Tennessee v. Garner Brief for Appellee-Respondent

Public Court Documents
October 1, 1984

Tennessee v. Garner Brief for Appellee-Respondent preview

Memphis Police Department: City of Memphis, Tennessee v. Garner consolidated with this case. Cleamtee Garner in his capacity as father and next of kin of Edward Eugene Garner, a deceased minor. Date is approximate.

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  • Brief Collection, LDF Court Filings. Tennessee v. Garner Brief for Appellee-Respondent, 1984. 5c66aed3-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/20e8cf45-d97e-42d1-9307-5777aa130cab/tennessee-v-garner-brief-for-appellee-respondent. Accessed April 27, 2025.

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    Nos. 83-1035 
83-1070

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1984

THE STATE OF TENNESSEE 
Appellant,

CLEAMTEE GARNER, as father and next 
of kin of Edward Eugene Garner, a 
deceased minor,

Appellee;

MEMPHIS POLICE DEPARTMENT; CITY OF 
MEMPHIS, TENNESSEE,

Petitioners,

CLEAMTEE GARNER, et a l .,
Respondent.

On Appeal from the United States 
Court of Appeals

for the Sixth Circuit in No. 83-1035

On” Wr i t of Certiorari to the United 
States Court of Appeals 

for the Sixth Circuit in No. 83-1070

8RIEF FOR APPELLEE-RESPONDENT

0. LeVONNE CHAMBERS
STEVEN L. WINTER *

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

WALTER L. BAILEY, OR.
Suite 901, Tenoke Building 
161 Oefferson Avenue 
Memphis, Tennessee 33103 
(901) 521-1560

Attorney for Appellee-Respondent

Counsel of Record



- 1 -

q u e s t i o n s  p r e s e n t e d .

Does the killing of a non- 

dangerous, fleeing property 

crime suspect whom the officer 

reasonably believes to be 

unarmed violate the fourth 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 non-

dangerous, fleeing felony

suspects violate the fourth and 

fourteenth amendments?

Is the Memphis policy authoriz­

ing the discretionary shooting 

Q f nondangerous, fleeing

property crime suspects racially 

discriminatory?



- ii -

TARt F OF CONTENTS

Z * s i

QUESTIONS p r e s e n t e d ...................

TABLE OF AUTHORITIES.................. lv

STATEMENT OF THE CASE.................

A. The Facts of the 1

B. The Proceedings 3elow..... 1 0

C. The Memphis Policy: 
Liberal Use of Deadly 1 3

D. The Memphis Custom: 21Racial Discrimination....

SUMMARY OF ARGUMENT 

ARGUMENT............
THE COURT OF APPEALS COR­
RECTLY BALANCED THE NATURE 
OF THE INTRUSION AGAINST THE 
STATE'S INTERESTS IN LAW EN­
FORCEMENT ANO HELD THAT THE 
KILLING OF AN UNARMED, NON­
VIOLENT, FLEEING PROPERTY 
CRIME SUSPECT VIOLATES THE 
CONSTITUTION..................

A. The Fourth Amendment Re­
quires a Balancing of the 
Interests..................



Page

- iii

(1) The common law basis 
of the doctrine no 
longer supports the 
reasonableness of 
shooting all fleeing 
felons................ 44

(2) The Tennessee Sta­
tute' s disregard 
of the gravity of 
the undelying offense 
is a proper considers 
tion under the fourth 
amendment.............

g. The Deprivation of Life 
Must be Justified by 
Countervailing State 
Interests....................

C.\ The Prohibition Against 
Punishment without Due 
Process Also Requires 
Consideration of State 
Interests Asserted in 
Justi f ication............. .

D. A Balancing of the
Interests Demonstrates 
that the Fleeing Felon 
Doctrine is Unconstitu­
tional ...................

(1 ) Apprehension of the
68

(2 ) The crime prevention 
interests............. 72

(3) The safety interests. 75



- IV -

II.

Ill

(4 ) Effective lax enforce­
ment ...................

THE JUDGMENT Of THE COURT OF 
APPEALS SHOULD BE AFFIRMED 
BECAUSE THE MEMPHIS POLICY 
AND CUSTOM IS ONE OF LIBERAL 
USE OF DEADLY FORCE THAT RE­
SULTS IN THE EXCESSIVE AND 
UNNECESSARY USE OF SUCH FORCE 
TO STOP NONOANGEROUS, FLEEING 
FELONY SUSPECTS..................

MEMPHIS'S POLICY AUTHORIZING 
THE DISCRETIONARY SHOOTING OF 
NONOANGEROUS, FLEEING PROPERTY 
CRIME SUSPECTS VIOLATES THE 
FOURTH AMENDMENT AND THE_EQUAL 
PROTECTION CLAUSE B£CrAU|^_^, 
INVITES AND RESULTS IN RACIAL 
DISCRIMINATION..................

