Tennessee v. Garner Motion to Affirm or Dismiss and Brief in Opposition

    Nos. 83-1035 
83-1070

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1983

THE STATE OF TENNESSEE,
Appellant, and

MEMPHIS POLICE DEPARTMENT; CITY OF MEMPHIS, TENNESSEE,
Petitioners, 

v.
CLEAMTSE GARNER, as father and next of kin of 

Edward Eugene Garner, a deceased minor,
Respondent-Appellee.

On Appeal from the United States Court of Appeals 
for the Sixth Circuit in No. 83-1035

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit in No. 83-1970

MOTION TO AFFIRM OR DISMISS 
in No. 83-1035 and

BRIEF IN OPPOSITION 
in No. 83-1070

STEVEN L. WINTER*
99 Hudson Street
New York, New York 10013
(212) 219-1900

WALTER L. BAILEY, JR.
Suite 901, Tenoke Euilding 
161 Jefferson Avenue 
Memphis, Tennessee 38103 
(90l) 521-1560

Attorneys for Respondent-Appellee

* Counsel of Record



QUESTIONS PRESENTED

Does a state statute that confers unlimited discretion 
on police officers to shoot nondangerous, fleeing 
felony suspects whom they reasonably assume to be 
unarmed violate the fourth, sixth, eighth and 
fourteenth amendments?

Does a municipal policy and custom of liberal use 
of deadly force that results in the excessive 
and unnecessary use of such force to stop nondangerous, 
fleeing felony suspects violate the fourth, sixth, 
eighth and fourteenth amendments?

Is the Memphis policy authorizing the discretionary 
shooting of nondangerous, fleeing property crime 
suspects racially discriminatory?



f

TABLE OF CONTENTS
Page

Questions Presented ................................  i
Table of Authorities ...............................  iii
Opinions Below ...................................... 1
Statement of the Case ..............................  2
Statement of Facts .................................  3
Reasons for Denying Review ......................... 6

I. The Court of Appeals Correctly Held 
that a State Statute that Confers 
Unlimited Discretion on Police 
Officers to Shoot Nondangerous,
Fleeing Felony Suspects Whom They 
Reasonably Assume to be Unarmed 
Violates Established Constitutional 
Principles ................................  6

II. The Standard Adopted by the Court 
of Appeals is Workable and, as a 
Practical Matter, Will Not Interfere
With Law Enforcement .....................  15

III. The Judgment Below Should be Affirmed
Because the Memphis Policy and Custom 
is One of Liberal Use of Deadly Force 
that Results in the Excessive and 
Unnecessary Use of Such Force to Stop 
Nonaangerous, Fleeing Felony Suspects .... 21

IV. Memphis's Policy Authorizing the 
Discretionary Shooting of Non­
dangerous, Fleeing Property Crime 
Suspects Violates the Equal Protection 
Clause Because it is Racially Discrim­
inatory ...................................  26

Conclusion ..........................................  31

-li-



TABLE OF AUTHORITIES

Arlington Heights v. Metropolitan Housing
Corp., 429 U.S. 252 (1977) ......................

Avery v. State of Georgia, 345 U.S. 559 (1953)....
Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972) ...
Bell v. Wolfish, 441 U.S. 520 (1979) ..............
Bivens v. Six Unknown Agents, 403 U.S. 388 (1971) .
Byrd v. Brishke, 466 F .2d 6

(7th Cir. 1972) .................................
Camara v. Municipal Court, 387 U.S. 523 (1967) ....
Carter v. Carlson, 447 F .2d 358 (D.C. Cir.

1971), rev'd on other grounds, 409 U.S.
418 (1973) .......................................

Castaneda v. Partida, 430 U.S. 482 (1977) .........
Clark v. Ziedonis, 368 F. Supp. 544

(E.D. Wise. 1973), aff'd on other grounds,
513 F .2d 79 (7th Cir. 1975) ....................

Cunningham v. Ellington, 323 F. Supp. 1072
(W.D. Tenn. 1971) ...............................

Cupp v. Murphy, 412 U.S. 291 (1973) ...............
Dalia v. United States, 411 U.S. 238 (1979) ......
Davis v. Mississippi, 394 U.S. 721 (1969 ) ....... .
Dunaway v. New York, 442 U.S. 200 (1979) .........■
Enmund v. Florida, ____  U.S. ____ ,

73 L.Ed.2d 1140 (1982) .........................
Florida v. Royer, 460 U.S. ____, 75

L.Ed.2d 229 (1983) .............................
Furman v. Georgia, 408 U.S. 236 (1972) ...........
Garner v. Memphis Police Dept., 712 F .2d 240

(6til Cir. 1983) ................................
Garner v. Memphis Police Dept., 600 F .2d 52

(6th Cir. 1979) ................................
Giant Foods, Inc. v. Scnerry, 51 Md. App.

586, 544 A.2a 483 (1982) .......................
Gregg v. Georgia, 428 U.S. 153 (1976) ............

Cases:

30

31 

22 

12

7

12

10

12

31

1 6

22

9

9

9 ,  11

9

1 4 - 1 5

1 1

26

passim

2,  3 ,  1 4 ,  26

16,  17 ,  18 

1 0

Page

-i i i-



Gregory v. Thompson, 500 F.2d 59
(9th Cir. 1974) .................................  1 2

Hayes v. Memphis Police Dept., 571 F .2d 357
(6th Cir. 1978) ....................................  22

Herrera v. Valentine, 653 F.2d 1220
(8th Cir. 1981) ....................................  12

Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 1972) ... 12
Ingraham v. Wright, 430 U.S. 651 (1977 ) ........... 1 2
Jenkins v. Averett, 424 F.2d 1228

(4th Cir. 1970) .................................  3, 11
Johnson v. Click, 481 F.2d 1027 (2d Cir.),

cert, denied, 414 U.S. 1033 (1973) .............  12, 1 3
Johnson v. Zerbst, 304 U.S. 458 (1938) ............ 7
Jones v. Marsnall, 528 F .2d 132 (2d Cir. 1975) .... 8, 13
Kennedy v. Mendoza-Martinez, 372 U.S. 144

(1963) ............................................  12-13
Ker v. California, 374 U.S. 23 (1963) ............. 9
Kortura v. Alkire, 69 C.A.3d 325, 138 Cal. Rptr.

26 (1977 ) ........................................ 16, 1 7, 1 8
Krause v. Rhodes, 570 F .2d 563

(6th Cir. 1977) .................................  12
Landrigan v. City of Warwick,

628 F . 2a 736 (1st Cir. 1980) ...................  12
Leite v. City of Providence, 463 F. Supp.

585 (D. R.I. 1978 ) ..............................  26
McKenna v. City of Memphis, 544 F. Supp. 415

(W.D. Tenn. 1982) ...............................  22, 25
Meldrum v. State, 23 Wyom. 12, 146 P.596

(1915) ...........................................  16
Monell v. Department of Social Services,

436 U.S. 658 (1978 ) .............................  2, 3, 13, 26
Morgan v. Labiak, 368 F .2d 338

(10th Cir. 1966 ) ................................  12
Qualls v. Parish, 534 F.2d 690

(6th Cir. 1976 ) .................................  22
Rowe v. General Motors Corp., 457 F.2d 348

(5th Cir. 1972) .................................  31
Scnmerber v. California, 384 U.S. 757

(1966 ) .............................................  9f

-iv-

Cases: Pa9e



Schumann v. City of St. Paul, 268 N.W.2d 903
(Minn. 1978) ..................................... 16

Screws v. United States, 325 U.S. 91 (1945) ......  12
State ex rel. Baumgarner v. Sims, 139

W.Va. 92, 79 S.E.2d 277 (1963) ...................  16
State v. Sundberg, 611 P.2d 44

(Alas. 1980) ..................................... 16
Teftt v. Seward, 689 F .2d 637

(6th Cir. 1982) .................................  12
Terry v. Ohio, 392 U.S. 1 (1968 ) ..................  6/ 9, 10, 11
Trop v. Dulles, 356 U.S. 86 (1958) ...............
United States v. Calandra, 414 U.S.

