Garner v. Memphis Police Department Brief for Plaintiff-Appellant on Remand from the Supreme Court of the United States

    No. 81-5605

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, et al.,
Plaintiff-Appellant, 
vs.

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

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

Western Division

BRIEF FOR PLAINTIFF-APPELLANT 
ON REMAND FROM THE SUPREME COURT 

OF THE UNITED STATES

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-Appellant



TABLE OF CONTENTS

Table of Cases....................................
Question Presented ............................. .
Statement of the Case .......................... .
Summary of Argument ............................
Argument ........................................

The City of Memphis Is Liable under Monell 
Because the Shooting Death of Edward Eugene 
Garner by a Memphis Police Officer Was 
Merely the Execution of an Explicit 
Policy of the Police Department ...........

A. A City Is Liable under § 1983 
when Its Official Policy Directs
an Unconstitutional Act ..........

B. Mr. Garner Is Entitled to Judgment 
Against the City Because the Facts 
Already Found Establish that the 
Unconstitutional Shooting Death
of his Son Was Merely the Execution of an Official, Unconstitutional 
Policy of the City of Memphis ....

Conclusion ......................................
Certificate of Service .........................
Appendix ........................................

Page
ii
1
1

7
8

8

9

12

15
17
18

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TABLE OF CASES
Page

Bennett v. City of Slidell, 728 F.2d 762
(5th Cir. 1984)   11

Brandon v. Holt, 469 U.S. ____, 83 L.Ed.2d 878
( 1985) ......................................... 15

City of Atlanta v. Gilmere, 737 F .2d 894
(11th Cir. 1984) ..............................* 11

Garner v. Memphis Police Dept., 600 F.2d 52
(6th Cir. 1979) ................................ 2' 3' 14' 15

Garner v. Memphis Police Dept., 710 F.2d 240
(6th Cir. 1983) ................................ 2' 4' 6

Languirand v. Hayden, 717 F .2d 220
(5th Cir. 1983) ................................  11

Monell v. Department of Social Services,
436 U.S. 658 (1978)   Passim

Monroe v. Pape, 365 U.S. 167 ( 1961) ..............  2
Oklahoma City v. Tuttle, 53 U.S.L.W. 4639

(June 3, 1985) ................................. 8' 9' 1 1 '12, 15
Owen v. City of Independence, 445 U.S. 662

(1980) ......................................... 4
Rymer v. Davis, 754 F .2d 198 (6th Cir. 1985) .....  11
Tennessee v. Garner, 471 U.S. ____,

85 L .Ed. 2d 1 ( 1985) ...........................  2' 6, 14
Thayer v. Boston, 36 Mass. 511 ( 1836) ............  12
Turpin v. Mailet, 619 F.2d 196 (2d Cir. 1980) ....  12

Statutes
Tenn. Code Ann. 39-901 ...........................  33
Tenn. Code Ann. 40-808 ...........................  3 • 33

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No. 81-5605

IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, et al.,
Plaintiff-Appellant, 
vs.

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

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

Western Division

BRIEF FOR PLAINTIFF-APPELLANT 
ON REMAND FROM THE SUPREME COURT 

OF THE UNITED STATES

QUESTION PRESENTED
1. Is the City of Memphis liable under Monel1 v. 

Department of Social Services, 436 U.S. 658 (1978), for the 
unconstitutional shooting death of appellant's son by a 
Memphis police officer who was merely executing an explicit, 
official policy of the Memphis Police Department?

STATEMENT OF THE CASE
This case is before the court on remand from the 

Supreme Court, which affirmed the judgment of this court 
that the shooting of a fleeing burglary suspect without 
piobable cause to believe that he is dangerous or has com-



mitted a violent crime violates the fourth amendment.
Tennessee v. Garner, 471 U.S. ____, 85 L.Ed.2d 1 (1985),
aff'q 710 F.2d 240 (6th Cir. 1983). The basic facts are 
summarized in this court's first opinion:

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 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.

Garner v. Memphis Police Dept., 600 F.2d 52, 53 (6th Cir. 
1979).