81

90

96

CONCLUSION 104



- IV

TABLES OF AUTHORITIES

Cases --
Addington v. Texas, 441 U.S. 418

. ....................................... 8 0 ’5°
Arlington Heights ». Hetropolitan

Housing Corp., 429 U.S. 252 
( 1977)................................

Ayler v. Hopper, 532 F. Supp. 198
(M.D. Ala. ..........................  54

Baker v. McCollan, 443 U.S. 137
(1979)................................

Bare foot v. Estelle, u • s • --- ’ p5
77 L . Ed . 2d 1 090 (lT3T)............  35

Beck v. Ohio, 379 U.S. 89 (1964).... 103

Beech v. Melancon, 465 F.2d 425
(6th Cir. 1972).....................

Bell v. Wolfish, 441 U.S. 520
( 1 979 ) ................................................ 5 5 , 2 6 , 6 4

3ivens v. Six Unknown Agents,
403 U.S. 383 ( 1 971 ).............  5 1 > 0 7 » 8 3

Brandon v. Holt, No. 83-1622
(pending)............................  2 Q ’^

Brinegar v. United States, 333
U.S. 360 . . . .......................

Brown v. Texas, 443 U.S. 47
( 1 979 )..............................  1 0 2, i U 2

Byrd v. Brishke, 466 F.2d 6
(7th Cir. 1 972).....................

Page



Cases
Pa^e

Carter v. Carlson, 447 F . 2d 358 
(O.C. Cir. 1971), rev’d.on 
other arounds, 409 U . S . 418 
(19751 ......T ................

Castaneda v. Partida, 430 U.S. 
482 (1977)....................

Cleveland Board of Edu,;3tion y 
laFleur, 414 U.S. 632 (1974)

Coker v. Georgia,
( 1 977)........

433 U.S. 584

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

Cupp v. Murphy, 412 U.S. 29
( 1973 ) • .........................

Oalia v. United States, 441
U.S. 238 ( 1 979)...............

Davis v. Mississippi, 394 U.S. 
721 ( 1 969 ).....................

Delaware v. Prouse, 440 U.S.
648 ( 1979).....................

Donovan v. Dewey, 452 U.S. 594 
(1981...........................

Dunaway v. New York, 442 U.S.
200 ( 1 979 )....................

Eddings v. Oklahoma, 455 U.S.
1 04 ( 1932)....................

Emmund v. Florida, 458 U.S. 762 
(1932).........................

42

1 0 0 , 1 0 1

53

46,74,75

91

37

33

37,41-42

71,103

103

37

62

. 75,81



Cases
Fa^e

Florida v. Royer, 460 U.S. 
, 75 L.Ed.2d 229 . . . 39-40,41,71

Furman v. Georgia, 408 U.S. 238
......... 57,97

Garner v. Memphis Police 
Department, 600 F.2d 52 ...... Passim(6th Cir. I 7 / / j • • ■

Garner v. Memphis Police
Department, 710 F.2d 240
(. 6 tn . l u . ...................

Gerstein v. Pugh, 420 U.S. 89

Giant Foods, Inc. v. Scherry, 
51 M d . App. 586 544 A .2d 86

Gregg v. Georgia, 428 U.S. 253 . 46,74

Gregory v. Thompson, 500 F .2d
59 (9th Cir . 1974)................ 42

Haves v. Memphis Police Dept.,
' 571 F .2d 3 57 ( 6th Cir. 1 978 )--- 91

Herrera v. Valentine, 653 F.2d 421 220 ( 8th cir. i y o i .............

Howell v. Cataldi, 464 F.2d 111 42(3rd Cir. \y j c j ...... ........

Ingraham v. Wright, 430 U.S. 651 55



V 11

In re Kinship, 397 U.S. 358
(1970)....................

Cases

Jacobs v. City of 'Wichita, 531 
F. Supp. 129 (D. Kan. 1982)

Jenkins v. Averett, 424 F.2d 
1228 ( 4th Cir . 1970).....

Johnson v„ ,u „  . .  S l i c k ,  481 . 2d 1028
(2d Cir.), cert. denied, 414 
U.S. 1 033 (T5TT).............

Johnson v. Zerbst, 304 U.S. 458
( 1 938).........................

Jones v. Marshall, 528 F.2d 132 
(2d Cir. 1975)...............

