Reply Brief of the Appellant

    CASE NO. 92-6196

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, 
Father and Next of Kin of 

EDWARD EUGENE GARNER, 
a deceased minor

Plaintiff-Appellant
V.

MEMPHIS POLICE DEPARTMENT; 
CITY OF MEMPHIS, TENNESSEE

Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

REPLY BRIEF OF THE APPELLANT

Counsel for Appellant:
Walter Lee Bailey, Jr.
200 Jefferson Ave., Ste. 800 
Memphis, TN 38103 
(901) 575-8702

Counsel for Appellees:
Henry L. Klein 
Apperson, Crump 
45 Second Street 
Ste. 2110, One Commerce Sq. 
Memphis, TN 38103



P H O N E  9 0 1 - 5 7 5 - 8 7 0 2  
F A X  9 0 1 - 5 7 5 - 8 7 1 7

A n n e  B r o w n l e e  G u l l i c k
A T T O R N E Y  A T  U A W

O N E  M E M P H I S  P L A C E  
2 0 0  J E F F E R S O N  A V E . ,  S U I T E  8 0 0  

M E M P H I S ,  T N  3 8 1 0 3 - 2 3 4 0

A L S O  L I C E N S E D  
IN  M I S S I S S I P P I

January 15, 1993

Mr. Clyde Murphy 
Attorney at Law 
NAACP Legal Defense Fund 
99 Hudson St., 16th Floor 
New York, NY 10013

RE: Garner v. Memphis Police Dept., et al

Dear Mr. Murphy:
Enclosed you will find your copy of the appellant's reply brief 
filed in the above styled cause. I hope that I incorporated your 
helpful criticisms in the reply, and I appreciate all your 
assistance. I look forward to more opportunities to work with 
you in the future.
Thank you for your time and cooperation. If I can provide any 
further information or service, please feel free to call.
Sincerely,

Anne Brownlee Gullick 
Enclosure



CASE NO. 92-6196

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER,
Father and Next of Kin of 

EDWARD EUGENE GARNER, 
a deceased minor

Plaintiff-Appellant
V.

MEMPHIS POLICE DEPARTMENT; 
CITY OF MEMPHIS, TENNESSEE

Defendants-Appellees

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

REPLY BRIEF OF THE APPELLANT

Counsel for Appellant:
Walter Lee Bailey, Jr.
200 Jefferson Ave., Ste. 800 
Memphis, TN 38103 
(901) 575-8702

Counsel for Appellees:
Henry L. Klein 
Apperson, Crump 
45 Second Street 
Ste. 2110, One Commerce Sq. 
Memphis, TN 38103



8

Table of Authorities........................................... ii
Rebuttal Argument .............................................. i
Conclusion..................................................... 18
Certificate of Service......................................... 19

TABLE OF CONTENTS

I



CASE PAGE
Barber v. City of Salem, Ohio,

953 F.2d 232 (6th Cir. 1992)............................  2, 3

Belcher v. Oliver,
898 F.2d 32 (5th Cir. 1990)................................ 14

Brandon v. Holt,
469 U.S. 464 (1985).......................................... 3

Carter v. City of Chattanooga, Tenn.,
850 F.2d 119 (6th Cir. 1988)........................ 1, 2, 4

7, 8
Chevron Oil Co. v. Huson,

404 U.S. 97 (1971).....................................  2,8

City of Canton, Ohio v. Harris,
489 U.S. 378 (1989).................................... 15, 16

City of Los Angeles v. Heller,
475 U.S. 796 (1986)......................................... 11

City of Oklahoma City v. Tuttle,
471 U.S. 808 (1985)......................................... 15

Coal Resources, Inc. v. Gulf & Western Industries,
865 F.2d 761 (6th Cir. 1989)................................. 8

Doe V. Sullivan County, Tenn.,
956 F.2d 545 (6th Cir. 1992).................... 3, 11, 12, 14

Garner v. Memphis Police Department,
City of Memphis, Tenn.,
600 F.2d 52 (6th Cir. 1979)...................................13

Garner v. Memphis Police Department,
710 F.2d 240 (6th Cir. 1983)....................  1, 8, 12, 14

TABLE OF AUTHORITIES

ii



James B. Beam Distilling Co. v. Georgia,
___ U.S. ___, 111 S.Ct. 2439 (1991)..................  1, 5, 8