* /The complaint was filed in April 1975. A. 2 .—

In a pretrial ruling, the district court dismissed the case 
against the Memphis Police Department and the City of Memphis 
under § 1983, relying on Monroe v. Pape, 365 U.S. 167 (1961).

*/ Citations are to the Joint Appendix filed on appeal in 
No. 81-5605. Because of multiple use and repaginations, the 
page numbers of the Joint Appendix are underlined and can be 
found at the bottom center of the Joint Appendix pages.

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After a bench trial the court ruled for the defendants on 
all issues. A. 35.

On appeal, this court affirmed the dismissal of the 
case against the individual defendants based on their qualified, 
good faith immunity in relying on Tenn. Code Ann. § 40-808, 
which had not been held unconstitutional. It reversed and 
remanded the case against the city for reconsideration in 
light of Monell v. Dept, of Social Services, 436 U.S. 658 
(1978). It listed four specific questions to be included in 
the district court's consideration of the case.

1. Does a municipality have a similar 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 constitutionally 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 
Monell?

600 F.2d at 54-55 (footnotes omitted).
On remand, the district court answered "yes" to the 

first three questions: that the city is protected by a good 
faith immunity defense; that the use of deadly force under 
these circumstances is constitutionally permissible; and

3-



that the use of hollow-point bullets is constitutionally 
permissible. Order of July 8, 1981, Slip op. at 7-8; A. 61- 
62. On that basis, it answered "no” to the last: "There was 
demonstrated no constitutionally impermissible 'custom or 
practice' in the record." Slip op. at 8; A. 62.

On appeal, this court reversed. With regard to the 
first question, this court held that the decision in Owen v. 
City of Independence, 445 U.S. 662 (1980), "precludes a 
municipality's claim of good faith immunity under § 1983 
altogether." Garner v. Memphis Police Dept., 710 F.2d 240,
248 (6th Cir. 1983). With regard to the second, it held 
that the application of the Tennessee law to authorize the 
shooting in this case violated the fourth amendment and the 
due process clause. Id. at 246. Accordingly, it did not 
reach the third question or any of Mr. Garner's alternative 
constitutional t h e o r i e s . T h i s  court remanded for further 
proceedings in the district court without any discussion of 
the question of municipal liability under Monell in light 
of the constitutional holding. Id.

The Supreme Court granted certiorari and noted probable 
jurisdiction of the state's appeal. In the Supreme Court,
Mr. Garner argued the fourth amendment and due process clause 
theories in support of this court's ruling. He also argued

1/ In the district court and on appeal in this court, Mr. 
Garner also argued that: 1) the killing of unarmed, nondangerous 
fleeing suspects amounts to punishment in violation of the 
due process clause; 2) the Memphis policies and customs 
encourage the excessive and unconstitutional use of deadly 
force; 3) the use of hcllow-point bullets violates the Consti­
tution; and 4) the Memphis policy of shooting nondangerous, 
fleeing property crime suspects is racially discriminatory. 
Arguments 2) and 4) are the alternative grounds, discussed 
below, that Mr. Garner also raised in the Supreme Court.

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two alternative grounds in support of this court's judgment, 
only one of which is relevant at this time.—/ He argued 
that, even if the common law fleeing felon rule were con­
stitutional, the judgment could be affirmed on the basis of 
the Memphis policies and customs that "encourage and in­
sulate the excessive and unnecessary use of deadly force in 
situations, such as the instant case, where the officer has 
failed to exhaust reasonable alternatives." Brief for 
Appellee-Respondent, Nos. 83-1035 & 83-1070, at 33.

In support of this ground, Mr. Garner cited both the 
record of the original 1976 trial and material from the 
extensive 1980 offer of proof assembled on remand to the 
district court. This evidence established both a pattern 
and practice of excessive use of deadly force and several 
policies and customs that indicate "a police department that 
arms and trains its officers to shoot to kill, encourages 
them to rely on their revolvers rather than to exhaust other 
alternatives, and assures them that they may do so without 
guidelines and with impunity." Id. at 13. It is not neces­
sary to canvass this material because this question is not 
relevant to the question now before this court. Suffice it 
to say that Mr. Garner marshalled the relevant evidence and 
asked the Court to rule on the excessiveness issue "despite 
the record and the lack of findings below." I_d. at 14.