88

Page

54

41 , 42-4 3

42,54

53

62

Kennedy v. Mendoza-Martinez, 
372 U.S. 144 ( 1 963)...... 55,56,64-65,75

Ker v. California, 374 U.S. 23 
(1963)........................

landrigan v. City of Warwick, 
628 F . 2d 736 (1st Cir. 1 980 )

Leite v . 
463 F.

City of Providence, 
Supp. 535 ( Q . R . I • 1 978 ) . . .

Lewis v. State, 393 So.2d 432 
(Fla. 1981)....................

Mattis v. Schnarr, 547 F.2d 1007 
(3th Cir. 1 976 ), vacated o_n 
case and controversy qrounos 

As nc r o r t v . Mattis,
1 71 ( 1 977)...........

95

79

sub nom . 62



Cases
Page

May v. Anderson, 345 U.S. 528 
( 1953).........................

McOonald v. United States, 335 
U.S. 451 .....................

McKenna v. 
F. Supp

City of Memphis, 
415 (W.D. Tenn.

544
1932)..•

Michigan v. Summers, 452 U.S. 692 
(19 31)....................... ....

Monel 1 v. Department .
Services, 436 U.S. 653 (1978)----

Morgan v. Labiak, 363 F.2d 333 
(1 Qth Cir. 1966)...............

Payton v. New York, 445 U.S. 573 
( 1980)...........................

53

50

95

40

95

42

43,36

Pruitt v. City of Montgomery, 
Civ. Act. No. 33-T-9Q3-N 
(M.D. Ala. June 12 , 1 934) .

Qualls v. Parish, 534 F.2d 690
(6th Cir. 1 9 76).....................

Roe v. Wade, 410 U.S. 113 (1973)----

Rowe
F.

v. General Motors Corp. 
2d 348 ( 5th Cir. 1972) .

457

39

62,91

53,21

100

Schall v. Martin, U.S. _
31 L .E d .2d 201 TT ? 3 4 ) ----

Schmerber v. California, 334 
U.S. 757 ( 1 966)...........

3 5 

33,42



- IX -

Cases
Pa£e

Sc r ews v . United States, 325 53,57
U •S• 91

Sibron v. New York, 392 U.S. 40 85( 1 968) .
Smith v. Phillips, 455 U.S. 209 92

(. 1 7 04 J .

Stanley v,. Illinois, 405 U.S. 645 53
(19 7Z)

Taylor v . Collins, 574 F. Supp.- ~ u:. u 1 <3 Q *<> ......... . 481554 (. t . U . PUtn. i ' '......

Te fft v . 
(6th C

Seward, 689 F .2d 637 42ir• i7 j • ..............

Terry v . 
U.S. 1

Oh io, 392
( 1 968 )..... 36,37,38,40,41 ,85,103

United States v. Calandra, 414 
U. S. 3 38 ( 1 ......................

United States v. City of Memphis, 
Civ. Action C-7 4-236 (W.D. 
Tenn . 1974).....................

38

31

United States v. Clark , 31 Fed . ^
710 (C.C.E.D. Mich. 1 887)........  59 60

United States v. New York Tel' 
phone, 434 U.S. 159 \1977) 92

United States v. Place,
U.S. . 77 C.Ed.

TaT 110 (TTJ3 .................  37 , 38,42-41

United States v. Stokes, 506 
F .2d 771 (5th Cir . 1 975 ) . 42



X -

Cases
Page

United States v. Villamonte- 
Marquez, U.S. _ 41L ,Ed . 2 d 2 Z ................

United States v. Villarin
553 F.2d 723 (1st. Cir. 1977)... 42

Warden v. Hayden, 387 U.S. 294 39

Washington v. Davis, 426 U.S. .97,100

Welsh v. Wisconsin, U.S.
, BO L .E d .2d 732 ( 1 984)....... . 52,53

Werner v. Hartfelder, 113 
Mich. App. 747, 318 N.W. 832d 825 ( 1 9 a z ;...............

Wiley v. Memphis Police 
Dept. , Civ. Action No .
C-73-8 (W.D. Tenn. Oune 
3a. 1 975) . aff'd 548 
F . 2d 1247 (TtrTTir.
1 977)........... x...........  2Z,6Z, 63,33,91

Wilkes v. Wood, 10 Howell, St. 1 0 2Tr. 1153 ....................

Williams v. kelly, 624 F.2d , . . 52,54695 ( 5 th C i r . i .................

Woodson v. North Carolina,
<12 9 U.S. 230 ( 1 976)............ 57

Yick Wo v. Hopkins, 118 
U.S. 356 ( 1 836 ) ..... 53,96,97,104



- xl -

rnnatitutiona1 Provisions and Statutes:
Tw   Passim

U.S. Can3 t. amend. ...............
. yrii   passimU.S. Const, amend, ............