338 (1974) ....................................... 9
United States v. City of Memphis, Civ. Action

C-74-286 (W.D. Tenn. 1974) ...................... 31
United States v. Clark, 31 Fed. 710

(C.C.E.D.Mich 1837) .............................  13
United States v. Place, ___ U.S. ___,

77 L. Ed. 2d 110 (1983) ...........................  9, 10
United States v. Stokes, 506 F .2d 771

(5th Cir. 1975 ) .................................  12
United States v. Villarin Gerena,

553 F . 2d 723 (1st Cir. 1977 ) ...................  12
Uraneck v. Lima, 359 Mass. 749, 269

N.E.2a 670 (1971 ) ...............................  16
Washington v. Davis, 426 U.S. 224 (1976 ) .......... 31
Werner v. Hartfelder, 113 Mich. App. 747,

318 N.W. 2d 825 (1982) ...........................  17
Wiley v. Memphis Police Dept., 548 F .2d 1247 

(6th Cir. 1977), aff'g, Civ. Action
No. C-73-8 (W.D. Tenn. June 30, 1975) .......... 13, 22, 24, 27

Williams v. Kelly, 624 F .2d 695
(5th Cir. 1980) .................................  7

Yick Wo v. Hopkins, 118 U.S. 356 (1886) ........... 7, 26

Cases: Pa£e

-v-



Constitutional and Statutory Authorities: Page

U.S. Constitution amend. IV ........................ 9

U.S. Constitution amend. XIV, § 1 ................. 7

2
2

Alaska St at. §' 11.81.3 70 ........................... 16

Cal. Penal Code § 196 (V.Test 1970) ................. 17

Hawaii Rev. Stat. Title 37, 18
16

Minn. Stat. Ann. § 609.7 ........................... 16

Tenn. Code Ann. § 40-808 (1975) ................... 3, 8, 14

Tex. Penal Code, Art. 2,
§ 9.51(c) (1974) ................................ 18

Other Authorities:

W.A. Beller & H.J. Karales, Split Second 
Decisions: Snootings of and by Chicago 
Police (Chicago Law Enforcement Study 1 9

4 w. r 1ackstone, Commentaries
13

M . Blumberq, The Use of Deadly Firearms by
Police Officers: The Impact of Individuals, 
Communities, anc Race (Ph.D. Dissertation, 
S.U.N.Y., Albany, Sch. of Crim. Justice

19

Ron 1 pn f. Schulman, Arrest Witn and Without
a Warrant, 75 U. Pa. L. Rev. 485 (192/) ...... 13

Fvfe, Obersvations on Deadly Force, 27 Crime
& Delinquency 376 (1981) ....................... 2G

Matulia, A Balance of Forces: A Report of the
international Association of Chiets or police 
(National Institute of Justice 1982) .......... . 16, 17, 18, 21

^ver, Police Shootings at Minorities: Tne_
Case of Los Angeles, 52 Annals of Amer.
Acad. & Soc. Sci. 98 (1980) ................... 19

k. Perkins, Criminal Law (2d ed. 1969) ...........
-vi-

13



Ringel, Searches and Seizures, Arrests 
and Cofessions, §23.7 (2d ed. 1982)

Page

16
Sherman, Execution Without Trial; Police 

Homicide and the Constitution,
33 Vand. L. Rev. 71 (1980) ....................

T. Taylor, Two Studies in Constituional
Interpretation (1966) ..........................

Commission on Accreditation For Law
Enforcement Agencies, Standard for Law 
Enforcement Agencies (August 1983) ............

Community Relations Service, United States 
Department of Justice, Mempnis Police 
and Minority Community: A Critique (May 1984) .

Comment, Deadly Force to Arrest: Triggering
Constitutional Review, 11 Harv. Civ. Rights- 
Civ. Lib.L. Rev. 360 (976) ....................

Mote, Legalized Murder of a Fleeing Felon,
15 Va. L. Rev. 582 (1929) .....................

Note, Tne Use of Deadly Force in Arizona 
by Police Officers, 1972 L.& Soc. Order 
481 .............................................

Staff Report to the Michigan Civil Rights
Commission, (May 18, 1981) ....................

12-13

13

21

31

13, 16-17 

13

13

17

-vi l-



Mos. 83-1035 
83-1070

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1983

THE STATE OF TENNESSEE,
Appellant, and

MEMPHIS POLICE DEPARTMENT; CITY OF MEMPHIS, TENNESSEE,
Petitioners,

v.
CLEAMTEE GARNER, as father and next of kin of 

Edward Eugene Garner, a deceased minor,
Respondent-Appellee.

On Appeal from the United States Court of Appeals 
for the Sixth Circuit in No. 83-1035

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit in No. 83-1070

MOTION TO AFFIRM OR DISMISS 
in No. 83-1035 and

BRIEF IN OPPOSITION 
in No. 83-1070

Respondent-appellee, CLEAMTEE GARNER, respectfully 
submits that his motion to affirm the judgment below or dismiss 
the appeal in No. 83-1035 should be granted and that the petition 
for a writ of certiorari in No. 83-1070 should be deniea.

OPINIONS EFLCV7
The decision of the United States Court of Appeals tor 

the Sixth Circuit, rendered on June 16, 1983, is reported as 
Garner v. Mempnis Police Dept., 712 F .2d 240 (6th Cir. 1983).
Rehearing was denied on September 26, 1983; this order is



notea at 710 F.2d at 240 . The Sixth Circuit's prior opinion
Vis reported at bUO F.2d 52 (6th Cir. 1979).

STATEMENT OF THE CASS
Fifteen—year—old Edward Eugene Garner was shot and 

Killed by a Memphis police officer on the night of October 
3, 1974. On April 8, 1975, Cleamtee Garner filed "an action 
for damages brought pursuant to 42 U.S.C. §§ 1981, 1983,
1985, 1986 and 1988 to redress the deprivations of the rights, 
privileges and immunities of Plaintiff's deceased son, Eaward 
Eugene Garner, secured by the Fourth, Fifth, Sixth, Eighth
and Fourteenth Amendments to the United States Constitution."

- 1/Complaint K 2; App. b. On August 18, 1975, the district 
court entered an order dismissing the City of Memphis and 
tne Memphis Police Department as defendants under 42 U.S.C.
§ 1983. Trial was held on August 2 through 4, 1976. On 
September 29, 1976, the district court entered a memorandum 
opinion rendering judgment for the defendants.

Plaintiff appealea. The court of appeals, Chief 
uudge Edwarus and Judges Merritt and Lively, reversed and 
remanded the case for reconsideration in light of Monel1 v . 
Department of Social Services, 436 U.S. 658 (1978). One of 
tne questions that it listen for consideration on remand was 
whetner "a municipality's use of deadly force under Tennessee 
law to capture allegedly nondangerous felons fleeing from

*/ Citations to the opinions below are 
the petition for a writ of certiorari in
designated as A. ____. Citations to the
the Joint Appendix in the Sixth Circuit

to the appendix to 
No. 83-1070 and are 
record below are to 

ana are designated
as App.
1/ The suggestion by the state, appellant in Mo. 83-1035, 
tnat the fourth amenament haa not been raised, see Jurisdictional 
Statement at 5, is incorrect. Indeed, the district court 
noted in its initial opinion that: "Plaintiff cited specific­
ally in this regard the Fourth Amendment right to be free of 
unreasonable seizure of the body ... incorporated into the 
due process clause of the Fourteenth Amendment and made 
applicable to the States." A. 2. See also Complaint 1| 19,
App. 11-12; Memorandum Opinion of Feb. 29, 1980, A. 21.

- 2-



nonviolent crimes [is] constitutionally permissible under 
the fourth, sixth, eighth and fourteenth amendments?" Garner 
v. Memphis Police Dept., 600 F.2d 52, 55 (6th Cir. 1975); A.
18. It also remanded for consideration of the question of 
Mempnis's "policy or custom" for purposes of liability under 
Mcnell. Id., 600 F.2d at 55; A. 15.

On remand, the district court denied plaintiff the 
opportunity to introduce additional evidence on the question 
of the Memphis "policy or custom," to submit an offer of 
proof, or to suomit a brief on the merits; it entered judgment 
for the defendants. A. 20. After consideration of plaintiff's 
motion to reconsider, the court allowed the submission of a 
orief and offer of proof and then again entered judgment for 
the defendants. A. 31. The court of appeals, Chief Judge 
Edwards and Judges Merritt and Keith, reversed. It held 
that the Tennessee statute, Term. Code Ann. $ 40-808 (1975), 
violated the fourth amendment and the due process clause of 
the fourteenth amendment "because it authorizes the unnecessarily 
severe and excessive, and therefore unreasonable," use of 
deadly force to effect the "arrest" of unarmed, nonviolent, 
fleeing felony suspects such as plaintiff's son. 710 F.2d 
at 241; A. 40-41. Rehearing ano rehearing en banc were 
denied on September 26, 1983. 710 F .2d at 240; A. 58.

STATEMENT OF FACTS
At the time of his death, Edward Eugene Garner was 

fifteen-years-old. He was an obvious juvenile; slender of 
build, he weighed between 85 and 100 pounds and stood only 
five feet and four inches high. App. 78 and 290-91. He

-3-



nad a minor juvenile record. At the age of 12, ne and two 
other boys illegally entered the house in whose yard they 
were playing. App. 686 and 689. In July of 1974, his family
called the police when they discovered that he had taken a

2/jar of pennies from a neighbor's house. He was placed on
probation for one year. App. 88-89 and 689. There was also
a prior arrest for a curfew violation, but that was resolved
when it was explained that young Garner was working at a local
store and under supervision at the time. App. 84 and 693-94.

On the night of October 3, 1974, Officers Hymon and
Wright responded to a burglary in progress call at 737
Voilentine in Memphis. When they arrived at that address, a
woman was standing in the door pointing at the house next door.
Upon inquiry by Officer Hymon, she said that "she had heard
some glass breaking or something, and she knew that somebody

3/was breaking in." App. 207. Hymon went around the near 
side of tne house, his revolver drawn, while Wright went around 
the far side. Hymon reached the backyard first, where he 
heard a door slam and saw someone run from the back of the 
house. He located young Garner with his flashlight:

2/ The neighbor declined to call the police about this 
minor incident. It was the family that insisted that the 
police be called. App. 88-89.
3/ Hymon testified that: "Roughly I recall her saying,
'They are breaking inside....'" App. 2u7. He qualified 
that testimony when he was asked: "Did you understand her
to be saying that there were several people inside the house?" 
He responded: "I don't really think she knew. I think that 
she —  I think that she might have mentioned that she had 
heard some glass breaking or something, and she knew that 
somebody was breaking in. I don't think that the plural 
form had any indication of her knowing." Id.