Monell V. Department of Social Services,
436 U.S. 658 (1978)........................ 11, 15, 16, 17, 18

Owen V. City of Independence,
445 U.S. 622 (1980)...................................... 2,3

Pleasant v. Zamieski,
895 F.2d 272 (6th Cir. 1990)..............................  17

Pruitt V. City of Montgomery, Alabama,
771 F.2d 1475 (11th Cir. 1985)...................... 9, 10, 11

Rodriguez v. City of Passaic,
730 F.Supp. 1314 (D.N.J. 1990)............................  14

Tennessee v. Garner,
417 U.S. 1 (1985)............................ 1, 3, 4, 5, 6, 7

8, 12, 13, 14, 18

111



REBUTTAL ARGUMENT

L:--The holding in Carter v. City of Chattanooga. Tenn.. 850 F.2d
1119 (6th Cir. 1988) does not justify the granting of the summary 
iudcfment by the district court in the instant case.

The defendants in the instant case insist that Carter v.
City of Chattanooga, Tenn., 850 F.2d 119 (6th Cir. 1988) controls 
this case. However, the defendants' arguments cannot withstand 
scrutiny when viewed in light of the United States Supreme 
Court's decisions in Tennessee v. Garner, 471 U.S. 1 (1985) and
James B. Beam Distilling Co. v. Georgia, ____ U.S. , ill
S.Ct. 2439 (1991).
__The City of Memphis did not have the right to formulate a

course of conduct or policy that was unconstitutional.
The defendants initially assert that the Carter case held 

that municipalities have a defense to a claim pursuant to 42 
U.S.C. Section 1983 based upon their reliance on a policy or 
course of conduct previously determined to be within 
constitutional limits. The district court came to this same 
conclusion by holding that Carter obviously overruled that part 
of Garner v. Memphis Police Department, 710 F.2d 240 (6th Cir. 
1983)[Garner II] which had held that municipalities do not enjoy 
a good faith immunity from liability under Section 1983. Garner 
II, 710 F.2d at 248.

It is evident that the district court was in error. As 
noted in the original brief, Carter is not a case of immunity.
The court did not address any type of good faith immunity, and it 
never even mentions the questioned section of Garner II. The

1



Carter court, in fact, recognized that the City of Chattanooga 
could claim, "no immunity since Owen." Carter, 850 F.2d at 1135. 
Rather, the Carter court utilized Chevron Oil Co. v. Huson, 404 
U.S. 97 (1971) to find that there simply was no violation of 
constitutional magnitude. To reach that point the court was 
forced to find that Tennessee v. Garner, supra, did not apply 
retroactively to fact patterns antedating that decision. Carter, 
850 F.2d at 1134.

Adding credence to the submission that Carter did not
overrule Garner II is Barber v. City of Salem, Ohio, 953 F.2d 232
(6th Cir. 1992) . There, the court directly addressed the issue
of a municipality's immunity and held:

While officials may not be liable under 
section 1983 because their actions (or 
failure to act) were not constitutional 
violations according to clearly established 
law at the time the actions took place, a 
municipality may nevertheless be liable if 
the actions complained of rise to the level 
of constitutional violations in light of 
present law. [Emphasis added].

Barber, 953 F.2d at 237 citing Owen v. City of Independence, 445 
U.S. 622, 657-658 (1980) but not citing Carter. Consequently, 
municipalities in the Sixth Circuit cannot escape liability by 
pointing to preexisting law. That is the Garner II holding, and 
it obviously survived Carter.^

‘Note that Barber was decided long after Carter and makes no 
mention of the Carter decision. In fact. Carter has not been cited 
in the Sixth Circuit for any other proposition but that Tennessee 
V. Garner would not apply retroactively.



Even though the Carter decision distinguished Owen on 
retroactivity grounds, it could not and did not argue Owen's 
effect on municipal liability and immunity to Section 1983 
claims. In Owen, the Supreme court held that even though 
individuals may be entitled to qualified immunity for the 
discharge of a police chief, the city remained liable. The Court 
so held even though the case holding such a discharge to be 
constitutionally defective was decided two months after the 
discharge in question. See Barber, 953 F.2d at 232. Again, the 
Supreme Court pretermits the defendants' arguments in the instant 
case.