42 U.S.C. § ............................
Memphis City Code § ..................  60

Memphis City Code § ..................

Pub. Stats, of Tenn. §§ (Supp ^
1 358-1 871 ............................

Tennessee Code Ann. § 37-102
( 1 977)...............................

Tennessee Code Ann. § 39-3-401 79
(1973)...............................

Tennessee Code Ann. § 40-808 ^
(1975)...............................

Page

Other Authorities:

A . L . I. Model Penal Code Vo1 . II

BlacWstone, COMMENTARIES

PI urnbera . The Use of Deadly

The Imoact or Individuals,
Comm unities, and Race 1h h .u .
Dissertation ,
Sch. of Crim.

S.U.N.Y., Albany, 
Justice Dec. 14,



xii

3ohlen 4 Schulman, Arrest With 
and Without a Warrant, 75 
U.^a.l.fcev . 4d5 i i**7).....

Page

58

Comment, Deadly Force to 
Arreat: I n h e r i n g  Con
stitutional Review, 1 1  
Harv.Civ. k. lliv . L i b . 
L.Rev. 361 ( 1974)...... 44-45,46,58

Conklin and Bittner, Burglary 
in a Suburb, 11 Criminology
2 aa n r n r r ....................

W. A. Geller 4 K . 3. Karales, 
Solit Second Decisions:
^hflot l'no s or and by unicago 
Police (Chicago Law £n foree- 
ment study Group) (1981). •••

Holmes, The Paths of The Law, 
1 0 Harv . i~. Pev. 45/
( 1 897).......................

C. Kenner and 3. Anderson,
THE GUN IN AMERICA (1975).

48-49

47

"Magnum Farce, Massive Law­
suits (More and Mors Com­
munities Urge Police to 
Show Restraint),” The New 
York Times, April 3, 1984,
p. 2 E, c o l . 4 .............

Matulia, A Balance of Forces: 
A Report of the Interna­
tional Association oT̂  
Chiefs or Police (Nat i o n a i 
Institute of11 Justice 1 982 )

66

85 , 86-87



Page

9 A.L.I. PROCEEDINGS 186-87
M931) quoted in 3. Michael 
4 H. Wechsler, CRIMINAL LAW 
AND ITS ADMINISTRATION, 80-82 
n. 3 ................................

M. Myer, Police Show i n g s  at Minori- 
“ The jase o f Los *nqele_s, 

72 Annals of Amer. Acad, or Pol. 
4 Scl. 98 ( 1980).................

Note, The Use of Deadly ^ r c e
in Arizona by Police Officers, 
1972 L. A Sac. Ilrder adi--------

61

92

58

Nate, Legalized Murder of a 
F 1 aeina Felon , 15 Va . L.Rev. iai rrr?9)...........

R. Perkins, CRIMINAL LAW (2d ed . 
1969)............................

58

58

T. Reppetto, RESIDENTIAL CRIME
( 1 ............................. 79,80,31

Sherman, Execution Without. 
Trial: Police Homociae and
t-he Constitution , 33 Vand.
L. Rev . 71 H  9'73)........ 46,47,59,61

N. Shovell, BURGLARY AS AN 
OCCUPATION (1971)........

Staff Report to the Michigan 
2 ivil Rights Commission 
1, Ma y 18,1981 ........... . • 87



- XIV

T. Taylor, TWO STUDIES IN 
CONSTITUTIONAL INTERPRE- 45TATION ....................

I. Walker 4 N. Okihiro, 
8URGLARY THE VICTIM ... 79,30AND THE PUBLIC (. i 7 / a ............

3.Q. Wil3on, THINKING ABOUT 73CRIME U ° 7 3 J  .................

Z L. Wroth 4 3. Zobel (eds.) 
LEGAL PAPERS OF JOHN ADAMS

1 0 2



flBTFF FOR RESPQNOENT-APPELLEE

STATEMENT OF THE CASE,

Tha Tarts of the Shooting

Edward Eugene Garner * a fi fteen -year -

old black, was shat and killed by a

Memphis po lice o fficer on the night of

October 3, 1974. He was an o b v i o u s juve-

nile; slender of build, he weighed between 

95 and 1 0 0 pounds and stood only five .eet 

and four inches high. R. 78; O.A. 64-65. 

The officer who shot hin thought that 

young Garner was a juvenile about seven­

teen or eighteen-years-old. 3.A. 44, 54.