This version was corroborated by his partner, Officer 
Wright. He testified that: "I was leaning over in the street 
like this to hear what she was saying through the open door. 
She said, 'Somebody is breaking in there right now.'" App. 
707.

-4-



Garner was crouched next to a six foot cyclone fence at
the back of the yard aoout 30 to 40 feet away from Hymon.
Hyiuon was able to see one or both of Garner's hands; he
concluded that Garner was not armed. App. 239, 246-47, 658,

4/and 677.
While young Garner crouched in Hymon's flashlight 

beam, Hymon identified himself and ordered Garner to halt.
Garner paused a few moments during which Hyrnon made no attempt

5/to advance, but continued to aim his revolver at Garner.
Garner bolted, attempting to jump the fence. Hymon fired, 
striking young Garner in the head. Garner fell, draped over 
the fence. He did not die immediately; when the paramedics 
arrived on the scene "he was holding his head and just thrashing 
about on the ground," App. 141, "hollering, you know, from 
the pain." App. 137. Edward Eugene Garner died on the 
operating table. App. 153.

4/ At his deposition, introduced into evidence, hymon 
testified that: "I am reasonably sure that the individual
was not armed___ " App. 246. On direct examination by the
city at trial, Hymon was asked: "Did you know positively
whether or not he was armed?" He replied: "I assumed he 
wasn't...." App. 656.

Hymon also testified that Garner did not act as an 
armed suspect would, neither firing a weapon not throwing it 
down. App. 246. He testified that: "I figured, well, if
he is armed I'm standing out in the light and all of the 
light is on me the[n] I assume he would have made some kind 
of attempt to defend himself...." App. 658. That officer 
Hymon operated on the assumption that young Garner was unarmed 
is further corroborated by his testimony that he "definitely" 
would nave warned his partner if he had had any question 
whether Garner was armed, App. 246-47, and that: "I would 
have taken more cover than what I had." Id.
5/ Hymon testified that he did no more than take "a couple 
of steps," App. 651, "which wasn't, you know, far enough to 
make a difference." App. 256. Officer Wright testified 
tiiat when he rounded the corner of the house after the shot, 
Hymon "was standing still...." App. 720. According to 
Wright, it took only "three or four seconds" for Hymon to 
reach Garner after the shot. Id.

-5-



There was no one home when the house was broken 
into. After the shooting, the police found that young Garner 
had ten dollars and a coin purse taken from the house. App. 
737. The owner of the house testified that the only items 
missing were a coin purse containing ten dollars and a ring
belonging to his wife, but that the ring was never found.

6/The ten dollars were returned. App. 169.
Plaintiff called two expert witnesses —  Chief Detective 

Dan Jones of the Shelby County Sheriff's Department and 
Inspector Eugene Barksdale, former commander of the personal 
crimes bureau of the Memphis Police Department —  to testify 
about the reasonableness of Hymon's use of deadly force 
under the circumstances. As the district court found: "The 
substance of such testimony was to the effect that Hymon 
should first have exhausted reasonable alternatives such as 
giving chase and determining whether he had a reasonable 
opportunity to apprehend him in some other fashion before 
firing his weapon." A. 8. Both Jones and Barksdale testified 
that Hymon "snould have tried to apprehend him," App. 278 
ana 375; Barksdale added that "in all probability he could 
have apprehended the subject without having to shoot him...." 
App. 373.

REASONS FOR DENYING REVIEW
I. THE COURT OF APPEALS CORRECTLY HELD THAT A 

STATE STATUTE THAT CONFERS UNLIMITED DIS­
CRETION ON POLICE OFFICERS TO SHOOT NON- 
DANGEROUS, FLEEING FELONY SUSPECTS WHOM THEY 
REASONABLY ASSUME TO BE UNARMED VIOLATES 
ESTABLISHED CONSTITUTIONAL PRINCIPLES_______
The court of appeals applied established constitu­

tional principles to review a state statute that authorizes

6/ The owner also testified that: "The first -- I had some 
old coins in there and when they did let me in, I went to 
them. They were still there." Id.

-6-



police officers to use deadly force against nondangerous, 
fleeing felony suspects. It held that the fourth amendment 
applies ana that it requires reasonable methods of capturing 
suspects. 710 F. 2d at 243; A. 44. As at common law —  when 
all felonies were capital offenses, tne fleeing felon doctrine 
authorized the use of deadly force to prevent the felon's 
escape —  the court of appeals held that the fourth amendment 
allows only the reasonable, proportioned use of deadly force 
in the arrest context: i.e., "the police response must
relate to the gravity and need...." Bivens v. Six Unknown 
Agents, 403 U.S. 388, 419 (1971 ) (Burger, C.J., dissenting). 
Since the use of deadly force against unarmed, nonviolent 
felony suspects is excessive, it violates the fourth amendment. 
710 F,2a at 246; A. 51.

The court of appeals also held that the use of aeadly 
force against unarmed, nonviolent felony suspects violates 
due process. The due process clause explicitly protects the 
right to life, U.S. Const, amend. XIV, § 1; Williams 
v. Kelly, 624 F.2a 695, 697 (5th Cir. 1980), a right so 
axiomatic that it is an understatement to characterize it as 
"fundamental." Compare Yick Wo v. Hopkins, 118 U.S. 356,
370 (1886) ("the fundamental rights to life, liberty and the 
pursuit of happiness"), and Johnson v. Zerbst, 304 U.S. 458,
462 (1938) ("fundamental human rights of life and liberty"), 
with Trop v. Dulles, 356 U.S. 86, 102 (1958) ("the right to 
have rights"). The Tennessee statute falls under the due 
process clause because the state interests cannot support 
the taking of life in the context of a nonviolent, nondangerous 
felony. 710 F .2d at 246-47; A. 52-53.

-7-



The state and the city argue that the court of appeals 
erred because the fourth amendment does no more than set the 
minimum standard —  i.e., probable cause for initiating 
an arrest, but that it does not govern the manner of police 
action in effectuating that arrest. Jurisdictional Statement 
at 8-9 ; Cert. Petition at 10-11. They argue that the reliance 
placed by the court of appeals on the Fourth Circuit's ruling 
in Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970), is 
misplaced because in Jenkins the officer had no probable 
cause to arrest and, thus, was not authorized to use any 
force. Jurisdictional Statement at 8; Cert. Petition at 11. 
Finally, they argue that the Court should grant review because 
the decision in this case conflicts with that of the Second 
Circuit in Jones v. Marshall, 528 F .2d 132 (2d Cir. 1975). 
Jurisdictional Statement at 10; Cert. Petition at 10.

The state and the city are wrong on each of these 
points, and the court of appeals is correct. As we show 
below, the fourtn amendment plainly applies under the prin­
ciples consistently enunciated by this Court and affirmed 
again only last Term. Moreover, the ruling below is entirely 
consistent with the decision in Jenkins and the parallel 
authority in every circuit, including the Second Circuit.

The Tennessee statute at issue, Tenn. Code Ann. § 40- 
808, provides that:

It, after notice of the intention to arrest the 
defendant, he either flee or forcibly resist, the 
officer may use all the necessary means to effect 
the arrest.

Id. It is an arrest statute; there can be no suggestion 
chat "such police conduct is outside the purview of tne 
Fourth Amendment." Terry v. Ohio, 392 U.S. 1, 16 (1968). Tne 
fourth amendment speaks directly to: "The right of the people

-8-



to be secure in their persons ... against unreasonable ...
seizures...." U.S. Const, amend. IV; Terry, 392 U.S.
at 16 ("It is quite plain that the Fourth Amendment governs
'seizures' of the person...."); accord United States v .
Place, ____ U.S. ____, 77 L.Ed.2d 110, 121-22 (1983); Dunaway
v. New York, 442 U.S. 200, 207 (1979); Cupp v. Murphy, 412 
U.S. 291, 294 (1973); Davis v. Mississippi, 394 U.S. 721,
726-27 (1969).

Moreover, the Court has long repudiated the contention 
that the fourth amendment governs only the "when" of police 
action ana not the "how." Only last Term, the Court reaffirmed 
what it "observed in Terry, '[t]he manner in which the seizure
...[was] conducted is, of course, as vital a part of the 
inquiry as whether [it was] warranted at all.'" United
States v. Place, 77 L.Bd.2d at 121 (quoting Terry, 392 U.S.

7/at 28). in Place, the Court went on to "examine the
agents' conauct___ " id., and found it "sufficient to render
the seizure unreasonable." I_d. at 122. See Schmerber v. 
California, 384 U.S. 757, 768 (1966) ("whether the means and 
procedures employed ... respected relevant Fourth Amendment 
standards of reasonableness"); Ker v. California, 374 U.S.
23, 38 (1963) (whether "tne method of entering the home may 
offena federal constitutional standards of reasonableness"); 
United States v. Calandra, 414 U.S. 338, 346 (1974) (subpoena 
"'far too sweeping in its terms to be regarded as reasonable' 
under the Fourth Amendment") (dicta); Dalia v. United States, 
411 U.S. 238, 258 (1979)("the manner in which a warrant is

7/ In Terry, the Court added that: "The Fourth Amendment 
proceeds as much by limitations upon the scope of governmental 
action as by imposing preconditions upon its initiation."
392 U.S. at 28-29.