There obviously is a difference between individual liability 
and municipal liability under Section 1983. Brandon v. Holt, 469 
U.S. 464, 471 (1985). Even where the individual may not be 
liable, the City may remain in the suit. Doe v. Sullivan County, 
Tenn., 956 F.2d 545 (6th Cir. 1992). However, the defendants 
fail to recognize this difference when they argue that the 
"author of the General order relied upon a statute that had 
passed the test of time not only by the Courts of the State, but 
also Federal Courts deciding cases pursuant to Section 1983." 
Defendants' Brief, p. 4. It is not the individual author of the 
policy that remains in this suit, but rather the City through 
whose policies Edward Eugene Garner's civil rights were violated. 
Therefore, the reliance argument set forth here is of no import.



B» The holdings in Tennessee v. Garner and Garner II should be 
applied retroactively.

The defendants also argue that the holding of Tennessee v. 
Garner, supra, should not be applied retroactively based upon the 
Carter decision. Defendants' Brief, p. 5. It is axiomatic that 
Carter v. City of Chattanooga has no overruling effect upon the 
explicit directions of the Supreme Court in Tennessee v. Garner. 
It is crystal clear from the reading and holding of Tennessee v. 
Garner that the Supreme Court intended for Cleamtee Garner as 
representative of his deceased son to have the new rule of law 
applied to his case until final disposition. There would have 
been no need to remand otherwise. The Carter court and any other 
lower court is powerless to assume any different.

What is missing from the Carter opinion is the Court's 
determination of its reasoning as applied to Garner. The Carter 
court never explicitly states what its decision would have been 
had the plaintiff been Garner instead of Carter. In fact, it can 
be assumed that the Sixth Circuit could not have anticipated that 
its decision would have had any effect on this litigation at all. 
Tennessee v. Garner was decided by the Supreme Court and remanded 
in 1985. Carter was decided in 1988. There was no intervening 
Sixth Circuit activity on the Garner case, and it could have 
easily and properly been assumed that this case had been decided. 
Because of the different postures of the plaintiffs involved, 
this lack of knowledge or consideration of this crucial factor 
precludes the use of Carter to dismiss Garner's cause.



The defendants next argue that Tennessee v. Garner should
not be applied retroactively in the instant case because the City
of Memphis would be penalized whereas the City of Chattanooga was
absolved of liability. Defendants's Brief, p. 8. However, the
Supreme Court's decision in James B. Beam Distilling Co. v.
Georgia^ ____ U.S. ____, 111 S.Ct. 2439 (1991) anticipated this
very argument and quelled it when it stated:

Nor, finally, are litigants to be 
distinguished for choice-of-law purposes on 
the particular equities of their claims to 
prospectivity: whether they actually relied
on the old rule and how they would suffer 
from retroactive application of the new. It 
is simply in the nature of precedent, as a 
necessary component of any system that 
aspires to fairness and equality, that the 
substantive law will not shift and spring on 
such a basis. To this extent our decision 
here does limit the possible application of 
the Chevron Oil analysis, however irrelevant 
Chevron Oil may otherwise be to this case.
Because the rejection of modified 
prospectivity precludes retroactive 
application of a new rule to some litigants 
when it is not applied to others, the Chevron 
Oil test cannot determine the choice of law 
by relying on the equities of the particular 
case. . . .Once retroactive application is 
chosen for any assertedly new rule, it is 
chosen for all others who might seek its 
prospective application. The applicability 
of rules of law are not to be switched on and 
off according to individual hardship; 
allowing relitigation of choice-of-law issues 
would only compound the challenge to the 
stabilizing purpose of precedent posed in the 
first instance by the very development of 
"new” rules. . .

Beam, 111 S.Ct. at 2447-2448.
Ironically, the defendants here rely upon the same argument 

as did the Beam court, namely, the reliability of the doctrine of



stare decisis. The defendants state that holding Memphis liable 
for following existing law would be to depart from the important 
principle of stare decisis. The Beam court also noted the 
importance of stare decisis and crafted a rule that would enable 
litigants to be assured of what law will apply to their case.