Citations to the Ccint Appendix in this Court are Citations to e .Citations to the opinions
below"*are to the 'appendix to the petition writ 
of certLraJi in No 33-1070 and are designated as 
A . Citations to the record below are to the
record”as collected and paginated in the 3o m t  
Aopendix in the Sixth Circuit and are designated as



2

The critical facts of the shooting 

are substantially different than those 

presented by the appellant and the 

petitioner. Contrary to their assertions, 

State's Brief at 3-4; City's Brief at 3-4: 

the officer had no basis upon which to 

assume the existence of an accomplice; he 

fired despite his reasonable belief that 

Garner was not armed; and he fired from a 

position only seconds away from young 

Garner.
On the night of October 3, 1974,

Officers Hymon and Wright responded to a 

burglarv-in-progress call at

Vollentine in Memphis. When they arrived 

on the scene, the complainant was vague 

ana inarticulate. Officer Wright describ­

ed what occurred:
[S]he was pointing to the house next 
door which we found later was 7 39 
Vollentine, and she was moving her 
mouth but both of us were inside the 
car, and, of course, the engine was 
running and couldn't hear anything. 
So my partner opened the door and got 
out and went over to her and she was



3

still pointing and she wasn’t saying 
anything. Finally, I was leaning over 
In the street like this to hear what 
she was saying through the open d00^ ‘ 
She said, "Somebody is breaking in 
there right now."

3.A. 75-77.
Officer Hyman described the i n t e r ­

change with the complainant in similar 

terms, noting that he did not understand 

her to be saying that there was more than 

one burglar.
When we arrived, the -- 
standing in the door at 7 3 7 Vol 
lentine, and she was pointing towards 
739 Vollentine, and she was, you 
know, just making a gesture with her 
finger, pointing in that direction 
And I asked her what she waa sayi g, 
and she made another gesture, made 
some type of gesture with ner fnouth» 
and I couldn't understand her, so I 
went up to the porch and as<ed her
what she was saying. R 0 u 9 h 1 1 .— i 
p^ral 1 her saying, "They are breaking
inside . ’1 ”

used the term "They are 
Did you understand her 
that there were several 
the house?

Q . You 
breaking in.” 
to be saying 
people inside

A . I don't really think she 
knew. ’ I think that she —  I think 
that she might have mentioned uhat 
she had heard some glass breaking or 
something, and she knew that somebody



4

was breaking in. I do_n 
the plural form had anv__

’h think that
indication or

her knowing.

3.A. 37-33 (emphasis added).
Hymon went around the near side of 

the 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: Garner was

crouched next to a six-foot cyclone fence 

at the back of the yard about 30 to 40 

feet away from Hymon. Se_e 3.A. 30. From 

this vantage, Hymon was abie to se~ one 

both of G a m e r ’s hands. Compare 3.A. 41

with 3.A. 56.
The state and city both recite that 

Hymon could not tell whether Garner was 

State's 3rief at 3; City’s 3riefarmed .



5

at 4 . 2 This canard is refuted by the 

record. Hymon testified that he was 

"reasonably sure that the individual was 

not armed." a.A. 41. On direct e x a m i n a ­

tion, the city's attorney asked Hymon: 

-Did you know go sitivel^ whether or not
. n t a 56 ( emohasis added) . he was armed? J.a . jo \.e.iiH"aj

i k "_ j . » r a « um ed he w a s n u • • • •He answered: i assumeu
3

Id .

2

3

The Citv is less than candid with the Court. In 
t̂s brief £  eh% Sixth Circuit, it f i t t e d  that 
Earner "did not appear to be armed. Brie

Hymen's*conclusion that Gamer was unarmed was 
based on several objective facts. Hymon noted that 
"had he been armed, I assume that he waul v 
attempted to show that by firing a weapon, or 1 
assume that he would have thrown it down, o r ^  
assume that I would have seen it. 3.A. 41“^2; '•
went on to explain: "I figured, "ell.ifheis armed 
I'm standing out in the light and all of the Ugnt 
is on me the[n] I assume he would have made seme 
kind of attempt to defend himself.... H-A. 56.

This conclusion is also corroborated by Hymon s
actions. He did not warn his partner that the
susoect might be armed, scmetnmg he definitely 
would have done "if he had any ^ e s a o n  acou 
whether this person was armed." l.A. 42.̂  He did 
fear for his personal safety either. Otherwise, as 
he admitted, "I would have taken more cover than 
what I had." Id. Rather, he knowingly remained in 
a position wnere "all of the light is on me and 
where he was a superior target. j.A. 56.