-9-



executed is subject to later judicial reivew as to its rea­
sonableness" ) .

In determining the reasonableness of the use of deadly
force under the fourth amendment, the court of appeals followed
exactly the mode of analysis applied by this Court in considering
other forms of police action.

Terry and its progeny rests on a balancing of the 
competing interests to determine the reasonableness 
of the type of seizure involved within the meaning 
of "the Fourth Amendment's general proscription 
against unreasonable searches and seizures." 392 
U.S. at 20. We must balance the nature and quality 
of the intrusion on the individual's Fourth Amendment 
interests against the importance of the governmental 
interests alleged to justify the intrusion.

8/United States v. Place, 77 L.Ed.2d at 118. The court 
of appeals looked at the "nature and quality of the intrusion:"
As an intrusion by police, the use of deadly force is "a 
method 'unique in its severity and irrevocability.'" Garner,
710 F .2d at 243; A. 44 (quoting Gregg v. Georgia, 428 U.S.
153, 187 (1976)). It balanced this against the state's 
interests and concluded that, as was true at common law, the 
state interests are proportionate only when the underlying 
felony is a violent one or the fleeing suspect will endanger

o/ In fact, this mode of analysis did not originate in 
Terry; the Terry Court derived it from the decision in Camara 
v. Municipal Court, 387 U.S. 523 (1967):

In order to assess the reasonableness of the police 
conduct as a general proposition, it is necessary 
"first to focus upon the governmental interest 
which allegedly justifies official intrusion upon 
the constitutionally protected interests of the 
private citizen," for there is "no ready test for 
determining reasonableness other than by balancing 
the need to search [or seize] against the invasion 
which the search [or seizure] entails."

Terry, 392 U.S. at 20-21 (quoting Camara, 387 U.S. at 534- 
35, 536-37).



the physical safety of others. The court of appeals thus 
properly applied settled fourth amendment principles and 
correctly arrived at the decision below.

JenKins v. Averett, on wnich the court of appeals 
relied, is consistent with this reasoning. Nownere in Jenkins 
die the fourth Circuit engage in the reasoning suggested by the 
state and the city: that the snooting violated the fourth 
amendment because there was no probable cause to arrest. To 
tne contrary, the Fourth Circuit never discussed whether the 
police were authorized to stop Jenkins. Rather, the vice it 
found was that "our plaintiff was subjected to the reckless use 
of excessive force." 424 F .2d at 1232 (emphasis added).

Jenkins was premised on the principle that the fourth 
amendment protects the "inestimable right of personal security." 
la., 424 F .2d at 1232 (quoting Terry v. Ohio, 392 U.S. at 8-
9). Accord Florida v. Royer, 460 U.S. ____, 75 L.Ed.2d 229,
238 (1983); Davis v. Mississippi, 394 U.S. at 726-27 ("Nothing 
is more clear than that the Fourth Amendment was meant to 
prevent wholesale intrusions upon the personal security of our 
citizenry...."). As such, the fourth amendment "shield covers 
the individual's physical integrity." Jenkins, 424 F.2d at 
232. See Schmerber v. California, 384 U.S. at 767 ("we are dealing 
with intrusions into the human body"). Every circuit has 
concurred in this conclusion, although most now follow the

1/

9/ The city argues that the court of appeals "failtedj to 
recognize the valid state interests encompassed by the statute.... 
Cert. Petition at 11. This is false. The scope of the 
state interests in the use of deadly force were fully briefed 
in the court below. Brief for Appellees at 13; Brief for 
Appellant at 21-28, 33-35. They will not be recapitulated 
here because of the necessary length of such a discussion.
Suffice it to note that the question was fully considered by 
the court below; it simply decided the issue adverse to the 
city.

-1 1-



leadSecond Circuit's lead as articulated by Judge Friendly in 
Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert, denied, 414 
U.S. 1033 (1973), that "quite apart from any 'specific' of the 
Bill of Rights, application of undue force oy law enforcement 
officers deprives a suspect of liberty without due process of 
law." Id. at 1032; accord Landrigan v. City of Warwick, 628 
F.2c 736, 741-42 (1st Cir. 1980) (citing United States v.
Villann Gerena, 553 F.2d 723, 728 (1st Cir. 1977) (fourth and 
fifth amendments)); Howell v. Cataldi, 464 F.2d 272 (3rd Cir. 
1972); United States v. Stokes, 506 F.2d 771, 775-76 (5th Cir. 
1975); Tefft v. Seward 689 F.2d 637, 639 n. 1 (6th Cir. 1982);
Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972); Herrera v. Valentine, 
653 F .2d 1220, 1229 (8th Cir. 1981); Gregory v. Thompson,
500 F.2G 59 (9th Cir. 1974); Morgan v. Labiak, 368 F.2d 338 
(ICth Cir. 1966); Carter v. Carlson, 447 F .2d 358 (D.C. Cir.
1971), rev'a on other grounds, 409 U.S. 418 (1973). The 
court of appeals simply applied the well established prin­
ciple that excessive force by law enforcement personnel
violates the fourth amendment and the due process clause to

10/the facts of this case.

10/ In the courts below, respondent-appellee advanced another, 
estaolished, aue process principle that supports the judgment. 
The due process clause provides "protection against punishment 
without due process of law...." Sell v. Wolfish, 441 U.S.
520, 535 (1979); accorG Ingraham v. Wright, 430 U.S. 651,
671-72 n. 40 (1977); Kennedy v. Mendoza-Martinez, 372 U.S.
144, 165-67 (1963); Screws v. United States, 325 U.S. 91,
106 (1945); Krause v. Rhodes, 570 F.2d 563, 572 (6th Cir.
1977). Application of the seven iMendoza-Martinez criteria, 
citea in Wolfish as "useful guideposts," 441 U.S. at 538, 
establishes that the shooting of nondangerous, fleeing felony 
suspects "amounts to punishment," _id. at 535, in violation 
of the due process clause. Sherman, Execution Without Trial: 
Police Homicide and the Constitution, 33 Vand. L. Rev. 71 
(1980). This conclusion is particularly supported by the 
history of the common law fleeing felon doctrine, whicn was 
a direct outgrowth of the application of capital punishment 
and, in its earliest incarnations, summary punishment for

-12-



The state and city's argument that the decision below 
is in conflict with the Second Circuit opinion in Jones v . 
Marshall is simply wrong. Jones was decided before Monel1. 
Jones decided only the question of the privilege the police 
officer could invoke under § 1983, not the substantive con­
stitutional question under the fourteenth amendment.
Id., 528 F .2d at 137, 138, 140, 142. Indeed, it expressly 
rejected the view of the defendant in that case that the 
Connecticut statute was constitutional and that no further 
analysis was necessary. Id♦ at 137. Rather, it noted that 
Johnson v. Glick provides the 'controlling constitutional 
principle, id. at 139, declined to assess the balance of 
the competing interests, id. at 142, and instead incorporated 
the Connecticut rule of the officer's privilege as a defense 
to the s 1983 action. Id. at 138, 142. Thus, the opinion 
in Jones is in striding conformity with the rulings of the 
court of appeals in this case. On the first appeal, the 
Sixth Circuit held that the officer was entitled to invoke 
the qualified privilege of good faith reliance on state law.

10/ continued
all felonies. Sherman, supra, at 81; see also 4 W. Blackstone, 
Commentaries 98 (Garland ed. 1978); United States v. Clark,
31 Fed. 710, 713 (C.C.E.D.Mich. 1887); Bohlen & Schulman,
Arrest With and Without a Warrant, 75 U. Pa. L. Rev. 485,
495 (1927); Note, Legalized Muraer of a Fleeing Felon, 15 
Va. L. Rev. 582, 583 (1929); T. Taylor, Two Studies in Con­
stitutional Interpretation 28 (1968); R. Perkins, Criminal Law 
10 (2d ed. 1969) ; Note, The Use of Deadly Force in Arizona by 
Police Officers, 1972 L. & Soc. Order 481, 482; Comment, Deadly 
Force to Arrest: Triggering Constitutional Review, 11 Harv.
Civ. Rights & Civ. Lib. L. Rev. 361, 365 (1974). In addition, 
the Memphis policy promotes one of "tne traditional aims of 
punishment." Mendoza-Martinez, 372 U.S. at 168-69. The 
record establishes "tnat one of the principal purposes of 
wempnis's policy ... is to deter criminal conduct." Wiley, 
v. Memphis Police Dept., Civ. Action No. C-73-8, Slip op. at 13 
(W.D. Tenn. June 30, 1975); see App. 962, 1832-33 and 1848-50. 
Neither of the courts below, however, addressed this aspect of 
the due process issue.

-13-



Garner, 600 F .2d at 54; A. 16-A. 17. On the second appeal, it
reached the constitutional question not decided in Jones and 
held the state statute unconstitutional. 710 F.2d at 246- 
47; A. 51-A. 53.

