Garner v. Memphis Police Department Sixth Circuit Court Opinion

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rant iiorfurmud laundry work ordinarily 
only u])on Uic esLahlishment’s own linon.s or 
falirics of those of its fruests." The Admin­
istrator later clian^ed this interpretation of 
the Act and now sui>ports the (losition ar­
gued by the Secretary of Labor.

The Administrator’s first interpretation 
seems to us more in line with the purpose of 
the 1966 legislation e.xcluding laundries 
from the small business exemption. 29 
U.S.C. § 213(a)(2). The Senate Committee 
on Labor and Public Welfare report on the 
legislation reads: “This section repeals the 
[existing] wage and overtime exem])tion ap- 
j)licable to employees in laundry and dry 
cleaning; cstablishincnls. [T|he
amendments provide for com­
plete protection for cm])loyees of
such establishments,’' S.Rep. No. M87, 89th 
Cong., 1st Sess. at 28 (1966) (emphasis add­
ed), U.S.Code Cong. & Admin.News 19(i6, 
pp. 3002, 3030. “ [WJhat Congress intended 
to accomplish was a sweeping coverage of 
the entire laundry industry." National Au- 
tematic Laundry and Cleaniiifr Council v. 
Ahul;.'.. M3 n.S.App.D.C. 274, 290, 443 F.2d 
6.S9, 706 (1071). Lominant segments of the 
industry sought the amendments. 7’hey 
were already paying the minimum wage 
and had to charge higher prices as a result. 
They sought coverage of the entire industry 
in order to remove the competitive price 
advantage of small operators. Ibid.

[1.2] A motel, however, is not usually 
considered "a laundry establishment” or a 
part of the “ laundry industry.” Congress 
was trying to put a floor under the wages 
paid by these establishments, but there is 
no indication that Congress was .so interest­
ed in obtiiining business for laundries that 
it intended that small retail businesses such 
as restaurants and motels should lose their 
minimum wage exemption because they 
wash their own laundry rather than send it 
outside to a “ laundry establishment.” We 
disagree with the recent decision of the 
Fifth Circuit to the contrary, (losselt v. 
I)u-Iia-K('l Corji., .669 F.2il H69 (197K). We 
construe the woi'ds (d‘ the stal.ute, “ employ­
ees engaged in laundering,” to mean "em­
ployees of laundering establishments” and

not emi)loyees of restaurants or motels who 
wash tablecloths, sheets and the like for use 
on the ijremises in the ordinary course of 
business. Not a single line or word of the 
legislative history suggests that Congress 
intended to extend the provision to include 
employees of businesses outside the laundry 
industry.

Accordingly, the judgment of the District 
Court is reversed.

[O  ̂lUY MIMBIR S'SIl m'

Cleamtee GARNER, father and next of 
kin of Eugene Garner, a deceased 

minor, Plaintiff-Appellant,

MEMPHIS POLICE DEPART.MENT, 
CITY OF MEMPHIS, TENNESSEE and 
Jay W. Hubbard and E. R. Hymon in 
their official capacities, Defendants-Ap- 
pellees.

No. 77-1089.

United States Court of Appeals,
Sixth Circuit.

Argued Feb. 14, 1979.

Decided June 18, 1979.

Father of youth brought action against 
city, municipal police officer and officials to 
recover for alleged wrongful death caused 
by constitutional violations when [joliceman 
shot and killed youth as he allegedly was 
escaping from the scene of a burglary. The 
United Slates District Courl for the West­
ern District of 'I'enne.ssee, Harry W. Widl- 
foi'd, ,1., dismisseil suit ag.limit city and 
against officer and his superiors, and plain­
tiff appealed. The Court of Ajijieals, Mer­
ritt, Circuit Judge, held that: (1) policeman

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was entitled to assert, as coni(ilete defense, 
a (|iialified “good faith” jirivilege or immu­
nity from liability for constitutional claims 
based on his reliance on Tennessee law 
which allows an officer to kill a fleeing 
felon rather than run the risk of allowing 
him to escape apprehension, and (2) liability 
of city under federal civil rights statute 
depended upon resolution of questions as to 
whether municipality had a ijualified immu­
nity or privilege based on good faith, 
whether municipality’s use of deadly force 
under state law was constitutionally per­
missible, whether municipality’s use of hol­
low jioint bullet was constitutionally per­
missible and whether officer’s conduct 
flowed from a "policy or custom” for which 
municipality could be liable in damages.

Case against city remanded for recon­
sideration.

U.S.G.A. S lP8;i; IJ.S.C.A.Const. Amends, d 
(>. «, Id; 'J’.C.A. § 40-808.

 ̂ Jack Greenberg, Charles Stephen Ralston, 
Steven L, Winter, New York City, Walter' 
L. Bailey, .Jr., D’Army Bailey, Memphis, 
renn., Avon N. Williams, Jr., Nashville, 
Tenn., for plaintiff-appellant.

