Memorandum of Law

    IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

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

Plaintiff,
V.

MEMPHIS POLICE DEPARTMENT, CITY OF 
MEMPHIS, TENNESSEE: WYETH CHANDLER, 
Mayor of Memphis; and JAY W. HUBBARD, 
Director of Memphis Police,

Defendants.

CIVIL ACTION 
NO. C-75-145

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S MOTION 
FOR PARTIAL SUMMARY JUDGMENT ON THE QUESTION OP 
LIABILITY ________________________

I. THE CITY OF MEMPHIS IS LIABLE FOR AN UNCONSTITUTIONAL 
ACT BY ONE OF ITS EMPLOYEES DURING THE COURSE OF HIS 
EMPLOYMENT WHEN THERE IS AN OFFICIAL POLICY WHICH 
SANCTIONED THAT ACT _________________________________

In Tennessee v. Garner, 471 U.S. 85 L.Ed.2d 1
(1985), the Supreme Court held that the shooting in this 
case violated the fourth amendment because a nonviolent 
burglary suspect "may not be seize[d] ... by shooting him



dead." ]^. at 10. The only question is the city's lia­
bility under Monell v. Dept, of Social Services  ̂ 436 U.S.
658 (1978). "[W]hen execution of a government's policy or 
custom, whether made by its lawmakers or by those whose 
edicts or acts may fairly be said to represent official 
policy, inflicts the injury ... the government as an entity 
is responsible under § 1983." Monell, 436 U.S. at 695.

In two recent cases —  Pembaur v. Cincinnati, 479 U.S.
, 89 L.Ed.2d 452 (1986), and Oklahoma City v. Tuttle, 471

U.S. ___, 85 L.Ed.2d 791 (1985) —  the Court has further
filled in the contours of Monell liability. "[T]here must
be an affirmative link between the policy and the particular
constitutional violation...." Tuttle, 85 L.Ed.2d at 804.
That link may be forged when "proof of the incident includes
proof that it was caused by an existing, unconstitutional
municipal policy, which policy can be attributed to a

1
municipal policymaker." In Pembaur, the Court
clarified both aspects of this standard. First, it clari­
fied that "Monell is a case about responsibility." Pembaur, 
89 L.Ed.2d at 462. A city is responsible for the "acts 'of 
the municipality' —  that is acts which the municipality has 
officially sanctioned or ordered." at 463. Second, it

Although Tuttle was only a plurality opinion, the 
concurring Justices (Brennan, Marshall, and Blackmun) and 
the dissent (Stevens) supported a less rigorous standard. 
Accordingly, all Justices would appear to support Monell 
liability when, as here, the plurality's standard is met.

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held that: "Municipal liability attaches only where the
decisionmaker possesses final authority to establish
municipal policy with respect to the action ordered." Id.

2
at 464.

When viewed under these standards, it is quite clear 
that plaintiff is entitled to summary judgment on the 
question of liability. For as we show below, there can be 
no dispute that: (1) the city had an explicit written policy 
that sanctioned the shooting in this case; (2) the policy 
authorized precisely what the Supreme Court in Garner held 
unconstitutional; (3) this policy was adopted by the Mayor 
and Director of Police —  authorized municipal policymakers 
—  after careful consideration and deliberation; and (4) the 
shooting of young Garner was pursuant to this municipal 
authorization.

The Memphis Deadly Force Policy, Order 5-74 attached as 
Exhibit 1 , specifically sanctioned the shooting in this 
case, which was held unconstitutional by the Court. The 
policy stated explicitly that it was designed "to define

Although Justice O'Connor did not join in this portion of 
the majority opinion, she did join in Justice White's 
concurring opinion which would impose liability on the 
municipality when an officer with final authority to speak 
for the municipality adopts a policy that has not yet been 
declared unconstitutional. This, of course, is precisely 
our case: When the Memphis deadly force policy was adopted
by the Mayor and Director of Police, no court had held such 
a policy unconstitutional. Accordingly, it is clear that 
under Pembaur, six Justices would find municipal liabilty in 
a case such as ours.

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circuinstances under which Deadly Force and Non—Deadly Force 
may be used to prevent the commission of an offense and to 
effect an arrest." Exhibit 1. Section 3(b)(3)(h) of 
the policy specifically authorized the use of deadly force 
to prevent flight from burglaries of the Ist^ 2nd, or 3rd 
degrees. Exhibit 1 at 2. This is the explicit policy 
that authorized the shooting of Edward Eugene Garner.