The city makes one last argument against the balance 
of competing interests struck by the court of appeals. Without 
any supporting authority, it asserts that "the nighttime 
breaking and entering a dwelling is a crime so frequently 
associated with the commission of violence...." Cert. Petition 
at 13. But there is no evidence in the record to support

1 Vthis bald assertion.—  Nor has the Tennessee legislature
ever made such a factual determination. The statute at issue in 
this case was passed in 1858 and merely codified the then existing 
common law, Tenn. Code Ann. § 40-808; the Tennessee legislature 
lias never held hearings on this question.

The available evidence is to the contrary. As the 
Court has observed,

competent observers have concluded that there is 
no basis in experience for the notion that death 
so frequently occurs in the course of a felony 
for which killing is not an essential ingredient....
This conclusion was based on three comparisons of 
robbery statistics, each of which showed that only 
about one-half or one percent of robberies resulted 
in homicide. The most recent national crime statistics 
strongly support this conclusion.

11/ This argument is, in fact, inconsistent with the city's 
position in the prior cases and that expressed in the record 
in this case. Tne mayor of Memphis has on several occasions 
testified under oath regarding the reasons for the Memphis 
policy allowing the officer discretion to shoot unarmed 
burlgary suspects. On those occasions, he has testified 
that the policy is justified not because burglars commit 
violence in connections with that crime, but because they 
graduate to commit subsequent crimes of violence. App. 961; 
App. ia32-34.



Enmund v. Florida, ____  U.S. ____  73 L.Ed.2d 1140, 1153
(19b2) (citations and footnotes omitted). In light of the
fact that this is so for robbery, a crime that by definition 
involves the use of force or the threatened use of force, 
the city's assertion with regard to burglary is highly ques­
tionable.

In sum, the court of appeals applied well established 
fourth amendment principles as enunciated by this Court. It 
applied principles under the fourth amendment and the due 
process clause that are consistent with the holdings of 
every circuit in tne country. The decision below is correct, 
and review by this Court is unnecessary.

II. THE STANDARD ADOPTED 3Y THE COURT OF APPEALS 
IS WORKABLE AND, AS A PRACTICAL MATTER, WILL
not i nt er f er e with l a w e n f o r c e m e n t__________

The state and the city argue that the rule adopted by the 
court of appeals "places burdensome and impractical constraints 
on effective law enforcement," Jurisdictional Statement at 7, 
and that it "will create much confusion among law enforcement 
officers...." Cert. Petition at 11. That is simply not so.
Tne court of appeals has adopted a standard that is clear, 
workable, and not unduly restrictive of law enforcement.
Before an officer uses deadly force to stop a fleeing felony 
suspect, he or she must have "an objective, reasonable basis in 
fact to believe that the felon is dangerous or has committed a 
violent crime." 710 F.2d at 246; A. 52.

In fact, the actual practices of most law enforcement 
agencies demonstrate the practicability of the standard adopted 
by the court of appeals. Most jurisdictions already restrain 
the use of deadly force by police officers in a manner that is 
as restrictive or more restrictive than that adopted by the

-15-



court below. The common sense of law enforcement professionals 
across the nation is that these restrictive standards are 
workable ana do not hamper effective law enforcement.

While some number of states still retain the common law
J_2/rule, comparatively few police departments actually operate 

under that standard. Several states that ostensibly follow the 
common law rule have modified it by judicial interpretation.
For example, California is normally listed as one of those 
states tnat has codified the common law rule by statute. See 
e .9., Matulia, A Balance of Forces: A Report of the International 
Association of Chiefs of Police 17 (National Institute of 
Justice 1962); Comment, Deadly Force to Arrest: Triggering

12/ The state cites Ringel, Searches and Seizures, Arrests 
and Confessions, § 23.7 at 23-29 (2d ed. 1962), for the proposi­
tion tnat there are 24 states with statutes adopting the common 
law rule. Ringel, however, provides neither a listing of 
states nor authorities. An earlier article lists 24 states 
with statutes that codify the common law, Comment, Deadly Force 
to Arrest: Triggering Constitutional Review, 11 Harv. Civ.
Rights - Civ. Lib. L. Rev. 360, 366 n.20 (1976), but that 
listing is now incorrect. At least three of those states have 
amenaea their statutes. See Alaska Stat. § 11.61.370; Iowa 
Coae § 804.6; Minn. Stat. Ann. § o09.7; see Schumann v. City of 
St. Paul, 268 N.W.2d 903 (Minn. 1975). Also, as indicatea in the 
text, infra, some of those stares nave reaa tneir statutes more 
narrowly, confining the use of deadly force to those fleeing 
violent felonies. See kortuir v. Alkire, 69 C.A.3d 325, 138 
Cal.Rptr. 26 (1977); State v. Sundberg, 611 P.2d 44 (Alas.
1580) (reading prior Alaska statute consistently with new 
statute and limiting it to dangerous felonies); see also Clark 
v. Z ieaonis, 366 F. Supp. 544, 546 (2.D.Wise. 1973 ), aff'd on 
other grounds, 513 F.2d 79 (7th Cir. 1975) (reading Wisconsin 
statute as limited to violent felony situations).

Several states have no statute. In these jurisdictions, 
it is sometimes difficult to ascertain what rule is applied since 
the case law is frequently of substantial vintage. See, e .g ., 
State ex rel. baumgarner v. Sims, 139 W.Va. 92, 79 S.E.2d 277 
(1963); Melaruffi v. State, 23 Wyom. 12, 146 P. 596 (1915). As 
discussed infra, this may reflect the fact that few juris­
dictions actually employ deadly force to stop nondangerous 
fleeing felony suspects. Of the prior common law jurisdictions, 
some have reaffirmed the rule in recent years, Uraneck v .
Lima, 359 Mass. 749, 269 N .E.2d 670 (1971), while others have 
modified it. Giant Foods, Inc, v. Scherry, 51 Md.App. 586, 544 
A.2d 483 (1982).

-16-



Constitutional Review, 11 Harv. Civ. Rights-Civ. Lib. L. Rev.
360, 368 n .30 (1976); Cal. Penal Code § 196 (West 1970). Its
courts, however, have interpreted that statute to allow the use
of deadly force against only those fleeing violent felonies.
Kortum v. Alkire, 69 C.A.3d 325, 138 Cal. Rptr. 26 (1977).
Similarly, Maryland was a common law jurisdiction, but its
courts have limited the privilege to use deadly force to
those situations involving an immediate threat of harm. Giant
Foods, Inc, v. Scherry, 51 Md. App. 586, 544 A.2d 483 (1982)
(robber fleeing without threat of violence).

More importantly, the actual practices of most police
departments are governed not by state law but by more restrictive
municipal or departmental policies. See Matulia, supra, at 153-44.
For example, Michigan is a common law jurisdiction. See Werner
v. Hartfelder, 113 Mich. App. 747, 318 N.W.2d 825 (1982). But more
than half of the local law enforcement agencies have deadly force
policies that are more restrictive than the common law ana aoout
75% of those are consonant with the standard adopted by the court
of appeals in this case. Staff Report to the Michigan Civil Rights
Commssion at 54 et seg. (May lb, 1981). This trend is particularly
true of major metropolitan areas. Although Arizona, Connecticut,
Massachusetts, New Mexico, and Ohio are common law states, Phoenix,
New Haven, Boston, Alburquerque, Santa Fe, Cincinnatti, and Dayton all
have deadly force policies that would bar the shooting in this

13/case. App. 1318, 1291 1131, 1110, 1330, 1209, & 1218.

13/ The same is true for the Memphis Police Department, whose 
written policy is stricter than state law in that it prohibits 
the use of deadly force against those fleeing arrest from 
certain property crimes such as embezzlement. App. 1274. 
Although Memphis's written policy does authorize the shooting of 
fleeing burglars, it would prohibit the shooting that occurred 
in this case because it applies a defense of life standard when 
the fleeing suspect is a juvenile. Id.



The most recent survey of municipal deadly force policies
confirms this trend. The International Association of Chiefs
of Police ("IACP") solicited the deadly force policies of all
cities over 250,000. All but three responded. Matulia, supra,
at 153. Only four, or 7.5%, follow the common law rule. More
than half limit the use of deadly force in a manner that is
consonant with or stricter than tne standard adopted by the
court of appeals. About 40% limit the use of deadly force to
those fleeing from "atrocious" felonies; the IaCP report does
not distinguish between tnose policies that exclude burglary

11/from that category and those that include it. ^d. at 161.
The survey of municipal deadly force policies contained in the 
offer of proof, although somewhat dated, is to the same effect. 
The offer of proof contains the deadly force policies of 42

11/cities, including 30 of the 44 largest cities in this country. 
Over 70% of these policies would bar the shooting in this case; 
almost two thirds apply standards consonant with the decision 
below. The record information indicates that, for the 44

11/largest cities, these figures are 84% and 77%, resepectively.