Henry L. Klein, Memphis, Tenn., for de- 
fendants-appellees.

Before EDWARDS, Chief Judge and 
l i v e l y  and MERRITT, Circuit Judges.

1. Civil Rights <^i:i.8(4)

A city policeman who shot and killed a 
youth as he escaped from the scene of a 
burglary was entitled to assert, as comjdete 
defen.se U) civil rights action, a qualified 
“good faith” ijrivilege or immunity from 
liability for constitutional claims ba.sed on 
his reliance on Tennessee law wdiich allows 
an officer to kill a fleeing felon rather than 
run the risk of allowing him to escape ap­
prehension. 42 U.S.C.A. § 1983; U.S.C.A. 
Const. Amends. 4, 8, 14; T.C.A. § 40-808.

2. Civil Rights 0=13.8(3)

Liability of city under federal civil 
rights statute for shooting by city jiolice- 
man of youth as he escaped from scene of 
burglary depended ujion re.solution of ques­
tions as U) whether munici|)ality had a qual­
ified immunity or jirivilege based on good 
faith, whether municipality’s u.se of deadly 
force under stale law was constitutionally 
Iiermissible, whether municip.-dity’s u.se of 
hollow point bullet was constitutionally por- 
mi.ssible and whether officer’s conduct 
flowed from a "policy or custom” for which 
municijiality could be liable in damages. 42

MERRITT, Circuit Judge.

On the night of October 3, 1974, a fifteen 
year old, unarmed boy broke a window and 
entered an unoccuj)ied residence in subur­
ban Menijihis to steal money and jiroperty. 
Two jiolice officers, called to the scene by a 
neighbor, intercepted the youth as he ran 
from the back of the house to a si.x 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 feel 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 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 esca|)c.

Ihe District Court dismissed the suit of 
liecedent’s father brought against the City 
under 42 U.S.C. § 1983 (197C,) to recover 
damages for wrongful death cau.sed by 
claimed constitutional violations of the 
fourth, eighth and fourteenth amendment.s.
In accordance with then e.xisting law, the 
District Court held that a city is not a



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“ person” subject to suit under § 198t5; l)iil 
Monroe e. Pape, lUiO U.S. 167, 81 S.Ct. 478, 5 
L.E(1.2(1 492 (1961), in which the Supreme 
Court so ruled, was overruled on this point 
last term by the case of Monell v. Depart- 
nient o f Social Services, 436 U.S. 658, 98 
S.Cl. 2018, 56 L.E(i.2d 611 (1978). Follow­
ing a bench trial, the District Court also 
(iismi.ssed the case against the officer and 
his sui)criors holding, in accordance with 
our decisions in Beech v. Melancon, 465 F.2d 
425 (6th Cir. 1972), cert, denied, 409 U.S. 
1114, 93 S.Ct. 927, 34 L.Ed.2d 696 (1973); 
Qualls V. Parrish, 534 F.2d 690 (6th Cir. 
1976); and Wiley v. Memphis Police De­
partment, 548 F.2d 1247 ( 6th Cir.), cert, 
denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 
78 (1977), that the officers acted in good 
faith reliance on 'I’ennessee law which al­
lows an officer to kill a fleeing felon rather 
than run the risk of allowing him to escape 
apprehension,

|1| We conclude that the District Court 
did not err in finding that the individual 
defendants acted in goo<l faith reliance on 
Tenn. Ctxle Ann. § 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 interjiret- 
ed this sUilute as a codification of the com­
mon law rule allowing officers to kill flee­
ing felons rather than run the risk of per­
mitting 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 jjose 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 (juali- 
fied “ good faith” privilege or immunity 
from liability for constitutional claims, as 
announced in our previous decisions citi'd 
above, we affirm that portion of the Dis­
trict Court's Judgjiient dismi.ssing tlu’ case 
against the individual (l(Tendants,

12) We reverse and remand the case 
against the City, however, for reconsidera­
tion by the District Court in light of Monell 
V. Department o f 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, 98 S.Ct. 2018.

Our (irevious decisions do not establish 
the constitutionality of Tenn. Code Ann. 
§ 40-808, permitting a*city to authori7,e its 
offic(;rs to use deadly* force against a flee­
ing felon, nor have they established the 
constitutionality 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 un­
der 1983, and not liability based on the 
“ policy or custom” of a governmental enti­
ty. Those cases held that it “ would be 
unfair" to im|H)se liability on an officer 
“ who relied, in good faith, upon the settled 
law of his state that he relieved him from 
liability for the particular acts performed in 
his official ca|)acity.” Qualls v. Parrish, 
supra at 694, (pioted in Wiley v. Memphis 
Police Department, supra at 1253. The es­
sential holding of those cases was that an 
individual officer has a ijualificd privilege 
or immunity from liability for constitution­
al claims based on good faith performance 
of his duties in accordance with statutory or 
administrative authority, a holding subse­
quently approved by the Sujiremc Court in 
BuLz >■. Kconomou, 438 U.S. 478, 496 508, 98 
S.Ct. 2894, 57 L.Ed.2d 895 (1978). Although 
the ([ualified immunity (levoloi)ed in those 
cases insulates the officers and officials 
from personal liability in this case, as the 
District Court held, the following ()uestions 
in the cilsc against the city are still oi)en 
under Monell:

1. Does a municipality have a similar 
cpi.'dified iimniinlty or privilege based 
on good faith under M om 'll'! '

1. .S'ee ()is(aission of llii.s (luc.slion in /,/c/c V. ol I'rovidciice, r>K> 488 (D K I
1978).