It should be clear that this policy is precisely what 
the Supreme Court disapproved in Garner. The Court held not 
only that the shooting in this case was unconstitutional, 85 
L.Ed.2d at 15-16, but also that flight from a burglary is 
not sufficient probable cause to believe the suspect 
dangerous —  that burglary is not an inherently dangerous or 
violent crime. ., 85 L.Ed.2d at 16. Thus, the Memphis 
policy that authorized the shooting in this case was 
premised on the precise factor that the Garner Court held 
insufficient. But, this was the official policy of the 
Memphis Police Department signed by J. W. Hubbard, the 
former director of police for the city of Memphis.

Section 3(b)(3)(h) of the Memphis Deadly Force policy 
was a considered policy choice, "consciously chosen from 
among various alternatives...." Tuttle, 85 L.Ed.2d at 804.
It was adopted by the senior municipal policymakers: the 
Mayor, Wyeth Chandler, and the police director, Hubbard. 
Mayor Chandler testified in deposition that he carefully

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considered and personally approved the policy's inclusion of 
burglary as an underlying offense justifying the use of 
deadly force to prevent flight. The Mayor, in his role as 
ultimate municipal decisionmaker, had a clear view of the 
policy that he wanted to be implemented by the Memphis 
police force: "I just don't think we ought to let people go
in and out at will, invade people's homes, businesses or 
anything else, and, then, get away by simply running away 
..." Exhibit 2 at 3. "I don't think he [any burglar] should 
be allowed to just burgle at will as long as he can outrun 
the police." Exhibit 2 at 33. Indeed at the very time the 
Mayor acted to exempt joy riders from the use of deadly 
force to prevent their escape, he reaffirmed its use in any 
burglary, without regard to the circumstances: "It was my
opinion then and still is at this time that those [3rd 
degree burglary suspects] should not be eliminated from the 
fleeing felon policy." Exhibit 2 at 30.

Finally, it is also clear that the Memphis deadly force 
policy was adhered to by the police officer and caused 
Edward Eugene Garner's death; it was "the moving force of 
the constitutional violation." The officer was taught that 
it was proper to kill a fleeing felon rather than run the 
risk of allowing him to escape. Garner, 600 F.2d 52, 53 
(6th Cir. 1979). This is confirmed by the testimony at the

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1976 trial which established that the firearms review board 
found that the use of deadly force in this case was justi­
fied and within policy. Trial Transcript at 608-25, 648.

In sum, Memphis's policy was deliberately adopted by 
its senior policymakers and authorized the shooting in this 
case. Under Monell, therefore, the city is liable.

II. THE CITY HAS NO GOOD FAITH OR QUALIFIED IMMUNITY 
DEFENSE

In previous submissions, the city has attempted to 
raise the issue of a putative good faith immunity for a 
municipality similar to that accorded an individual defen­
dant. Compare Garner, 600 F.2d at 51.

On the previous appeal, the city raised the identical 
claim of good faith immunity. The court of appeals rejected 
it. Garner v. Memphis Police Department, 710 F.2d 240,
248-49 (6th Cir. 1983). In its petition for a writ of 
certiorari in the Supreme Court, the city did not challenge 
that aspect of the court's decision. Thus, the Sixth 
Circuit's ruling is the "law of the case." Petition of 
United States Steel Corp, 479 F.2d 489, 493-94 (6th Cir.

1973).
Moreover, this ruling is plainly correct. On the prior 

appeal, the court of appeals rejected the city's argument 
that there is a good faith immunity for a municipality. The 
court held that "the reasoning underlying the Supreme Court's

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decision in Owen [v. City of Independence  ̂ 445 U.S. 622 
(1980)], precludes a municipality's claim of good faith 
immunity under § 1983 altogether." Garner, 710 F.3d at 

248.
Review of the Owen decision confirms the court's 

determination. Owen rejected the very arguments asserted by 
the city in this case. Owen concerned "the question whether 
local governments, although not entitled to an absolute 
immunity, should be afforded some form of official immunity 
in § 1983 suits." Owen, 445 U.S. at 624. The Eighth 
Circuit said yes; the Supreme Court reversed. at 625.
In Owen, the City of Independence made the same argument 
made by the City of Memphis here: that because the govern­
ing constitutional rule had not been declared until after 
the violation, "officials of the City ... could not have 
been aware of [petitioner's] right" and, therefore, "[t]he
City __ should not be charged with predicting the future
course of constitutional law." ^d. at 634 (quoting the 
Eighth Circuit decision, 589 F.2d 335, 338 (8th Cir. 1978)). 
The Supreme Court "disagree[d] with this holding." at
635. "In sum," the Court held "that municipalities have no 
immunity from damages liability flowing from their con­
stitutional violations...." Id. at 657.