2/ The second alternative ground was the race discrimination 
claim that Mr. Garner raised on the previous appeal in this 
court. See n. 1, supra. That claim was premised on evidence 
contained only in the offer of proof.

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The Supreme Court reached neither of the alternative 
grounds —  and, thus, did not need to consider the "uncertain 
record" —  because it affirmed this court's ruling under the 
fourth amendment. The Court held that the Tennessee statute 
is unconstitutional as applied to this case, 85 L.Ed.2d at 
10, and that the use of deadly force by Officer Hymon against 
Edward Eugene Garner violated the fourth amendment. Id. at 
15-16. In reaching the latter conclusion, the Court echoed 
this court's determination that Hymon shot without probable 
cause to believe that Garner was dangerous or had committed 
a violent crime. Compare 85 L.Ed.2d at 15—16 with 710 F.2d 
at 246. It further rejected the notion that probable cause 
to believe that Garner had committed a burglary was sufficient 
to authorize the use of deadly force to prevent his escape.
Id. In light of these holdings, the Court remanded for further 
proceedings. It noted that there was a question of the 
city's liability under Monel1, but declined to consider the 
question because of "the absence of any discussion of this 
issue by the courts below" and because of "the uncertain 
state of the record." Id.

When the Supreme Court issued its judgment, Mr. Garner 
asked this court for leave to file a brief on remand, which 
was granted. The purpose of this brief is to set out why 
this court should rule for Mr. Garner on the remaining Monell 
issue and then remand to the district court to determine the 
amount of damages and enter a final judgment.

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SUMMARY OF ARGUMENT
Monell issues come in different sizes and shapes, and 

different levels of difficulty. Some Monell issues require 
the court to infer a municipal policy or custom from a course 
of conduct or series of incidents. Other, similar Monell 
claims ask the court to assess the existence of a municipal 
policy or custom on the basis of actions not taken, such as 
failure to discipline or to train adequately municipal police 
officers. Then, there are Monell claims that concern only 
the question of policy simpliciter: when a city has an
official policy that explicitly directs the unconstitutional 
act. In its current posture, this case presents only the 
last, easiest Mone11 question of policy simpliciter.

In the Supreme Court and on the prior appeal, Mr. 
Garner raised a Mone11 claim of the inferential sort as a 
lesser constitutional ground that would support a judgment 
for plaintiff even if the common law fleeing felon rule had 
been upheld. That claim was based on the hybrid record of 
the 1976 trial and the 1980 offer of proof. In that claim, 
Mr. Garner asked the courts to infer a policy of excessive 
use of deadly force, beyond that authorized by the common 
law rule.

Now that the Supreme Court has affirmed this court 
and held that the common law rule is unconstitutional as 
applied to this case, however, the nature of the Monell 
issue is simplified; it is a case of policy simpliciter.

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On the basis of the district court findings rendered after 
the 1976 trial as affirmed by this court in 1979, it is 
indisputable that the Memphis deadly force policy, General 
Order No. 5-74, explicitly authorized this unconstitutional 
shooting. Accordingly, this case is controlled by Monell 
itself, where there was an explicit municipal policy direct­
ing the very unconstitutional act. Here, as in Monell, the 
municipal policy was "the moving force of the constitutional 
violation." Monell, 436 U.S. at 694. Mr. Garner is thus 
entitled to judgment against the City of Memphis.

ARGUMENT
THE CITY OF MEMPHIS IS LIABLE UNDER MONELL 
BECAUSE THE SHOOTING DEATH OF EDWARD EUGENE 
GARNER BY A MEMPHIS POLICE OFFICER WAS MERELY 
THE EXECUTION OF AN EXPLICIT POLICY OF THE 
POLICE D E P A R T M E N T _____________________

Decision in this case does not depend upon "the full 
range of questions, and subtle factual distinctions, that 
arise in administering the 'policy' or 'custom' standard..." 
required by Monell. Oklahoma City v. Tuttle, 53 U.S.L.W. 
4639, 4642 (June 3, 1985). Rather, in its current posture, 
this case presents the relatively simple question that was 
decided in Monell itself: whether a city is liable for an 
unconstitutional act by one of its employees during the 
course of his employment when an official, explicit policy 
made by a municipal policymaker directs precisely that 
conduct. In the sections that follow, we first discuss

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the standards that control decision of that question. We 
then turn to the findings made by the district court, as 
affirmed by this court on the first appeal, that conclusively 
demonstrate the city's liability in this case.