6

While young Garner crouched in 

Hymen’s flashlight beam, Hymon identified 

himself and ordered Garner to halt. Garner 

paused a few moments during which Hymon 

made no attempt to advance, but continued 

to aim his revolver at Garner. The record 

leaves little doubt that, at this point, 

Hymon neglected the opportunity to 

apprehend Garner without resort to deadly

force.
The city states as fact that "there 

were several obstacles, including a 

clothesline and other objects outlined in 

the dark, between the officer and the 

suspect, making pursuit almost certainly

futile____" C i t y ’s Brief at 4. But the

record shows that the obstacles were 

insignificant. There was a three foot 4

4 Hymon testified that he did no more than take "a 
couple of steps," 3.A. 51, "which wasn t, you £ow 
far enough to make a difference. R. 25o. Officer 
Wright testified that when he rounded the corner or 
the^ house after the shot, Hymon was standing 
still___” 3.A. 79.



7

chicken wire fence.

Detective Oan Cones of 

Sheriff's Department, 

site, testified that 

distance in the first place, and the fence 

would have been very easy to get over ... 

for that officer or me either, because 

we're both tall." R. 296. See also R. 

276-79, 254-55, 292. Hymon testified

several times that, after he shot Garner, 

he stepped over the fence without problem. 

R. 245, 25 1 , 65 1 . As for the other

obstacles, H y m a n ’s testimony was u n a m ­

biguous.
g Once you started moving from the 

west side of the house over to 
the east and to the cyclone 
fence, how long do you think it 
took you?

A. Well, it didn't take me long. I 
almost got my neck hung on the 
clothesline wire. It didn't take 
me very long, just a marker a 
ducking and moving around.

0 . A . 31. Chief 

the Shelby County 

who inspected the 

it was "no great



8

3 .A. 58. In fact, his partner testified 

that after Hymon shot Garner, it only took 

Hymon "three or four seconds" to reach the

body. 3.A. 7 9.
While Hymon paused without giving 

chase, Garner bolted,5 attempting to jump 

the fence. Hymon fired, striking young 

Garner in the head. Garner fell, draped 

over the fence. He did not die imme-

ieveral record facts bear on Garner s attempt to 
escape. First, Garner had prior brushes with the 
law that, although minor, had been the occasion .or 
discipline by his parents. At the age of 12, he and 
two other boys illegally entered the house in whose 
yard they 'were playing. 3.A. 68. He was plac- o 
probation for one year, id., and counseled and 
chastised by his father. 3.A. 23. In ^ne of 1974, 
he took a jar of pennies from a neighbor s house. 
Although the neighbor refused to call the police 
because the incident was so minor, the oarner family 
insisted and called the police themselves. R. 38-3?, 
3.A. 70.

Qn the night of his death, Edward Eugene Garner's 
judgment was further impaired by the fact that he 
was intoxicated. The medical examiner testified 
that fifteen-year-old Garner had a blood alcohol 
content of .095, just .018 under that set by 
Tennessee law as creating a presumption of intoxi­
cation for adults. 3.A. 66; R. 461. According to the 
medical exaniner, this is the equivalent of about 
four beers. R. 461.



9

diately; when the paramedics arrived on 

the scene "he was holding his head and 

just thrashing about on the ground," R. 

141, "hollering, you know, from the pain." 

R. 137. Edward Eugene Garner died on the

operating table. R. 153.

There was no one at home when the

house was broken into. After the shoot­

ing, the police found that young Garner 

had ten dollars and a coin purse taken 

from the house. R. 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.

i-an Hnilars were « a K 1 1  r  n o rl _ .1 - A - 3 A — 3 5

Plaintiff called two expert witnesses 

-- Chief Detective Dan Cones of the Shelby 

County Sheriff’s Department and Inspector 

Eugene Barksdale, former commander of the 

personal crimes bureau of the Memphis



10

Police Department -  to testify about the 

reasonableness of H y m o n ’s use of deadly 

force. As the district court found:
testimony was 

should firstThe substance of such 
to the effect that Hyman

exhausted reasonable alterna 
such as giv ing chase

whether he had a reason- 
to apprehend him

have
t iv e s
determining 
able opportunity

and

some other fashion 
weapon.

before firing
in

his

3. Both Jones and Barksdale testified

that Hymon "should have tried to apprehend 

him," R . 273, 375; Barksdale added that

"In all probability he could have appre­

hended the subject without having to shoot
6

him...." R• 373.
a . The Proceedings Below 

On April 3, 1975, Cleamtee Garner 

filed this action for damages for his 

s o n ’s death. 3.A. 5. On August 1 8 , 1 975,

The only witness to testify that the officer was 
Justified in using his gun was Memphis ?o1- "  
Captain Coletta, who had both trained Hymon and sac 
on the review board that condoned the shooting. R. 
506, 507-09. Even so, his opinion was based o a 
assumption not supported by the facts: .hat Hymon 
was "physically barred from the area by a f-nc-. R. 
532.



the district court dismissed the City of 

Memphis and the Memphis Police Department 

a 3 defendants under § 1983. After trial, 

the district court entered a memorandum 

opinion rendering judgment for the 

defendants.
Mr. Garner appealed. The court of 

appeals reversed and remanded the case 

for reconsideration in light of Monell 

Department of So c i a l Services, A36 U.S. 