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There is no intervening law that casts any doubt on the
viability of this controlling authority. To the contrary,
the Court's recent decisions in Tuttle and Pembaur support
the ruling. In Tuttle, the Supreme Court reaffirmed its
prior holding in Monell that respondeat superior does not
apply and "that only deprivations visited pursuant to
municipal 'custom' or 'policy' could lead to municipal
liability. This language tracks the language of the statute;
it also provides a fault-based analysis for imposing
municipal liability." Tuttle, 85 L.Ed.2d at 801 (emphasis
added; footnote omitted). Similarly, in Pembaur, the Court .
reaffirmed that "Monell is a case about responsibility." 89
L.Ed.2d at 462. Thus, in the Court's view liability
premised on a municipal policy liability based on fault,
even if, as in Owen, the individual municipal policymakers

3
relied in good faith on the prior decisional law.

In sum, the good faith immunity applies only to 
individual officers, not cities which are responsible for 
their policies.

It is also noteworthy that while the Court discussed the 
good faith defense available to the individual, Tuttle, 85 
L.Ed.2d at 797 & n.1, it adverted to no parallel immunity 
for municipalities. Rather, it discussed only the para­
meters of the "policy or custom" doctrine in its discussion 
of the meaning of "fault-based" liability. Similarly, in 
Pembaur, Justices White and O'Connor explained their view 
that a city is particularly responsible for the decisions of 
its senior policymakers when they choose policies not yet 
held unconstitutional. See n.2, supra.

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The innocent individual who is harmed by an abuse 
of governmental authority is assured that he will 
be compensated for his injury. The offending 
official, so long as he conducts himself in good 
faith, may go about his business secure in the 
knowledge that a qualified immunity will protect 
him from personal liability for damages that are 
more appropriately chargeable to the populace as a 
whole. And the public will be forced to bear only 
the costs of injury inflicted by the "execution of 
a government's policy or custom, whether made by 
its lawmakers or by those whose edicts or acts may 
fairly be said to represent official policy."

Owens, 445 U.S. 658 (quoting Monell v. New York City Dept 
of Social Services, 436 U.S. at 694).

CONCLUSION
Almost twelve years ago, a Memphis police officer 

acting pursuant to an officially promulgated order and 
regulation of the Memphis Police Department shot and killed 
Mr. Garner's son. The Supreme Court's ruling makes clear 
that both the shooting and the municipal policy that 
explicitly authorized it violate the fourth amendment. 
Accordingly, Mr. Garner is entitled to summary judgment 
against the city on the issue of liability. There are no 
genuine issues of fact other than the amount of damages 
remaining for trial. "It is quite clear what the truth is:" 
an unconstitutional policy of the Memphis Police Department 
resulted in Edward Eugene Garner's death.

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For the foregoing reasons, we respectfully request that 
the motion for partial summary judgment on the question of 

liability be granted.

Respectfully submitted.

JULIUS LeVONNE CHAMBERS 
STEVEN L, WINTER 

16th Floor 
99 Hudson Street 
New York, New York 10013

WALTER L. BAILEY, JR.
Suite 901, Tenoke Building 
161 Jefferson Avenue 
Memphis, Tennessee 38103

COUNSEL FOR PLAINTIFF

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CERTIFICATE OF SERVICES
I hereby certify that copies of the foregoing 

Plaintiff's Motion for Partial Summary Judgment on the 
Question of Liability and Memorandum of Law in Support of 
Plaintiff's Motion for Partial Summary Judgment on the 
Question of Liability have been served by placing same in 
the United States mail, postage prepaid, addressed to Henry 
L. Klein, Esquire, 770 Estate Place, Memphis, Tennessee 
38117, Clifford D. Pierce, Jr., City Attorney, 314-125 N. 
Mid America Mall, Memphis, Tennessee 38103, this j^j^day of 

June, 1986.

Steven L. Winer 
Counsel for Plaintiff