14/ The information available to respondent-appellee, 
including the municipal policies contained in the offer of 
proof, indicate that no more than half of these policies 
include burglary as an "atrocious" felony. Thus, only about 
one quarter of the municipal policies considered by the IACP 
would allow the shooting in this case.
15/ Of the fourteen cities from this category that are not 
represented in the offer of proof, information is available on 
seven. Six of these cities —  Houston, El Paso, Forth Worth, 
Austin, San Antonio, and Honolulu —  are in states with deadly 
force statutes modeled on the Model Penal Code. Tex. Penal 
Code, Art. 2, §9.51(c) (1974); Hawaii Rev. Stat. Title 37, §
703-307(3)(1976 ) . Two others —  Baltimore, Maryland, and Long 
Beach, California —  are in states whose courts have restricted 
the use of deadly force. Giant Foods, supra; Kortum v. Alkire, 
supra.
16/ These figures include the seven cites discussed in n.15, 
supra.

-13-



Permissive state laws and municipal policies notwithstand­
ing, very few police departments actually use deadly force to 
stop fleeing suspects. Only a small minority of police firearm
discharges nationwide are for the purpose of stopping nondangerous

11/fleeing felony suspects. in large part, this reflects the fact
than nanoguns are an unreliable means of effecting an arrest.
Fcr example, the record information on the use of deadly force
to stop fleeing property crime suspects in Memphis shows that
between 1969 and 1974, Memphis police used their revolvers to
attempt to stop fleeing suspects on 114 occasions, resulting in

±8/only 16 woundings and 17 deaths. App. 1460-69. Although 
tne data is incomplete, it appears that a large percentage of the 
suspects fired upon eluded capture. Id.; App. 957. In the words 
of tne Memphis police director: "The chances are ... under the 
circumstances where deadly force is used..., ne [the police officer] 
will not hit [the suspectj." App. 953. He testified that 
part of the reason for canning warning shots was the fact that 
it had the opposite of the desired effect; it tended to spur 
the fleeing suspect. He concluded that shots that miss probably 
have the same effect. App. 963-64.

17/ The figures vary, of course, from city to city depending 
on that city's policy. See App. 791 (11.3% in New York between 
1971-1975); W.A. Beller & K.J. Karales, Split Second Decisions: 
Shootings of and by Chicago Police 6 (Chicago Law Enforcement 
Study Group 1981) (17% between 1974-1978); M. Mver, Police
Shootings at Minorities: The Case of Los Angeles, 52 Annals of 
Amer. Mcao. of Pol. & Soc. Sci. 98, 104 (1980) (Detween 1974-1978, 
15% of all shootings at blacks, 9% of all shootings at Hispanics, 
and 9% of all shootings at whites); M. Blumberg, The Use of 
Deadly Firearms by Police Officers: The Impact of Individuals, 
Communuites, and Race 201 (Ph.D. Dissertation, S.U.N.Y., Albany, 
Sch. of Crim. Justice Dec. 14, 1982) (7.8% in Atlanta between
1975-1978; between 1973-1974, 4.6% in the District of Columbia, 
10% in Portland, Ore., but 58.1% in Indianapolis).
18/ This represents only about half of all firearm discharges 
by Memphis police during this period. App. 1469.



Similarly, the use of deadly force in this context is 
insignificant to the ability of the police to make felony 
arrests. This is true in Memphis as elsewhere. Between 1969 and 
1974, Memphis police attempted to make property crime arrests 
with their firearms on 114 occasions, many of which were not 
successful. But during this period they made more than twenty-six 
thousand arrests for property crimes. App. 1767. As the 
Memphis police director observed: "of all arrests how many 
involve the use of deadly force, I would say it would be less 
than one percent, probably less than a half percent.... [I]f 
you want to even boil it down to arrests of felons I think you'd 
still find it less than —  well, let's say you'd find it a minute 
percentage point." App. 957-58. Dr. Fyfe has observed: "[I]n
order for the police to have cleared even one percent [more] of 
the nonviolent felonies [burglary, larceny, and auto larceny] 
reported in 1978 through 'apprehensions effected by shooting,' 
they would have had to increase the rate at which they shot 
people during that year by at least fifty-fold. Doing so would 
have resulted in approximately 35,000 fatalities and 70,000 
woundings." Fyfe, Observations on Deadly Force, 27 Crime 
& Delinquency 376, 381 (1981).

Thus, it is not suprising that, as noted above, the
majority of modern police departments no longer authorize the use
of deadly force in this context. Many, including the FBI, App.
1869, apply a strict defense of life policy. Also telling is the

11/position of professional police organizations. The

19/ Respondent-appellee recognizes that such standards "do 
riot estadlisn the constitutional mimima ...," Bell v. Wolfish,
441 U.S. at 543 n.27, and does not offer them as such. Indeed, 
these standards are more restrictive than that adopted by the 
court of appeals under the fourth amendment. But these standards 
are surely "instructive," Wolfish, supra, of the degree to which 
experienced police professionals have concluded that the authority 
to shoot nondangerous fleeing suspects is not necessary to 
effective law enforcement.

-20-



standard recommended by the IACP report is that: "An officer may
use deadly force to effect the capture or prevent the escape of a
suspect whose freedom is reasonably believed to represent an
imminent threat of grave bodily harm or death to the officer or
other person(s)." Matulia, supra, at 164 (emphasis in original).
Similarly, the Standards for Law Enforcement Agencies (August
1983) of the Commission on Accreditation for Law Enforcement

20/Agencies provides "that an officer may use deadly force 
only when the officer reasonably believes that the action is in 
defense of human life, including the officer's own life, or in 
defense of any person in immediate danger of serious physical 
injury." Standard 1.3.2.

In sum, the clear position of the organized, professional 
police community —  as reflected by its standards, written 
policies, and pratices —  refutes the state's argument that 
effective law enforcement will be hampered without the authority 
to shoot nondangerous fleeing felony suspects.

III. THE JUDGMENT BELOW SHOULD BE AFFIRMED BECAUSE THE 
MEMPHIS POLICY AND CUSTOM IS ONE OF LIBERAL USE OF 
DEADLY FORCE THAT RESULTS IN THE EXCESSIVE AND UN­
NECESSARY USE OF SUCH FORCE TO STOP NONDANGEROUS,
FLEEING FELONY SUSPECTS______ _____________________
Although the court of appeals did not reach the question

of the constitutionality of Memphis's policy ana customs regarding
the use of deadly force, it was familiar with the exceptional
record of Memphis police with regard to the shooting of fleeing

20/ These standards were "prepared by the four major law 
enforcement executive membership associations, tne ... IACP,
National Organization of Black Law Enforcement Executives 
(NOBLE); National Sherrifs' Association (NSa ); and the Police 
Executive Branch Forum (PERF)." Iji. at iii.

-21-



suspects, particularly blacks. See Bayes v. Memphis Police Dept.,
571 F .2d 357 (6th Cir. 1978); Wiley v. Memphis Police Dept., 548
F .2d 1247 (6th Cir. 1977); Qualls v. Parish, 534 F .2d 690 (6th
Cir. 1976); Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972); see
also Cunningham v. Ellington, 323 F. Supp. 1072 (W.D. Tenn.
1971) (three judge court); McKenna v. City of Memphis, 544 F.
Supp. 415 (W.D. Tenn. 1982) (shooting of brother officer in

21/attempt to stop fleeing misdemeanant). The excessiveness of 
the Memphis policies and customs in violation of the fourth amendment 
and the due process clause is an alternative ground for affirming 
the judgment below. Rule 10.5, Rules of the Supreme Court of 
the United States.

Even assuming the appropriateness of using one's revolver
to arrest a suspect, Memphis's policies, practices, and customs
go oeyond what is necessary. Because of the district court's
decision not to allow further hearings on remand, the record
on the question of the Memphis policy or custom is a hybrid.
It consists of the evidence adduced at the original trial and

_22/the offer of proof tendered on remand. But despite the 
nature of the record and the lack of findings below, it is 
clear that Memphis's use of deadly force to stop nondangerous 
suspects is uniquely excessive in its execution.

21/ As indicated above, supra n.17 and text accompanying 
nn.17-18, the percentage of firearm discharges against non­
dangerous, fleeing suspects as compared to all firearm dis­
charges by Memphis police is amongst the highest in the nation. 
It is also noteworthy that Memphis accounts for about 30% of all 
the reported federal cases on this issue in the last 10 years.
22/ Organized in fifteen parts, the offer of proof includes 
affidavits of expert witnesses who would have been called to 
testify, App. 765-97; excerpts from prior federal cases against 
the Memphis Police Department that illuminate Memphis's actual 
policies and customs regarding the use of deadly force, App. 
798-1019, 1409-57, 1460-69, 1477-1601, ano 1614-1891; excerpts 
from the report of the Tennessee Advisory Committee to the

-22-



At trial, plaintiff called CaptairyColetta, who was 
responsible for recruit training and the ammunition policies 
of the Memphis Police Department. He testified that the 
Memphis police have always used a .38 caliber Smith and Wesson. 
In the years immediately preceding the Garner shooting, Memphis 
twice upgraded its ammunition to bullets with greater velocity, 
accuracy, and predicted wounding power. App. 413-16, 425- 
27, and 447. The bullet that was finally selected was the 
125 grain, semi-jacketed, hollow-point Remington. Both 
Coletta and the Shelby County medical examiner testified 
that this bullet is a "dum-dum" bullet banned in international 
use by the Hague Convention of 1899 because it is designed 
to produce more grievous wounds. App. 487-88 and 572. This 
is the bullet that killed young Garner.

