive at the common-law 
rule for civil liability without considering other alternatives. In 
fact, in the first Restatement of Torts Sec. 131 (1934), the use of 
deadly force was permitted as a last resort to arrest only when 
the officer is arresting for treason, for felonies normally involv­
ing the threat of violence, or for burglary of a dwelling. Thus, 
the ALI has moved from a more restrictive deadly force policy 
to the common-law rule in its determination of civil responsibili­
ty for the use of deadly force.

The commentators in the area have also disagreed as to the 
appropriate formulation of a rule respecting deadly force to ar­
rest. Professor Henry Hart of the Model Penal Code Advisory 
Committee would have declared the use of deadly force to arrest 
unreasonable unless postponement of arrest would be “con­
trary to the public interest” because of one or more of some 
four (4) factors including the officer’s knowledge of the 
suspect’s criminal record, the risk of immediate danger the 
suspect poses, and the degree of probability the suspect cannot 
be identified and arrested at a later time. See, Model Penal 
Code, Tentative Draft No. 8, Sec. 3.07 at 60 (1958). Professor 
John Barker Waite provided a cogent defense of the common- 
law rule in his dissent from the Model Penal Code’s restrictive 
deadly force provisions. See, Model Penal Code, Tentative 
Drafts Nos. 8, 9 and 10, pp. 60-62.

These standards discussed above illustrate the wide variety of 
rules thought to be reasonable in this area. They also tend to il­
lustrate that the moral and social judgments underlying each



6 —

rule should be expressed through the legislative branch of 
government rather than the judiciary. Sec. 40-7-108 is but a 
legislative enactment that, as construed by the state courts, ex­
empts an officer from criminal and civil liability under state law 
for the use of necessary force in making an arrest. Constitu­
tional questions arise concerning the statute in this case only 
because of the qualified immunity under 42 U.S.C. §1983 defen­
dants might claim in reliance on the privilege the statute grants. 
See, Garner v. Memphis Police Department, 600 F.2d 52, 54 
(6th Cir. 1979). Appellee in effect asks this Court to declare this 
statute to be immoral, unwise, and no longer needed because 
advances in the technology of law enforcement have reduced the 
justification for the common-law rule. Appellee’s brief at pp. 
46-48. Appellant submits, however, that:

[I]n a democratic society legislatures, not courts, are con­
stituted to respond to the will and consequently the moral 
values of the people.

Furman v. Georgia, 408 U.S. 238, 383 (1972) (Burger, J., 
dissenting). State legislation such as that involved in the instant 
case which may have some effect on individual liberty should 
not be held unconstitutional because a court finds it unwise or 
unnecessary in light of modern conditions. The apprehension 
of persons suspected of crimes is one of vital public concern; as 
such this Court has recognized the states should have broad 
latitude in experimenting with possible solutions to such pro­
blems. Whalen v. Roe, 429 U.S. 589, 597 (1977).

III. Section 40-7-108 Is Constitutional As Applied To The 
Facts Of This Case; It Therefore Cannot Be Said To Be 
Facially Unconstitutional.

Appellee suggests this case presents facts which indicated to 
Officer Hymon that Eugene Garner was at most a suspect flee­
ing a non-violent crime, one who posed no immediate danger to 
anyone. Appellee’s brief at pp. 31-32. Thus, appellee and the



7

Court of Appeals suggest the instant case can be equated with 
one involving an attempt to arrest a shoplifter, a tax evader or a 
petty thief. Appellee’s brief at pp. 50-51; 710 F.2d at 244; (JS. 
App. p. A-8). Of course, after the shooting it was determined 
that Garner had not harmed anyone in the burgled house, nor 
was he armed, but Officer Hymon did not have the benefit of 
this hindsight while attempting to apprehend Garner. As stated 
by the District Court:

The facts of this case did not indicate to Officer Hymon
that Garner was “non-dangerous.” (Pet. App. p. A-34)

Given the facts of this case as they confronted Officer Hymon, 
the appellant submits the use of deadly force to apprehend 
Garner was both reasonable and constitutional.