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UNl'I'l'/l) STAT
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If not, is a municipality’s uso of dead­
ly force under Tennessee law to cap­
ture allegedly nondangerous felons 
fleeing from nonviolent crimes consti­
tutionally jiermissible under the 
fourth, sixth, eighth and fourteenth 
amendments? ^

Is the municipality’s use of hollow 
point bullets constitutionally permis­
sible under these provisions of the 
Constitution? ^

4. I f  the municipal conduct in any of 
these respects violates the Constitu­
tion, did the conduct flow from a 
“ policy or custom” for which the City 
is liable in damages under Moncll ? ^

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

2. See generally Coker v. Georgia, 43.3 U..S. 584, 
97 S.Ct. 2523, ,53 L.Ed.2d 653 (1977); Ingraham 
V. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 
L.Ed.2d 711 (1977); Gregg v. Georgia, 428 U.S. 
153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Fur­
man V. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 
L.Ed.2d 346 (1972); Landrum v. Moats, 576 
F.2d 1320 (8th Cir.), cert, denied, 439 U.S. 912, 
99 S.Ct. 282, 58 L.Ed.2d 258 (1978); Mattis v. 
Schnarr, 547 F.2d 1007 (8th Cir. 1976), vacated 
as advisory opinion sub nom. Ashcroft v. Mat­
tis, 431 U.S. 171, 97 S.Ct. 1739, 52 L.Ed.2d 219 
(1977); Jones v. Marshall, 528 F.2d 132 (2d Cir. 
1975); Day, Shooting the Fleeing Felon: State 
of the Law, 14 Crim.L.Bull. 285 (1978); Com- 
miMil, Deadly Force to Arrest: Triggering Con­
stitutional Review, 11 Harv.C.R.— C.l..L.Rcv. 
361 (1976).

3. Sec generally I’aii.sl. Does Yi>ur I’oliee Force 
Use Illegal Weapons? A Configuralive Ap­
proach to Decision Integrating International 
and Domestic U w , 18 llarv.Int'l L.J. 19 (1977).

KS V, UKNI'KO
,2U 5.4 (lli70)

IJNITKI) .STATKS of Americti,
Plain tiff-Appel lee,

V.

Andrew KCNFliO, Defendant-Appellant. 

No. 78-5482.

United States Court of Appeals,
Sixth Circuit.

Argued April 9, 1979.

Decided June 19, 1979.

Rehearing and Rehearjng En Banc
Denied July 31, 1979.

Defendant was convicted before the 
United States District Court for the East­
ern District of Michigan, Southern Division, 
Philip Pratt, J., of income tax evasion and 
failing to file, and he a|)pealed. The Court 
of Appeals, Cecil, Senior Circuit Judge, held 
that: (1) the prosecutor's sup[)osed improp­
er argument concerning expression of per­
sonal ojiinion of guilt, misstatements of law 
and fact and shifting burden of jiroof did 
not rise to level of plain error; (2) court 
properly instructed that jury could consider 
reason'ablencss of defendant’s ex|)lanation 
as to his increase in net worth as bearing on 
his consciousness of guilt; (3) in prosecution 
for income tax evasion and failure to file, 
admi.ssion of alleged hearsay testimony of

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; thir­
teen were black and five were youths. Accord­
ing to the same reports, Memphis police offi­
cers killed twenty-four individuals during this 
period in connection with crimes of violence or 
in self-defense; they attempted to use deadly 
force on 177 occasions, 114 of which were in 
connection with property crimes. See the orig­
inal certified appellate record, document 45. in 
Wiley V. Memphis Police Dep’l, 548 F.2d 1247 
(6lh Cir ), cert, denied, 434 U.S. 822, 98 S.Ct. 
65, 54 E.Ed.2d 78 (1977), as summarized in 
Comiiient. Deailly f  orce to Arrest: 'Triggering 
Constitulion,d Review, II llaiv.C.R.— CM..1.. 
Rev. 361, 362 ii. 4 (1976); Report. Teiiii. Adv. 
(.'oiiiiiiittee to U..S. Civ. Rights Coiiim'ii. Civic 
Crisis— Civil Challenge: Police-Community Re­
lations in Memphis 81 (1978).

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