Coletta also testified that Memphis recruits are
taught to aim at the torso, or "center mass," where vital
organs are more likely to be hit. App. 357-58. See also

23/App. 1597 and 1807-08. Together with the use of "dum-dum" 
bullets, this creates a far greater risk that the resulting 
wound will be fatal. Moreover, the interplay of these two

22/ continued
U.S. Commission on Civil Rights, which was based on hearings 
on civil rights abuses by the Memphis Police Department,
App. 1050-58; the deadly force policies of 44 major municipali­
ties, App. 1108-1368; the training materials for the New York 
Police Department, App. 1369-1408; and an excerpt from an 
LEAA publication on deadly force that details police training 
procedures used in other cities but not in Memphis. App. 
1602-13.
23/ Captain Coletta testified that the reason for teaching 
recruits to aim for the torso was not related to police safety; 
it did not create a better chance of neutralizing a dangerous 
suspect. App. 353-57. Rather, it is taught solely because the 
torso presents a greater target and thus reduces the chances of 
missing. App. 357-58.

-23-



factors creates an indelible impression upon the Memphis police 
officer that the policy of the department is one encourag-

24/ing use of one's revolver. indeed, in a prior case, the district 
court found that Memphis police officers "were trained whenever 
they use their firearms to 'shoot to kill.'" Wiley v. Memphis 
Police Dept., 548 F .2d at 1250.

Other policies, practices, and customs of the Memphis Police 
Department also encourage the quick resort to the use of deadly 
force without a proper effort to exhaust other alternatives. 
Captain Coletta testified that the department used the film 
"Shoot - Don't Shoot," which presents only armed fleeing felons
in its situational illustrations of the fleeing felon rule, App.

25/329-32; that there was no training in alternatives that 
should be exhausted before resorting to deadly force to stop 
unarmed fleeing felony suspects, App. 340 ; that i_he department s

24/ Chief William R. Bracey would have testified that "a 
definite message was transmitted when [Memphis] reiterated 
its policy of shooting 'to stop' and at the same time intro­
duced the use of dum-dum bullets. The message transmitted 
to line officers would seem to suggest the department s support 
of firearm use." App. 773.

At the time of his affidavit, William R. Bracey was Chief 
of Patrol of the hew York Police Department with supervisory 
authority over all 17,500 uniformed personnel of the New York 
Police Department. He would also have testified: that guidelines 
and committed enforcement of those guidelines by the police 
hierarchy will lead to reductions in the use of unnecessary 
deadly force; that New York has reduced firearms discharges by 
50% by these means; that the result of this reduction has been 
the increased safety of New York Police Department officers with 
fewer assaults on officers and fewer deaths; that law enforcement 
has been unhampered; that training, including training in alterna­
tives to minimize the need for use of deadly force, and discipline 
are the keys to reducing unnecessary deadly force; that shooting 
unarmed fleeing felons is related to the officer's subjective 
notions of punishment; and that the Memphis policies of shooting 
fleeing property crime suspects, use of "dum-dum" bullets, and 
training and discipline were all deficient. App. 765—78.
25/ Tne heavy reliance on the"Shoot/Don't Shoot" film encourages 
"the use firearms because, as respondent-appellee's expert Chief 
Bracey would have testified, it has a negative effect on an 
inexperienced recruit, making him jumpy and more likely to 
employ deadly force. App. 774.

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firearms manual details firearms techniques, but not techniques
to avoid the need for the use of weapons, App. 344-45; ana that
tne use of deadly force to stop fleeing felony suspects is left
to the individual officer's discretion: recruits are simply told
that tney must live with themselves if they kill a person. App.
326 and 345. Accord App. 195-96, 901, 956, and 1796.

It is particularly significant that there is no training on
when to use deadly force. This lack of guidance operates m  tandem
with a policy —  evidenced by pronouncements of the mayor, App.
1632 and 1825-28, and the miserable failure of the Memphis Police

26/
Department disciplinary procedures, App. 547 and 1858, 
not to review and control firearm discharges. As a result,
Memphis officers get the clear message that they can deadly force 
without guidelines and with impunity. The proximate result is 
the excessive use of deadly force in situations when it is not
necessary in order to apprehend the subject.

This case provides an adequate illustration: The police
experts testified that Hymon should have attempted to apprehend
young Garner, who was only 30 to 40 feet away, rather than

27/solely on his gun. A* 8. Other illustrations 
abound. In McKenna, the officer who hit his fellow officer was 
shooting at a fleeing misdemeanant; he was a known shooter but 
had never been disciplined or retrained. 544 F. Supp. at 417.

26/ No Memphis police officer had ever been disciplined for the 
Hie of his gun. App. 547 and 1858. The civili? " ^ lal^ r^ ° Ce" dures are designed to deter complaints. App. 1050-58. First, 
there is a rule that all complainants must take a polygraph 
while no officer is ever required to. Second, the procedures 
require that the officer against whom a charge is made must 
immeaiately be notified of the complainant's name ana aadress. 
App. 1050-58.
27/ The only witness to testify that the officer was justified 
In using his gun was Captain Coletta, who had both trained Hymon 
and sat on the review board that condoned the snooting. App. 506 
507-09. Even so, his opinion was based on an assumption not sup 
ported by the facts: that Hymon was "physically barrea from the
area by a fence." App. 532.

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In another instance, Memphis officers shot and killed a fleeing 
olack teenager who had committed car theft, even though his 
accomplice was already in custody and could have provided 
identification. The officer who shot never considered any 
alternatives, not even giving chase. App. 844-45.

There can be little doubt that myriad Memphis polices and 
customs are implicated as the cause of the shooting death of 
respondent-appellee's son. "In this case, City officials did set 
the policies involved ... training and supervising the police 
force...," Leite v. City of Providence, 463 F. Supp. 585, 589 
(D. R.I. 1978), exposing the city to liability under Monell.
Young Garner was shot pursuant to that liberal use of deadly 
force policy and custom "which allows an officer to kill a flee­
ing felon rather than run the risk of allowing him to escape ap­
prehension." Garner, 600 F. 2d at 54; A. 16. Here, the officer 
did no more than follow that policy, as he "was taught." I_d. at 
53; A. 16. The judgment below should be affirmed on this basis 
alone.

IV. MEMPHIS'S POLICY AUTHORIZING THE DISCRETIONARY
SHOOTING OF NONDANGEROUS, FLEEING PROPERTY CRIME 
SUSPECTS VIOLATES THE EQUAL PROTECTION CLAUSE 
BECAUSE IT IS RACIALLY DISCRIMINATORY_____________
The Memphis policy runs afoul of the Constitution in 

another fundamental way not discussed by the court of appeals: It
is a policy that discriminates on the basis of race. The materials 
contained in the offer of proof betray a policy "in actual opera­
tion, and the facts shown establish an administration ... with an 
evil eye and an unequal hand" in violation of the fourteenth amendment. 
Yick Wo v. Hopkins, 118 U.S. at 373-74; see also Furman v. Georgia,
408 U.S. 238, 389 n.12 (1972) (Burger, C. J., dissenting).

The offer of proof contains the raw data concerning all 
arrests in Memphis between 1963 and 1974, App. 1409-57 and

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1767-68; data on all shootings of fleeing property crime suspects 
between 1969 and 1974, App. 1460-69; data on all those killed by
Memphis police officers between 1969 and 1976, App. 1764-67 and

28/1071; prior analysis of this data by a statistician, App. 
1769-77, and his testimony at an earlier trial regarding this anal­
ysis, App. 1559-62 and 1589-92; historical data regarding race 
discrimination by the Memphis Police Department from 1874 through 
the mid-seventies, including the deposition testimony of the mayor 
and police director supporting this conclusion, App. 908-910, 
928-32, 972-74, 1539-40, 1571-75, 1646-56, 1677-78, 1690, and
1828-29; and the affidavit of plaintiff's expert, Dr. James J.

29/Fyfe, which analyzed in detail the arrest and shooting data 
contained in the offer of proof. App. 787-97.

On the use of deadly force, the data reveal thac there are 
significant disparities based on the race of the shooting victim/ 
suspect and that virtually all of this disparity occurs as the 
result of the Memphis policy that allows officers to exercise 
their discretion to shoot fleeing property crime suspects. Be­
tween 1969 and 1976, blacks constituted 70.6% of those arrested 
tor property crimes in Memphis but 88.4% of the property crime 
suspects shot at by the Memphis police. In contrast, the percent­
age of black violent crime suspects shot at by Memphis police 
was closely proportionate to their percentage in the violent crime 
arrest population: 85.4% ana 83.1%, respectively. App. 1773.

28/ Ail of the foregoing data was collected and provided by 
the Memphis Police Department as defendant in Wiley v. Memphis 
Police Dept., Civ. Action No. C-73-8 (W.D. Tenn. June 30,
1975), aft'd, 548 F .2d 1247 (6th Cir. 1977).
29/ Dr. Fyfe is a former New York Police Department lieutenant 
and training officer. He designed a firearms trainings program 
tor the New YorK Police Department in which over 20,000 officers 
have participated. His doctoral thesis concerned the use of 
deadly force by New York Police Department officers. He is an 
associate professor at The American University in Washington, 
D.C., and has served as a consultant on the deadly force issue 
for the United States Department of Justice ana the Civil Rights 
Commission. App. 788-89. He also teaches courses at the F.B.I. 
National Academy at Quantico, Va.