The defendants arguments concerning their reliance upon the
Tennessee statute and common law implies that the option of
shooting nonviolent, nondangerous fleeing felons was a common
practice in the United States. The Supreme Court summarized the
state of the practice in Tennessee v. Garner when it stated:

. . . Nonetheless, the longterm movement has 
been away from the rule that deadly force may 
be used against any fleeing felon, and that 
remains the rule in less than half the 
States.
This trend is more evident and impressive 
when viewed in light of the policies adopted 
by the police departments themselves.
Overwhelmingly, these are more restrictive 
than the common-law rule. C. Milton, J.
Halleck, J. Lardner, & G. Abrecht, Police Use 
of Deadly Force 45-46 (1977) . The Federal 
Bureau of Investigation and the New York City 
Police Department, for example, both forbid 
the use of firearms except when necessary to 
prevent death or grievous bodily harm. Jd., 
at 40-41; App. 83. For accreditation by the 
Commission on Accreditation for Law 
Enforcement Agencies, a department must 
restrict the use of deadly force to 
situations where "the officer reasonably 
believes that the action is in defense of 
human life . . .  or in defense of any person 
in immediate danger of serious physical 
injury.” commission on Accreditation for Law 
Enforcement Agencies, Inc., Standards for Law 
Enforcement Agencies 1-2 (1983)(italics 
deleted). A 1974 study reported that the 
police department regulations in a majority 
of the large cities of the United States 
allowed the firing of a weapon only when a



felon presented a threat of death or serious 
bodily harm. Boston Police Department,
Planning & Research Division, The Use of 
Deadly Force by Boston Police Personnel 
(1974), cited in Mattis v. Schnarr, 547 F.2d 
1007, 1016, n. 19 (CAS 1976), vacated as moot 
suh nom. Ashcroft v. Mattis, 431 U.S. 171, 97 
S.Ct. 1739, 52 L.Ed.2d 219 (1977). Overall, 
only 7.5% of departmental and municipal 
policies explicitly permit the use of deadly 
force against any felon; 86.8% explicitly do 
not. K. Matulia, A Balance of Forces: A
Report of the International Association of 
Chiefs of Police 161 (1982)(table). See also 
Record 1108-1368 (written policies of 44 
departments). . . .  [Emphasis added].

Tennessee v. Garner, 471 U.S. at 19. Even though the policy of
the City of Memphis may have been based upon previously upheld
law, the obvious trend was for departments to recognize the
problems with such policies and voluntarily move to correct them.

Finally, the defendants continue to rely upon Carter and its 
Chevron analysis by their attempted distinction of the Beam 
decision. The defendants argument is self-contradictory when
they state:

The distinction between Beam and Garner is 
that in Garner the Court was not confronted 
with a previous Supreme Court ruling on the 
same issue. It would appear that Beam 
modifies Chevron Oil only to the extent that 
the Courts cannot determine the choice of law 
relying on the equities of each case. The 
principles of equality and stare decisis must 
prevail on a claim based on a Chevron Oil 
analysis. Ill S.Ct. at 2446. Defendants 
submit that the Beam case does not alter in 
any way this Court's reliance on Chevron Oil 
in the Carter decision.

Defendant's Brief, p. 9. On the one hand, the defendants admit 
that Beam rejects a consideration of the equities of each case 
for retroactivity purposes, but on the other hand, they argue

7



that Beam does not affect the Carter decision. From page 1130 to 
page 1137, the Carter decision specifically "weigh[s] the 
ineguity imposed by retroactive application” as required by the 
third factor in Chevron Oil Co. Carter, 850 F.2d at 1130-1137. 
Consequently, the Beam decision appears to nullify that entire 
portion of the Carter opinion. Therefore, the three Chevron 
factors are no longer met, and the Garner case must be applied 
retroactively.
C. The "law of the case” doctrine is applicable to this case.

Incredibly, the defendants contend that the "law of the 
case” doctrine does not apply because a "controlling authority 
has since made a contrary decision of law applicable to such 
issues.” Defendants' Brief, p. 10 quoting Coal Resources, Inc.
V. Gulf & Western Industries, 865 F.2d 761, 767 (6th Cir. 1989). 
The defendants contend that Carter is just such a decision by a 
controlling authority. Even if the Carter decision overruled any 
part of the Garner II decision, it simply cannot undo the Supreme 
Court's handiwork. It is obvious that the Supreme Court, the 
highest judicial body in the United States, decided that there 
had been a constitutional violation in the cause Cleamtee Garner, 
Father and Next of Kin of Edward Eugene Garner, a deceased Minor 
V. Memphis Police Department; City of Memphis, Tennessee, and 
that its ruling would be applied to that very case. Tennessee v. 
Garner, 471 U.S. at 22. No decision by the Sixth Circuit can 
change that. No intervening Supreme Court decision has changed 
that. Therefore, there is no option for the court other than to

8



determine that the Garner rule applies retroactively to the 
Garner litigants.
II. The City of Memphis did have a policy in place which was in 
violation of the deceased^s constitutional rights.