653 (1978). One of the questions that it

listed for consid eration on remand was 

whether "a municipality's use of deadly 

force under Tennessee law to capture 

allegedly nondangerous felons fleeing from 

nonviolent crimes [is] constitutionally 

permissible under the fourth, sixth, 

eighth and fourteenth amendments?” Garne^r

v . Memphis Police Deot . , 600 F.2d 52, 55 

(6 th Cir. 1979); A. 13. It also remandeo 

for consideration of the question of



12

Memphis's "policy or custom" for purposes 

of liability under M o n e U . 600 F . 2 d at 

55; A. 19.
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 submit a brief on 

the merits; it entered judgment for the 

defendants. A. 20. On plaintiff's motion 

to reconsider, the court allowed the 

submission of a brief and offer of proof 

and then again entered judgment for the 

defendants. A. 31. The court of appeals 

reversed. It held that the Tennessee 

statute, Tenn. Cade Ann. § 40-808 (1975), 

violated the fourth amendment and the due 

process clause "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



13

as plaintiff’s son. 710 F.2d at 241; A. 

40-41. Rehearing and rehearing en banc 

were denied on September 26, 1983. 710

F .2d at 240; A. 58.
C. The Memphis Policy; Liberal Use 

of Seadly r'orce

When Edward Eugene Garner was shot 

and killed on October 3, 1974, he was the 

one hundred and eighth (108th) non-violent 

property crime suspect shot at by Memphis 

police officers since January 1969. R.

1 458-69 . The record before the Court 

paints a picture of a police department 

that arms and trains its officers to shoot 

to kill, encourages them to rely on their 

revolvers rather than to exhaust other 

alternatives, and assures them that they 

may do so without guidelines and with

impun ity .
Because of the district c o u r t ’s 

decision not to allow further hearings on 

remand, the record on the question of the



14

Memphis policy or custom is a hybrid. It 

consists of the evidence adduced at the 

1976 trial and the offer of proof tendered 

on remand . 7 But despite the nature of the 

record and the lack of findings below, it 

is clear that Me m p h i s ’s use of deadly 

force to stop nondangerous suspects is 

extreme.
At the 1976 trial, plaintiff called 

Captain Coletta, who was responsible for 

the department's recruit training and 

ammunition policies. He testified that, 

in the years immediately preceding the

Organized in fifteen parts, the offer of proof 
includes affidavits of expert witnesses who would 
have been called to testify, J.A. 3 1-1 0 5; excerpts 
from prior federal cases against the Memphis Police 
Department that illuminate Memphis’s actual policies 
and customs regarding the use of deadly force, R. 
798-1019, 1409-57, 1460-69, 1477-1601, 1614-1391; 
excerpts from the report of the Tennessee Advisory 
Committee to the U.S. Commission on Civil Rights, 
which was based on hearings on civil rights abuses 
by the Memohis Police Department, R. 1050-53; the 
deadly force policies of 44 major municipalities, 
R. 1108-1363; the training materials for the New 
York Police Department, R. 1369-1408; and an excerpt 
from an IEAA publication on deadly force that 
details police training procedures used in other 
cities but not in .Memphis. R. 1602-13.



Garner shooting, Memphis twice upgraded 

its ammunition to bullets with greater 

velocity, accuracy, and predicted wounding 

power. R. 413-16, 425-27, 447. It

finally selected the 125 grain, semi- 

jacketed, hollow-paint 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. R. 487-88, 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. R. 3 5 7 - 5 3 . See,
0

also R. 1597, 1307-08. Together with the

Captain Coletta testified that the reason for 
teaching recruits to aim for the torso is no 
related to police safety; it did not create a better 
chance of neutralizing a dangerous suspect. H. 
353-57. Rather, it is taught solely because the 
torso presents a greater target and thus reduces the 
chances of missing. R. 357-58.



16

use of "dum-dum” bullets, this creates a 

far greater risk that the resulting wound 

will be fatal. Indeed, in a prior case, 

the district court found that Memphis 

police officers "were trained whenever 

they use their firearms to 'shoot to 

k i l l . 1" v . Memphis P o l ice Dept. ,

548 F . 2d 1 247, 1 250 (6th Cir. 1 977).

The policies, practices, and customs 

of the Memphis Police Department encourage 

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 illus­

trations of the fleeing felon rule, R. 