A. A City Is Liable under § 1983 when Its Official
Policy Directs an Unconstitutional Act
While the Court has not yet defined "the full 

contours of municipal liability under § 1983...," Oklahoma 
City v. Tuttle, 53 U.S.L.W. at 4639 (quoting Monel1, 436 
U.S. at 695), it has recently taken some "small but neces­
sary step[s] toward defining those contours." Id. In Tuttle: 
"Respondent did not claim ... that Oklahoma City had a 'custom' 
or 'policy' of authorizing its police force to use excessive 
force in the apprehension of suspected criminals...." Id. 
at 4642. Rather, she premised her claim of municipal liability 
for the shooting death of her husband on the allegedly inadequate 
training and supervisory policies of the Oklahoma City police 
department. Id. The Tuttle Court reversed the jury verdict 
against the city because of an incorrect instruction that 
allowed the jury to infer a municipal policy from "a single, 
unusually excessive use of force [which] may be sufficiently 
out of the ordinary to warrant an inference that it was 
attributable to inadequate training or supervision...." Id. 
at 4640, 4642. This holding was supported by a seven-member 
majority.

In a plurality opinion, Justice Rehnquist then 
turned to the standards governing the ascertainment of a "policy"

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under Monell. He distinguished between the case where the 
plaintiff proves an "incident of unconstitutional activity 
... that ... was caused by an existing, unconstitutional 
municipal policy, which policy can be attributed to a muni­
cipal policymaker ..." and that "where the policy relied 
upon is not itself unconstitutional...." Id. at 4643. In 
the latter case: "There must be an affirmative link between 
the ... inadequacies alleged, and the particular constitutional 
violation at issue." Id. at 4643 n. 8. In the former 
case, he affirmed the holding in Monell: When a "policy in 
and of itself violated the [Constitution ..., it requires 
only one application ... to satisfy fully Monell1s require­
ment that a municipal corporation be held liable only for 
constitutional violations resulting from the municipality's
official policy." Id. at 4643.

The plurality opinion also discussed some of the 
parameters governing claims of municipal policy on the basis 
of omissions, such as inadequate training. It suggested 
that "'policy' generally implies a course of action con­
sciously chosen from among various alternatives...." Id.
Thus, in addition to the "affirmative link" of causation, a 
plaintiff must show "that the inadequacies resulted from
conscious choice...." Id.

The plurality opinion did not attempt to sketch 
out all varieties of the Mone11 question, although it cited 
with apparent approval three court of appeals decisions that 
further develop the Monell standard. Id. at 4642. (citing

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Bennett v. City of Slidell, 728 F.2d 762 (5th Cir. 1984); 
City of Atlanta v. Gilmere, 737 F.2d 894 (11th Cir. 1984),
rehr'q en banc pending; Lanquirand v. Hayden, 717 F .2d 220 
(5th Cir. 1983)). In Gilmere, the Eleventh Circuit discussed 
the imposition of "liability on municipalities for deprivations 
of constitutional rights visited pursuant to municipal policy, 
whether that policy is officially promulgated or authorized 
by custom." 737 F.2d at 901. In the latter case, there may 
be municipal liability "even though such custom has not 
received formal approval through the body's official decision 
making channels." Monell, 436 U.S. at 691; Gilmere, 737 
F.2d at 901. "Custom" comprises "those practices of city 
officials that are 'so permanent and well settled' as to 
'have the force of law.'" G i lmere, 7 37 F. 2d at 901 ((quoting
Monell 436 U.S. at 691).