The defendants insist that since the General Order at issue 
in the instant cause was based upon state and casebook law, any 
policy of the city was established by the legislature and courts 
rather than the city. As pointed out in plaintiff's original 
brief, the facts of this case undermine that argument. If the 
City were compelled to follow this law as they insist they were, 
then they would not have had the power to restrict the 
application of deadly force as they did. Instead, the City 
"chose" to exempt some fleeing felons from the deadly force 
policy in contradiction to the state law. Obviously, at the time 
General Order 5-74 was adopted, the City did not feel compelled 
to adopt a policy mirroring the statute. It made a choice to 
include nondangerous burglary suspects to the list of persons 
that a police officer of the City of Memphis was free to shoot.

Particularly instructive on this point is Pruitt v. City of 
Montgomery^ Alabama, 111 F.2d 1475 (11th Cir. 1985). This case 
involved incredibly similar facts as in Garner, but the legal 
outcome was entirely different. There, the district court ruling 
on Pruitt's claim found that the City of Montgomery's "deadly 
force" policy was unconstitutional as applied to the shooting of 
an unarmed fleeing burglary suspect and granted partial summary 
judgment to the plaintiff and against the city. Pruitt, 771 F.2d 
1476.

9



Pruitt was an 18 year old boy who had walked into a wooded 
area behind an auto parts store. A citizen heard a disturbance 
and reported a possible burglary at the store. Police responded 
to the call, and Officer Kidd walked toward the rear of the 
store. Pruitt came out from behind some bushes and started 
running away. Kidd yelled "halt, police” several times. When 
Pruitt failed to stop, Kidd fired his weapon at Pruitt twice.
The second shot hit Pruitt in the buttocks leaving him paralyzed. 
Pruitt, 771 F.2d at 1477. Pruitt filed suit under Section 1983 
against the City, the Mayor, the Chief of Police, and Kidd 
alleging violations of his Fourth, Fifth, and Fourteenth 
Amendment rights. As stated, the district court granted summary 
judgment for Pruitt, and the City appealed. Id.

On the point at issue here, the district court in Pruitt 
first made a determination that Pruitt's civil rights had indeed 
been violated. Additionally, the court found that the City was 
liable for Kidd's use of deadly force "because Kidd had been 
acting pursuant to the city's deadly force policy (which itself 
was based upon the Alabama statute)." Id. at 1478. The court 
then noted:

See Monell v. Department of Social Services,
436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 
(1978). There was no real dispute over the 
fact that Kidd was acting pursuant to the 
City's deadly force policy, and the City does 
not appeal the district court's finding under 
Monell that "Pruitt's shooting was merely an 
execution of this policy." District Court 
Order at 4, Record, vol. II at 93. If an 
officer acts pursuant to City policy, the 
City can be held liable for damages despite 
the officer's "good faith" execution of that

10



policy. Owen v. City of Independence, 445 
U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 
(1980).

Pruitt, 771 F.2d at 1478, n. 6.
The plaintiff's position as to the policy of the City of 

Memphis is just as that found by the court in Pruitt. Memphis 
Police Department had a deadly force policy based upon Tennessee 
law. The law of Tennessee has been declared unconstitutional as 
applied. Officer Hymon was acting pursuant to that policy when 
he shot young Garner, and the shooting was merely an execution of 
that policy. Under the Monell standards, then the City of 
Memphis itself is clearly responsible for the violation of young 
Garner's constitutional rights.
III. The City can be held liable in the absence of individual 
liability on the part of the police officer.

The defendants here argue that this case is controlled by 
City of Los Angeles v. Heller, 475 U.S. 796 (1986) in which the 
court held that a city would not be held liable where an 
individual had suffered no constitutional injury at the hands of 
the individual police officer even though a city's policy may 
have authorized unconstitutionally excessive force. Defendants' 
Brief, p. 12-13. In the instant case, the defendants argue that 
since the district court in its first opinion exonerated Hymon on 
the merits, then the City of Memphis cannot be held liable. The 
fallacies in this argument are apparent from the record in the 
instant case and the law as it has developed.

