Plaintiff's Motion for Partial Summary Judgment on the Question of Liability

    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,

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

PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT 
ON THE QUESTION OF LIABILITY.........

Plaintiff, Cleamtee Garner, respectfully moves the 
court pursuant to F.R.C.P. 56 to grant summary judgment 
against the City of Memphis on the question of liability.
In support of this motion, he shows the following;

1.______ On March 27, 1985, the Supreme Court affirmed the 
judgment of the court of appeals that the shooting in this 
case violated the fourth amendment. Tennessee v. Garner, 
471, ___ U.S. ___, 8 5 L.Ed.2d 1 , 15-16 ( 1985) , aff'g 710



F.2d 240, 246 (6th Cir. 1983). It remanded for further 
proceedings to determine the city's liability under Monel1 
V. Department of Social Services, 436 U.S. 658 (1978). The 
amount of damages is the only other issue that remains in 
addition to the question of liability.

2. Under Monell v. New York Dept, of Social Services, 
436 U.S. 658 (1978), municipalities are "persons" within the 
meaning of § 1983 and subject to suit under that statute. 
Under Monell, a city may be held liable in damages under
§ 1983 for constitutional deprivations that result from a 
"policy or custom" followed by the city. Under that 
standard, Mr. Garner is clearly entitled to relief.

3. "[I]t is when execution of a government's policy 
or custom, whether made by its lawmakers or by those whose 
edits or acts may fairly be said to represent official 
policy, inflicts the injury that the government as an entity 
is responsible under § 1983." Monell, 436 U.S. at 694. A 
city is responsible for its own acts, "that is, acts which 
the municipality has officially sanctioned or ordered."
Pembaur v. Cincinnati, 475 U.S. ___, 89 L.Ed.2d 452, 463
(1986). "[T]o establish the constitutional violation [as]
in Monell no evidence [i]s needed other than a statement of 
the policy by the municipal corporation, and its exercise."
Oklahoma City v. Tuttle, 471 U.S. ___, 85 L.Ed.2d 791, 803

(1985).

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4. Under these standards, plaintiff is entitled to 
summary judgment on the issue of liability. All he need 
show is the municipal policy and its exercise. There can be 
no genuine issue of fact because it cannot be denied that 
Memphis had an explicit, written policy sanctioning the 
shooting in this case. It was this municipal policy of 
Memphis that was "the moving force of the constitutional 
violation." Monell, 436 U.S. at 694.

5. The record material attached to this motion 
establishes beyond doubt that the Memphis deadly force 
policy in effect on the night of Edward Eugene Garner's 
death explicitly authorized the shooting of fleeing burglary 
suspects. General Order No. 5-74, Attached as Exhibit 1, is 
a policy statement signed by then Director of Police, J.W. 
Hubbard (see Exhibit 4) —  "a municipal policymaker."
Pembaur, 89 L.Ed.2d at 464-65; Tuttle, 85 L.Ed.2d at 804. It 
was adopted with the explicit consideration and approval of 
the Mayor, Wyeth Chandler. Indeed, although this policy is 
more restrictive than state law, the inclusion of burglary 
as an enumerated underlying felony justifying the use of 
deadly force to prevent escape was a considered policy 
choice "consciously chosen from among various alternatives
__/' Tuttle, 85 L. Ed.2d at 804, by Mayor Chandler and
Director Hubbard. See Exhibit 2, 3, and 4. As the Mayor 
testified in deposition: "One of the arguments was to

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eliminate burglary and this type thing, some kinds of 
burglary, which I did not do. I did not think it should be 
done.” Exhibit 2, Deposition of Mayor Wyeth Chandler at 22 

(Dec. 19, 1979).
6. The district court previously found that;
Under ... regulations of the Memphis Police 
Department ... lethal force may be used by police 
officers to apprehend persons fleeing from the 
commission of certain felonies.... Burglary of a 
residence is one of the felonies covered ....
Lethal force may be resorted to in order to 
apprehend a person fleeing from the commission of 
a burglary such as that in which deceased Garner 
was involved....

Memorandum Opinion of September 29, 1976, Slip. op. at 9-10.
On the first appeal, the court of appeals affirmed the 
finding that the officer "shot because he believed that the 
boy would elude capture," and that the officer "was taught 
that it was proper to kill a fleeing felon rather than run 
the risk of allowing him to escape." Garner v. Memphis 
Police Department, 600 F.2d 52, 53 (6th Cir. 1979). There 
can be no doubt that the officer was taught and acted 
pursuant to the policies of the City of Memphis.

7. The Supreme Court held that, without probable 
cause to believe that he is dangerous, the shooting of a 
fleeing suspect solely because there is a probable cause to 
believe that he committed a burglary violates the fourth 
amendment. Garner, 85 L.Ed.2d at 16. The record leaves no 
doubt that there can be no genuine issue of material fact;

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(1) that this was the explicit policy of the City of 
Memphis, adopted by its Mayor and Director of Police; (2) 
that this policy was taught to Officer Hymon who fired the 
fatal shot; and (3) that he shot because of the policy. 
Accordingly, plaintiff is entitled to judgment on the 
question of liability. He had made an incontrovertible 
showing "sufficient to impose liability under Monell ... 
[that] includes proof that [the unconstitutional shooting] 
was caused by an existing, unconstitutional municipal 
policy, which policy can be attributed to a municipal 
policymaker." Tuttle, 85 L.Ed.2d at 804.

8. In Sartor v. Arkansas Natural Gas Corp., 321 U.S. 
620 (1944), the Supreme Court held that "Rule 56 'authorizes 
summary judgment only where the moving party is entitled to 
judgment as a matter of law, where it is quite clear what 
the truth is, that no genuine issue remains for trial.'" 6 
Moore's Federal Practice H 56.15 [ 1-.00] (quoting Sartor, 
321 U.S. act 627) (emphasis added). Given the Supreme 
Court's holding in Garner, "it is quite clear what the truth 
is" —  a policy that authorized the use of deadly force 
claimed the life of Edward Eugene Garner. The execution of 
the city's policy, made by municipal decisionmakers, 
inflicted the ultimate injury of death. The city is liable 
under § 1983.

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9. Even though the question of damages may be at 
issue. Rule 56 clearly provides for partial summary judg­
ment. According to Rule 56, a claimant may "move ... for a 
summary judgment in his favor upon all or any part" of a 
claim. F.R.C.P. 56; see 6 Moore's Federal Practice 
H56.20[3.-0] at 56-1208. Under subdivision (c) of F.R.C.P. 
56, there is little doubt that summary judgment should be 
granted in this case: "A summary judgment, interlocutory in
character, may be rendered on the issue of liability alone 
although there is a genuine issue as to the amount of 
damages." Id. (emphasis added).

For the foregoing reasons, and as more fully set out in 
the attached memorandum and exhibits, the motion for partial 
summary judgment on the question of liability should 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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