Thus, the case law makes clear that there are 
Monell claims of different kinds and levels of complexity, 
subject to different standards of proof. There are cases 
where an informal "policy" or "custom" must be inferred from 
a pattern and practice. There are cases premised on an 
official municipal policy that is not itself unconstitutional, 
where a close causal connection must be shown. There are 
claims premised on omissions, where the Tuttle plurality 
would require that a deliberate policy choice be proved.
See, e,q., Rymer v. Davis, 754 F.2d 198 (6th Cir. 1985) 
(municipal liability premised on decision not to require

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pre-employment training of police force). Municipal liability 
may also be premised on an unconstitutional act later adopted 
or ratified by the city. Cf. Turpin v. Mailet, 619 F.2d 
196, 201 (2d Cir. 1980) (dicta).-7

Despite these varied permutations spawned by the 
Monel1 standard, it is important not to lose sight of the 
Monel1 holding: It imposed municipal liability under § 1983 
when "the action that is alleged to be unconstitutional 
implements or executes a policy statement, ordinance, regu­
lation, or decision officially adopted or promulgated by 
that body's officers...." Monell, 436 U.S. at 690. In that 
case, a city is liable because of its policy simpliciter.
As the Court reaffirmned in Tuttle: "To establish the con­
stitutional violation in Monell no evidence was needed other 
than a statement of the policy by the municipal corporation, 
and its exercise...." 53 U.S.L.W. at 4643.

B. Mr. Garner Is Entitled to Judgment 
Against the City Because the Facts 
Already Found Establish that the 
Unconstitutional Shooting Death of 
his Son Was Merely the Execution of 
an Official, Unconstitutional Policy 
of the City of Memphis
The Monell claim previously raised as a lesser 

alternative ground, that the Memphis policy was one of excessive 
use of force beyond that authorized by the common law, was

3/ in Tuttle, the plurality opinion cited "the famous case 
of Thayer v. Boston, 36 Mass. 511, 516-517 (1836)," as "in 
harmony with the limitations on municipal liability expressed 
in Monell." 53 U.S.L.W. 4642 n. 5. Thayer approved municipal 
liability for officials' acts later "adopted and ratified by 
the corporation." Id.

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an inferential claim of policy and custom. It was premised 
on a pattern and practice, on omissions in discipline and 
training, and on various deliberate policy choices by the 
Memphis Police Department. There were no findings by this 
court or the district court on these points; the factual 
material was, in the main, contained in the "uncertain record" 
of the 1980 offer of proof. But the Monell claim now confront­
ing this court in light of the Supreme Court's affirmance is 
one of policy simpliciter. On that claim, the record is 
clear and the requisite findings have already been made.

After trial on the merits in 1976, the district 
court found that: "Memphis Police instructors ... 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." Memorandum Opinion 
of September 29, 1976, Slip op. at 6-7; A. 27—28. "Under 
TCA 40-808 and under regulations of the Memphis Police Depart­
ment issued thereunder 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 under this statute and under Tennessee law, 
TCA 39-901. 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...." Slip 
op. at 9-10; A. 30-31 (citations omitted). Indeed, the 
official policy promulgated by the Memphis Police Department

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and signed by the director of police, General Order No. 5—
74, instructed that to apprehend a suspect "DEADLY FORCE is 
authorized in the following crimes.... (h) Burglary in the
1st, 2nd, or 3rd degree___" General Order No. 5-74 at 2;
A. 1009. (For the court's convenience, a copy of General 
Order No. 5—74, which is already in the record, is attached 
as an appendix to this brief.)

On the first appeal, this court affirmed the 
relevant findings: that "the officer fired at the upper part 
of the body, as he was trained to do by his superiors at the 
Memphis Police Department ...," that the officer "shot because 
he believed 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." 600 F .2d at 
53.

In affirming this court, the Supreme Court held 
both that this particular shooting was unconstitutional, 85 
L.Ed.2d at 15-16, and that a shooting premised solely on 
probable cause to believe that the fleeing suspect had com­
mitted a nighttime burglary is unconstitutional. Id.