In Doe V. Sullivan County, Tenn., supra, the court explained 
Heller's application in the context of qualified immunity. The

11



Doe court held that a city may still be liable for section 1983 
violations even though the individual is dismissed from the case 
on qualified immunity grounds. Doe, 956 F.2d at 554-555. That 
is exactly the situation at work in the instant case, and the 
City of Memphis can still be held liable.

The defendants here argue that since the district judge held
that "Hymon acted within his duties as a reasonable police
officer without malice, predisposition or racial animus and with
the guidelines afforded him as a Memphis policeman,” then the
individual was exonerated, and the City should be dismissed also.
Defendants' Brief, pp. 12-13. However, this argument misses
several key points. The first of which is that the district
court found no constitutional violation on anybody's part in its
first or second opinions. That finding was overruled in Garner
II and Tennessee v. Garner. The Supreme Court stated:

The District Court concluded that Hymon was 
justified in shooting Garner because state 
law allows, and the Federal Constitution does 
not forbid, the use of deadly force to 
prevent the escape of a fleeing felony 
suspect if no alternatives means of 
apprehension is available. . . This 
conclusion made a determination of Garner's 
apparent dangerousness unnecessary. The 
court did find, however, that Garner appeared 
to be unarmed, though Hymon could not be 
certain that was the case. . . . Restated in 
Fourth Amendment terms, this means Hymon had 
no articulable basis to think Garner was 
armed.
In reversing the Court of Appeals accepted 
the District Court's factual conclusions and 
held that "the facts, as found, did not 
justify the use of deadly force.” 710 F.2d 
at 246. We agree. Officer Hymon could not 
reasonably have believed that Garner — young,

12



slight, and unarmed— posed any threat.
Indeed, Hymon never attempted to justify his 
actions on any basis other than the need to 
prevent an escape. The District Court stated 
in passing that ”[t]he facts of this case did 
not indicate to Officer Hymon that Garner was 
'non-dangerous.'” . . . This conclusion is
not explained, and seems to be based solely 
on the fact that Garner had broken into a 
house at night. However, the fact that 
Garner was a suspected burglar could not 
without regard to the other circumstances, 
automatically justify the use of deadly 
force. Hymon did not have probable cause to 
believe that Garner, whom he correctly 
believed to be unarmed, posed any physical 
danger to himself or others.

Tennessee v. Garner, 471 U.S. at 20-21. Obviously, then, the 
district court's findings on the constitutional violation by 
either Hymon or the City is not controlling.

Another aspect of this case overlooked by the defendants is 
that Hymon was dismissed from the case on qualified immunity 
grounds. The defendants' cite to the original holding of the 
district court and state that this finding was not challenged on 
appeal. However, the appellate court certainly addressed Hymon's 
individual liability in Garner v. Memphis Police Department, City 
of Memphis, Tennessee, 600 F.2d 52 (6th Cir. 1979)[Garner J]. 
There, the court found that the district court had dismissed the 
case against Hymon because he acted in good faith reliance on 
Tennessee law. Garner I, 600 F.2d at 54. Further, the Sixth 
Circuit specifically held, "Applying the qualified "good faith" 
privilege or immunity from liability for constitutional claims,.
. . we affirm that portion of the District Court's judgment 
dismissing the case against the individual defendants." Id. See

13



also Garner II, 710 F.2d at 242; Tennessee v. Garner, 471 U.S. at 
5 (Sixth Circuit affirmed Hymen's dismissal on qualified 
immunity). Accordingly, the reason that Hymon is not a defendant 
today has nothing to do with whether he, in fact, violated 
Garner's constitutional rights. Instead, it is clear that he was 
dismissed on the doctrine of qualified immunity. Therefore, 
under Doe the city is still a viable defendant. Doe, 956 F.2d at 
554.