Burglary is a crime qualitatively different from that of 
shoplifting, tax evasion or petty thievery. Because of its direct 
invasion of a place of habitation, burglary of a residence, such 
as that involved here, has traditionally been placed in the 
category of one of the most serious of felonies. See, City’s Brief 
at pp. 23-26. Four members of this Court have expressed views 
that burglary is a crime which “cannot fairly be characterized as 
‘non-violent’.’’ And is, in fact, a crime having “harsh poten­
tialities for violence.” Solem v. Helm, ___ U.S. ____ , 103
S.Ct. 3001, 3023 (1983) (Burger, C. J., dissenting). In Ten­
nessee, the burglary for which Garner could have been con­
victed, had he been an adult, was first degree burglary, 
punishable by a term of imprisonment of five (5) to fifteen (15) 
years. Tennessee Code Annotated Sec. 39-3-401. Apart from 
the potential for violence involved in a residential burglary at 
night, the relatively lengthy penalty for the offense in which 
Garner was engaged indicates compelling interests in the ap­
prehension of burglars. See, Duncan v. Louisiana, 391 U.S. 
145, 159 (1968) (” [t]he penalty authorized by the law of the 
locality may be taken ‘as a guage of its social and ethical 
judgments,’ of the crime in question.” )



Thus, Officer Hymon was faced with a situation of attemp­
ting to arrest a suspect fleeing a crime that can be fairly 
characterized as one where the potential for violence is great, 
and one that society deems serious enough to punish by lengthy 
imprisonment. Hymon could not know Garner was not 
dangerous, nor could he know what Garner had done inside the 
burgled house. Surely, the state has compelling interests under 
such circumstances in preventing the escape of the fleeing 
suspect, and Hymon acted reasonably in using deadly force to 
prevent Garner’s escape when it could not be prevented by any 
less intrusive means.

Assuming arguendo that Sec. 40-7-108 could be construed as 
facially unconstitutional because it permits police to use deadly 
force as a last resort to capture known non-dangerous suspects, 
fleeing crimes not typically regarded as violent, i.e., the 
shoplifter, tax evader, or petty thief, that is not the situation in 
this case. Indeed, that question might never arise. Although 
the Tennessee courts have recognized the common-law rule 
respecting the use of deadly force to arrest, the state courts have 
actually sustained the privilege only in one case which involved a 
dangerous felony. Love v. Bass, 145 Tenn. 522 (1921) (suspect 
attempted to run down sheriff with automobile). In Scar­
borough V. State, 168 Tenn. 106 (1934), the privilege was not ac­
cepted as a defense to manslaughter prosecution for the 
shooting of a fleeing automobile thief not shown to be 
reasonably necessary. The cases of Johnson v. State, 173 Tenn. 
134 (1938); Human v. Goodman, 159 Tenn. 241 (1929); Reneau
V. State, 70 Tenn. 720 (1879); State v. Boles, 598 S.W.2d 821 
(Tenn. Grim. App. 1980); State v. Dunn, 282 S.W.2d 203 
(Tenn. App. 1943), all dealt with arrests for misdemeanors and 
thus declined to sustain a defense based on the common-law 
privilege. Interestingly, the Tennessee Supreme Court has in­
dicated the common-law privilege to use deadly force might not 
be extended to an officer who intentionally shoots to kill a non­
violent person reasonably suspected of committing only a minor 
felony. See, Taylor v. State, 157 Tenn. 421, 426 (1928).



The appellant submits this case presents a scenario where the 
statute can be constitutionally applied. This Court has not 
made a practice of striking down statutes as a whole, when cir­
cumstances could exist where the statutes may be constitutional­
ly applied. See, Village o f Hoffman Est. v. Flipside, Hoffman 
Est., 455 U.S. 489 (1982) (pre-enforcement challenge); Roe v. 
Wade, 410 U.S. 113, 177, 178 (Rehnquist, J., dissenting); Yick 
Wo V. Hopkins, 118 U.S. 356 (1886) (statute unconstitutional as 
applied).

CONCLUSION

For the reasons set forth above, and in the initial brief, the 
appellant respectfully requests that the decision of the Sixth Cir­
cuit Court of Appeals be reversed.

Respectfully submitted.

—  9 —

W. J. MICHAEL CODY 
Attorney General and Reporter

JERRY L. SMITH 
Assistant Attorney General 
450 James Robertson Parkway 
Nashville, Tennessee 37219-5025 
(615) 741-6439







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