If one assembles the rulings at all three levels, 
the result of this case is entirely clear. The Memphis 
policy authorized the shooting and killing of fleeing burglary 
suspects without probable cause to believe that they are 
dangerous. That policy is unconstitutional. Tennessee v. 
Garner, 85 L.Ed.2d at 15-16. In shooting and killing Edward 
Eugene Garner, Officer Hymon was merely executing that municipal

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policy; he shot and killed Garner, a fleeing suspected felon, 
as he "was taught." 600 F.2d at 53. Memphis is liable for 
the act of its police officer, which "implements or executes 
a ... regulation ... officially adopted or promulgated by 
that body's officers...." Monell, 436 U.S. at 690 (emphasis 
a d d e d ) . M r .  Garner is entitled to judgment against the 
City of Memphis because as "in Monell no evidence is needed 
other than a statement of the policy by the municipal cor­
poration, and its exercise ...." Tuttle, 53 U.S.L.W. at 
4643.

CONCLUSION
Ten years and nine months 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 which 
explicitly authorized it violate the fourth amendment.

4/ General Order No. 5-74 was an order issued by the Director 
of Police, Director Hubbard, and later "incorporated into 
the department's Manual, of Policies, Procedures and Rules 
and Regulations." Id. at 3; A. 1010. As such it was a 
"regulation ... officially adopted." Monell, 436 U.S. at 
690. The policy decisions of the Memphis Director of Police 
are, in Tuttle's terms, "attribut[able] to a municipal policy­
maker." 53 U.S.L.W. at 4643. See Brandon v. Holt, 469 U.S.

, 83 L.Ed.2d 878 (1985) (judgment against Director of 
Memphis Police in his "official capacity" for supervisory 
policies he adopted confers liability on City of Memphis).

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policy; he shot and killed Garner, a fleeing suspected felon, 
as he "was taught." 600 F.2d at 53. Memphis is liable for 
the act of its police officer, which "implements or executes 
a ... regulation ... officially adopted or promulgated by 
that body's officers...." Monell, 436 U.S. at 690 (emphasis 
a d d e d ) . M r .  Garner is entitled to judgment against the 
City of Memphis because as "in Monell no evidence is needed 
other than a statement of the policy by the municipal cor­
poration, and its exercise ...." Tuttle, 53 U.S.L.W. at 
4643.

CONCLUSION
Fourteen years and nine months 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 which 
explicitly authorized it violate the fourth amendment.

4/ General Order No. 5-74 was an order issued by the Director 
of Police, Director Hubbard, and later "incorporated into 
the department's Manual, of Policies, Procedures and Rules 
and Regulations." Id. at 3; A. 1010. As such it was a 
"regulation ... officially adopted." Monell, 436 U.S. at 
690. The policy decisions of the Memphis Director of Police 
are*, in Tuttle's terms, "attribut [ able] to a municipal policy­
maker." 53 U.S.L.W. at 4643. See Brandon v. Holt, 469 U.S.

, 83 L .Ed.2d 878 (1985) (judgment against Director of 
Memphis Police in his "official capacity" for supervisory 
policies he adopted confers liability on City of Memphis).

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Accordingly, Mr. Garner is entitled to judgment against 
the city. The judgment of the district court for the City 
of Memphis should be reversed and the case remanded for the 
assessment of damages, the award of attorneys' fees under 
§ 1988, and the entry of final judgment.

Respectfully submitted,

J. LeVONNE CHAMBERS
STEVEN L. WINTER 

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

WALTER L. BAILEY, JR.Suite 901, Tenoke Building 
161 Jefferson Avenue 
Memphis, Tennessee 38103 
(901) 521-1560

Counsel for Plaintiff-Appellant

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CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Brief 
for Plaintiff-Appellant on Remand 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 )^_th day of 
June, 1985.

Counsel for Plaintiff-Appellant



NUMBER: 5_74 □atsi 5 February 1974

SUBJECT. USE OF FIREARMS AND DEADLY FORCE

1. PURPOSE.
To define circumstances under which DEADLY FORCE and 

FORCE may be used to prevent the commission of an 
effect an arrest.

NON-DEA-OLY 
offense an^ to

2. BACKGROUND.

a. Definitions.
the discharge 
calculated toAs used 1n this order, DEADLY FORCE means 

a firearm; or the use of force by other means 
Inflict serious bodily Injury or death.