The defendants also rely upon Rodriguez v. City of Passaic, 
730 F.Supp. 1314 (D.N.J. 1990) and Belcher v. Oliver, 898 F.2d 32 
(5th Cir. 1990) for the proposition that municipalities have been 
absolved of liability even where the officer was just granted 
qualified immunity. This is not the proposition for which 
Belcher stands. In Belcher, there was no constitutional 
violation. One of the claims against the officers is that they 
"failed” to follow city policy, and the court found the claims 
against the city "more attenuated" than those against the 
officers. Belcher, 898 F.2d at 36. The court concluded that 
since there had been no constitutional violation, there was no 
need to reach the city policy questions. Id. Consequently, 
Belcher actually supports the plaintiff's position, and Rodriguez 
is not the law of the Sixth Circuit.
IV. The plaintiff need not show a deliberate or conscious 
decision on the part of the City of Memphis to ignore the 
constitutional rights of the deceased.

The defendants' final argument seeks to insert a new 
standard at the juncture of the litigation. The defendants

14



contend that the meaning of the term "policy" as used in Monell 
has mutated into a "deliberate indifference" standard in all 
situations. As support, the defendants cite City of Canton, Ohio
V. Harris, 489 U.S. 378 (1989), but they admit that the City of 
Canton case involves a "failure to train" claim. As will be 
seen, that is a different situation from the one at issue here.

In City of Oklahoma City v. Tuttle, 471 U.S 808 (1985), the 
Supreme Court examined the difference in the type "policy" claim 
made in the instant case and that of a "failure to train" claim. 
In Tuttle the respondent did not claim that Oklahoma City had an 
express policy of authorizing excessive force. Rather, the 
respondent argued that the city had a "policy" of training and 
supervising police officers and that the policy resulted in 
inadequate training and the constitutional violations. Tuttle, 
471 U.S. at 822-824. The Court then explained the difference in 
the type "policy" at issue in Monell and that before it. While 
the Monell decision analyzed an express, written policy of the 
city of New York, in Tuttle, there was no written policy.
Rather, liability could only be based upon an affirmative link 
between the training and adequacies alleged to have caused the 
violation. Tuttle, 471 U.S. at 822-824.

It is evident that the issue of "deliberate indifference" 
does not arise in every situation in which a city is alleged to 
have violated a constitutional right through its "policy." It 
only arises where there is an absence of an explicit, 
unconstitutional policy. In that case, plaintiffs can still

15



prevail if they can show that the city manifested deliberate 
indifference to repeated constitutional violations to the point 
that the practice becomes the policy through which liability 
attaches. City of Canton^ Ohio, 489 U.S. at 390. The Court in 
City of Canton, Ohio makes the point most eloquently when it 
notes:

For example, city policy makers know to a 
moral certainty that their police officers 
will be required to arrest fleeing felons.
The city has armed its officers with 
firearms, in part to allow them to accomplish 
this task. Thus, the need to train officers 
in the constitutional limitations on the use 
of deadly force, see Tennessee v. Garner, 471 
U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), 
can be said to be "so obvious," that failure 
to do so could properly be characterized as 
"deliberate indifference" to constitutional 
rights.
It could also be that the police, in 
exercising their discretion, so often violate 
constitutional rights that the need for 
further training must have been plainly 
obvious to the city policy makers, who, 
nevertheless, are "deliberately indifferent" 
to the need.

City of Canton, Ohio, 489 U.S. at 390, n. 10.
In the instant case, we are not compelled to get into such a 

nebulous area as would justify a "deliberate indifference" 
standard. At issue here is an express, written unconstitutional 
General Order of the City of Memphis which authorized the 
constitutional violation in the instant case. We need not look 
any farther to prove the right to recover. Just as in Monell we 
need no evidence other than this statement of the policy and its 
exercise. Just as in Monell the written policy as applied in

16



this case was found to be unconstitutional in a Supreme Court 
case. Consequently, no proof of deliberate indifference is 
necessary to find the constitutional violation and the city's 
responsibility for it. In other words, there is no need to show 
deliberate indifference to show that the city's policy was the 
cause of Garner's deprivation.

No "deliberate indifference" standard is discussed in 
Pleasant v. Zamieski, 895 F.2d 272 (6th Cir. 1990). There, the 
court scrutinized Detroit's deadly force policy after an officer 
had accidentally shot a defendant when he was resisting arrest. 
Pleasant, 895 F.2d at 274. Detroit's policy stated that no 
amount of force was too great to overcome dangerous resistance, 
and it restricted the use of deadly force in felony cases where 
absolutely necessary and subject to other rules and regulation. 
The Court then noted, "Taken as a whole, Detroit's policy, unlike 
the policy in Garner, does not authorize police officers to shoot 
unarmed, fleeing suspects. As such, Detroit has no policy 
condoning violations of the Constitution." Pleasant, 895 F.2d at 
274. Conversely, then, the Sixth Circuit has already found that 
the City of Memphis did, in fact, have a policy which would 
subject it to liability for the constitutional violation.