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con-Or. Fyfe reviewed this cata and concluded that 
trolling for differential racial representation in the arrest 
population, black property crime suspects were more than twice as 
liKely to be shot at than whites (4.33 per 1000 black property 
crime arrests; 1.81 per 1000 property crime arrests), four times 
more likely to be wounded (.586 per 1000 blacks; .1113 per 1000 
whites), and 40% more likely to be killed (.63 per 1000 blacks,
.45 per 1000 whites). App. 792.

Comparison of shootings by Memphis Police officers while
controlling for race of the shooting victim and the nature of the
incident provided similarly striking data. Dr. ryfe s analysis
of the shooting incidents between 1969 and 1976 described by the
Memphis Police Department to the Civil Rights Commission showed a
dramatic disparity between the situations in which whites were
killed and those in whicn blacks were killed. Of the blacks shot,
50% were unarmed and nonassaultive, 23.1% assaultive but not
armed with a gun, 26.9% assaultive and armed with a gun. Of the
whites shot, only one was non—assaultive (12.5%), five (62.5%)
were armed with a gun, and the remaining two (25%) were assaultive

Wbut not armed with a gun.
Based on this data, Dr. Fyfe concluded that, during the 

period in question, Memphis police were far more likely to shoot 
blacks than whites in non—threatening circumstances and that the 
great disparity in blacks shot by Memphis police officers is 
largely accounted for by the policy allowing the discretionary 
shooting of non—dangerous fleeing felony suspects. Between 1969 
and 1976, Memphis police killed 2.6 unarmed, non-assaultive 
blacks for each armed, assaultive white. App. 793-94.

30/ Dr. Fyfe noted that: "These are certainly dramatic differ­
ences, but no measure of their significance is possible ... 
because the only statistically significant category of whites 
killed is those armed with guns." App. 794.

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Plaintiff proffered this evidence having previously- 
requested both additional discovery and a hearing on these 
factual questions. The district court, in its post-reconsidera­
tion order, A. 31, rejected Dr. Fyfe's conclusions on the basis
of several unsupportable considerations. It noted Dr. Fyfe's

. , 31/"bias," A. 34, without ever having seen him testify.—  it 
attacked Dr. Fyfe's conclusions because, it claimed, he failed to 
"specify the actual number of blacks arrested and/or convicted 
for alleged 'property crimes' as compared to whites during this 
period." A. 32. But, as discussed above, Dr. Fyfe's analysis 
specifically "controls for differential involvement among the 
races in property crime...," App. 7y2; indeed, the data on which 
Dr. Fyfe relied was included in the offer of proof and provided 
trie actual number of both white and black property crime arrests 
together with the raw data of ail arrests. App. 1409-57 and 
1767-68. The district court questioned the delineation of 
"'property crime' in the Fyfe definition." A. 32. But the 
delineation between property crimes and violent crimes that Dr. 
Fyfe employed was that made by the Memphis Police Department and 
included witn the arrest statistics. App. 1559 and 1767-68.
In numerous similar ways, the district court misapprehended 32/

31/ The district court's "bias" finding was based on Dr. 
Fyfe's disagreement with the Memphis policy allowing the use 
of deadly force against nondangerous suspects. This "bias," 
however, is the official policy of the F.B.l. and numerous 
metropolitan police departments as disparate as New York, 
Atlanta, and Charlotte, North Carolina. See App. 1113, 120U, 
1293, and 1869.
32/ For example, in questioning Dr. Fyfe's observation that 
the incidence of use of deadly force in property crime arrests 
in Memphis far exceeded that in New York, the district court 
noted that: "Professor Fyfe admitted his comparison was not 
'precise' in respect to 'property crimes' comparison." A. 32 
n. 1. But Dr. Fyfe accounted for this imprecision in a way 
that favored Memphis. His "admission" was that:

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Moreover, the district court failed to consider that the 
historical background of the Memphis Police Department corrobo­
rates the inference of discrimination that arises from the
statistics. Arlington Heights v. Metropolitan Housing Corp.,
429 U.S. 252, 265-67 (1977). The department's history is one of

3 3/entrenched racism m  employment, promotion, and law enforcement.—
The department was repeatedly the agent of enforcement of the
segregation laws in the 60's, App. 1539-40, engaging in racial
abuse and brutality during the sanitation strike in 1968. App.
1571-75. A 1970 NAACP Ad Hoc Committee Report concluded that:
"the most common form of address by a Memphis policeman to a
black person appears to be 'nigger.'" App. 1671. And, it was
acknowledged by Mayor Chandler that, as late as 1972:

The black community, speaking generally and in a broad sense, 
perceives the police department as having consistently 
brutalized them, almost their enemy instead of their 
friend.... [Tjalking about in 1972, what you say is 
absolutely true and I would say almost across the board.

32/ continued
More than half (50.7 percent) of the police shootings 

in Memphis during 1969-1974 involved shooting at property 
crime suspects. The comparable percentage in 1971-1976 
in hew York was no more than 11.8 percent. This comparison 
is not precise because the New York City figure includes 
all shootings to "prevent or terminate crimes." Thus, 
it includes shootings precipitated by both property crimes 
and crimes of violence. My estimate of tiie percentage of 
New York City police shootings which involved property 
crime suspects only is four percent.

App. 791.
Similarly, in arguing that Dr. Fyfe failed to control 

for disparate racial involvement in the underlying felonies, 
the district court alleged that Dr. Fyfe "concedes elsewhere 
that there is also 'differential racial involvement in police 
shootings.'" A. 32. What Dr. Fyfe said, however, is that:
"In New York City, differential racial involvement in police 
shootings also exists, but [unlike Memphis] it is almost 
totally accounted for by differential racial involvement in 
the types of activities likely to precipitate shootings."
App. 792.
33/ As long ago as 1874, a "Resolution asking Police Board to 
put 20 colored men on force, lost by vote 16-3" before the City 
Council. App. 1646.

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App. 1828-29; accord App. 931-32 (police director testified that: 
"There is a basis in fact for the distrust of the black community 
___  Q. And 1974? A. Absolutely.").

In 1974, when young Garner was shot, blacks made up only
10% of the force and only 3.1% of the officers over lieutenant
(there were no blacks higher than captain) in a city tnat was

34/almost 40% black. This inevitably led to a situation where 
even the black officers, such as Hymon, were disposed to follow 
the ethos of the department. See Castaneda v. Partida, 430 U.S.
482, 499 (1977). The Memphis police director testified in 1979 
that he "had equal problems with the black officers in terms of 
the black officers trying to out red-neck the white officers....
I mean that's literally [sic] what we had." App. 975.

The discretionary nature of the authority to shoot allowed 
Memphis police is another factor that confirms the racially dis­
criminatory nature cf the disparate impact of the Memphis policy 
regarding use of deadly force against nondangerous fleeing property 
crime suspects. The consignment to the officer s discretion is a 
ready mechanism for discrimination." Rowe v. General Motors Corp., 
457 P. 2d 34«, 359 (5th Cir. 1 972) (Title VII). Cf. Avery v. State 
of Georgia, 345 U.S. 559, 562 (1953) (discrimination in jury selec­
tion). "[A] selection procedure that is susceptible of abuse or 
is not racially neutral supports the presumption of discrimination 
raised by the statistical showing." Castaneda v. Partida, 430 U.S. 
at 494 (citing Washington v. Davis, 426 U.S. 224, 241 (1976)).

In conclusion, Memphis's policy allowing the shooting of non-

34/ Community Relations Service, United States Department of 
Justice, Memphis Police and Minority Community: A Critique at 7
(May 1974), App. 1690. See also App. 910 & 974. That same year, an 
employment discrimination lawsuit brought by the Department of 
Justice was settled. Tne consent decree was designed to increase 
the hiring and promotion of black officers. United States v. City 
of Memphis, Civ. Action. C-74-286 (W.D. Term. 1974).

-31-



. . 11/dangerous fleeing property crime suspects is discriminatory.
The judgment below should be affirmed on this ground alone. The 
totally discretionary nature of the authority to shoot given 
Memphis police officers, resulting in disporportionate numbers of 
nonthreatening blacks being shot, is at war with the basic notion 
of equal protection of the laws. "For, the very idea that one 
man may be compelled to hold his life ... at the mere will of 
another, seems to be intolerable in any country where freedom 
prevails...." Yick Wo, 118 U.S. at 370.

CONCLUSION
For the foregoing reasons, the motion to affirm or dismiss 

in No. 83-1C35 should be granted and the petition for a writ of 
certiorari in No. 83-1070 should be denied.

Respectfully submitted,

STEVEN L. WINTER*
95 Hudson Street
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

Attorneys for Respondent-Appellee
* Counsel of Record

35/ At the very least, the proffer established a prima facie case 
of discrimination shifting the burden to the city to rebut. 
Castaneda, 430 U.S. at 443-96. The district court's misunderstand­
ings, suppositions, and attacks on the "bias" of the proffered 
expert testimony cannot suffice to fill this "evidentiary gap." 
la. at 499.

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