NON-DEADLY FORCE means the use of force by methods, 
1ng a night stick or similar weapon, not calculated nor 
to Inflict serious bodily Injury or death.

of

i nclud- 
i ntended

b. AppI 1 cabU 1 ty.
The procedures defined 1n this order apply to the use of 

firearms under the following circumstances-

(1) Situations Involving the use of firearms by depart­
mental personnel 1n the line of duty Involving „he Preven­
tion of-an offense or apprehension of an offender whethe. 
or not death or a wounding occurs as a result.

(2) In any case Involving the accidental or negligent 
discharge of firearms Involving departmental personnel in 
the line of duty not covered under sub-paragraph (i) above.

3. ACTION.

a. Non-deadlv Force.

An officer may use NON-DEADLY FORCE when 1t is necessary to:

n n w



2

(1) Effect an arrest;

t o \  Prevent the escape from custody of a person who is 
£ U . o « b ”  i«p!ct“ /having committed an offense; or to

(3) Defend one's self or another 1n cases not Involving - 
serious bodily Injury or death.

b. Deadly Force.
ncaniv PDRrr mav be used 1n the following circumstances only 

afterEal1 otSerEreason!b" meins to apprehend or otherwise prevent 
the offense have been exhausted:

(1) Self-Defense.

An officer may use DEADLY FORCE when ft Is in the 
. r ... gf himself or another from serious bodily injury o 
d!lth !nd thl“ hriat of serious bodily Injury or death is 
real and immediate.
(2) Felonies Involving the Use or Threatened Use of Physical 

Force.
An officer may use DEADLY FORCE when the offense involves 

a felonyandthe suspect uses or attempts to use or threatens 
the use of physical force against any person.

(3) Other Felonies Where Deadly Force is Authorized

After all reasonable means of preventing or fPPrfhending 
a suspect have been exhausted, DEADLY FORCE 1s authorized 
the following crimes:

Kidnapping „ J J
Murder in the 1st or 2nd degree 
Manslaughter
Arson (Including the use of firebombs)

Assault and battery with intent to carnally know 
a child under 12 years of age
Assault and battery with intent to commit rape 
Burglary in the 1st, 2nd, or 3rd degree 
Assault to commit murder 1n the 1st or 2nd d.grse 
Assault to commit voluntary manslaughter 
Armed and simple robbery

c. Use* of Deadly Force Prohibited.

The use of DEADLY FORCE 1s prohibited when:

(1) Arresting a person for any misdemeanor offense; or

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(2) Effecting an arrest of any person for escape from 
the commission of any misdemeanor offense.

d. Use of Firearms Prohibited.

(1) As warning shots;

(2) From any moving vehicle or to stop any fleeing vehicle, 
except 1n cases of self-defense or cases Involving:

(a) Murder 1n the 1st or 2nd degree
(b) Rape
(c) Assault and battery with Intent to carnally know 

a child under 12 years of age
(d) Armed or simple robbery

(3) In any case where an officer does not have a clear field 
of fire and cannot be reasonably certain that only the sus­
pect will be hit and that the potential for harm to innocent 
persons or their property is minimal.

e. Notification Procedures.

(1) Once the situation 1s under control, any member who dis­
charges a firearm 1n the line of duty will Immediately report the 
fact to the Dispatcher who will have the cognizant watch or 
squad commander notified. The latter will Inform the precinct
or bureau commander of the event,without delay. As soon as 
practicable, the officer who fired a weapon will submit a written 
narrative of the circumstances, via the chain of command, to the 
Chief of Police, with copies to the Senior Member of the Firearms 
Review Board and to the Commanding Officer of the Firing Range.
In addition, Form F2100.149 shall be filled out and forwarded to 
the Firing Range.

(2) In any case resulting in death or wounding, the cognizant 
watch or squad commander,or h1s designated representative, will 
proceed to the scene and will relieve the offlcer(s) concerned 
pending completion of the Inquiry that will be conducted by the 
Firearms Review Board. In addition, the Dispatcher will notify 
the Homicide Squad and the Internal Affairs Bureau as rapidly
as possible. Preservation of the scene will be the responsibility 
of the senior commander present.

4. SELF-CANCELLATION.

This order shall remain in effect until its provisions have been 
incorporated into the department's Manual of Policies, Procedures *nd 
Rules and Regulations.

Distribution: A