The Pleasant decision negates the defendants' argument in 
the instant case that this plaintiff is required to show 
deliberate indifference on the part of the City of Memphis or a 
conscious decision to ignore Garner's constitutional rights. Its 
holding is quite on point that Memphis' policy at the time of the

17



Garner death authorized police officers to shoot unarmed, fleeing 
suspect and so condoned violations of the Constitution.

CONCLUSION
The issues of municipality immunity and the retroactive 

application of the Garner rule are genuinely not the problem for 
the court in the instant case. The Sixth Circuit law on 
municipal immunity or lack thereof is clear, and Tennessee v. 
Garner decided the applicability of its rule of law to the 
litigants before it, the same litigants before this court. In 
any event, James B. Beam Distilling Co. v. Georgia weakens the 
effect of the Carter decision in the instant case.

The overriding concern in this case is whether the 
constitutional violation at issue was the result of a City of 
Memphis policy as defined by Monell for which it could be held 
liable. The plaintiffs have submitted undisputed evidence of 
that issue, and the defendants have failed to introduce any proof 
to the contrary. Further, the legal arguments advocated by the 
defendants are incorrect. Therefore, this record is ripe for 
this court to reverse the grant of summary judgment in favor of 
the defendants and resolve the issues in favor of the plaintiff. 
It will then only be for the court to remand for a finding on 
damages.

18



Respectfully submitted.

Plaintiff/Appellant 
200 Jefferson Ave., Ste. 800 
Memphis, TN 38103 
(901)575-8702

:lydb -̂ MlCLYDBJ MURPHY 
NAACP Legal Defense Fund 
99 Hudson St., 16th Floor 
New York, NY 10013 
(212)219-1900

X

ANNE BROWNLEE GULLICK 
200 Jefferson Ave., Ste. 800 
Memphis, TN 38103 
(901)575-8702

CERTIFICATE OF SERVICE
I hereby certify that two copies of the Rebuttal Brief of 

the Appellant was mailed by United States Mail to Henry L. 
Klein, Attorney for Defendants-Appellees, Apperson, Crump, 45 
Second Street, Suite 2110, One Commerce Square, Memphis, TN
38103, this the i  ‘a

AILEY. JRv 
Attorney for Plaintiff/Appellant

19



w
Ay

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.

MEMOCANDU/H

TO: File
FROM: Clyde E. Murphy
RE: Oral Argument - Pre-argument Conference

DATE: April 26, 1993

I. Argument

II.

III.

IV.

A. Whether the District Court is required to apply the Supreme Court’s holdings 
in Monell and Tenn v. Gamer, to the facts of this case, as ordered twice by 
the Court of Appeals and once by the Supreme Court.
1. General Order 5-74 of the Memphis Police Department established 

the policy of the department under the Monell standard
2. Tenn v. Gamer, demands that once the Monell standard is satisfied the 

City of Memphis must be held liable for the injury to Cleamtee 
Garner

B. This court has the power to resolve the outstanding issues in plaintiffs favor 
and grant plaintiffs motion for summary judgment
1. The Court must exercise that power here in the face of the lower 

court’s consistent refusal to abide by the instructions of this court and 
the Supreme Court

2. The procedural posture of this case demonstrates an unconscionable 
abuse of judicial procedure
a. June 23, 1986: Plaintiffs motion for partial summary judgment 

against city under Monell
b. 1988: Sixth Circuit decision in Carter
c. August 1991: Defendants filed supplemental response to 

plaintiffs motion for partial summary judgment citing Carter
d. June 30, 1992: Court denied plaintiffs motion for summary 

judgment and grants summary judgment in favor of defendants, 
and dismisses case

Fruits of Victory
A. Reverse summary judgment order for defendant and grant summary 

judgment for plaintiffs, i.e., resolve issues in favor of plaintiffs
B. Remand with explicit instructions

Defendant’s primary issue is retroactivity application 

Who is on the panel? Is this the same as the previous panel?