329-32;^ that there was no training in 9

9 The heavy reliance on the "Shoot-Oon't Shoot" film 
encouraoes the use of firearms because, as plain­
tiff'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. 3.A. 88.



alternatives that should be exhausted 

before resorting to deadly force to stop 

unarmed fleeing felony suspects, R. 340; 

that the d e p a r t m e n t ’s firearms manual 

details firearms techniques, but not 

techniques to avoid the need for the use 

of weapons, R. 344-45; and that the use of 

deadly force to stop fleeing felony 

suspects is left to the individual 

officer's discretion: recruits are simply 

told that they must live with themselves 

if they kill a person. R. 326, 345;

accord R. 195-96, 901, 956, 1797. 10

Moreover, the firearm training and 

ammunition policies of the department 

create the indelible impression on Memphis 

officers that the department encourages 

use of deadly force. Plaintiff's expert, 

Chief William R. 8racey, explained that a

10 At the time of his affidavit, William R. Bracey was 
Chief of Patrol of the .New 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



%

- 13 -

"definite message was transmitted when 

[Memphis] reiterated its. policy of 

shooting 'to stop' and at the same time 

introduced the use of dum-dum bullets. The 

message transmitted to line officers would

seem to suggest the department's support

of firearm use." 3.A. 87.

Lest this policy not b e clearly

understood, Memphis takes two further

steps to assure its officers that they may

readily resort to deadly force: It

provides outspoken and unquestioning 

public support for the shooter 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 alternatives 
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 o.
’̂in-dun" bullets^ /ndaitr|^ning and diSC1Pline were



19

resolutely refuses to discipline its 

officers for the use of their revolvers

under any circumstances.

In January 1972, for example, 

fourteen-year-old Eddie Lee Madison, a 

black, was shotgunned in the back. He and 

a friend had stolen a car to joyride. They 

were stopped by the police at 11:00 P.«* 

in downtown Memphis. Eddie Madison bolted 

from the d r i v e r ’s side and ran. Neither 

officer gave chase down the virtually 

empty street. Both opened fire, despite 

the fact that the accomplice was already 

in custody and thus could have provided 

M a d i s o n ’s identity to the police. Five 

days later, the mayor issued a statement 

defending the shooting, saying that the 

officers' conduct was "in line with both 

previous policy and in line with any 

future policy that may be developed." R. 

1632, 1325-28. Nevertheless, the mayor

subsequently admitted in deposition that



20

he found the use of force in that situa­

tion excessive and that he amended the 

policy to prohibit such shootings. O.A.

108-114. See. O.A. 140-44 (amended 
1 1

policy).
Perhaps even more important is the

Memphis policy never to discipline

officers for the use of deadly force under

any circumstances. No Memphis police

officer has ever been disciplined for the

use of his gun. R. 547, 1853. The

civilian complaint procedures are designed
1 2

to deter complaints. R. 1050-58. And, 

as detailed in the record before the Court 

in Prandon v. H o l t , No. 83-1622, various 

other policies of the department and the 

City Civil Service Commission result in a

1 1 The Memphis policy was again amended in 1979 to 
prohibit the shooting of juveniles, like Madison and 
Garner, except in defense of life. O.A. 120-21, 12

12 There is a rule that all complainants must take a 
polygraph while no officer is ever required to. The 
procedures also require that the officer against 
whom a charge is made must immediately be notified 
of tne complainant's name and address. R. 1050-58.



21

disciplinary situation that, as c h a r a c ­

terized by former Director of Police 

Chapman, is best described as "hopeless.” 

Brief for Petitioners, Elizabeth Brandon, 

et al ., at 12-13.
As a result, Memphis officers get the 

clear message that they can use deadly 

force 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. As the 

court of appeals noted in this case, Hymon 

shot young Garner pursuant to the Memphis 

policy "which allows an officer to kill a 

fleeing felon rather than run the risk of 

allowing him to escape apprehension." 600

F . 2d at 54; A . 16.
0. The Memphis Custom; Racial

Pi sc r im ina t ion

On remand, respondent made an

extensive proffer regarding the racial 

basis of the Memphis policy countenancing



22

the shooting of fleeing, nonviolent, 

property crime suspects. The offer of 

proof contains the raw data concerning all 

arrests in Memphis between 1963 and 1974,

R. 1409-57, 1767-68; data on all shootings

of fleeing property'crime suspects between 

1 969 and 1 974, R. 1 4 60 -69 ;. data on all 

those killed by Memphis police officers 

between 1969 and 1976, R. 1764-67, 10/1; 

prior analysis of this data by a statisti­

cian, R. 1769-77, and his testimony at an 

earlier trial regarding this analysis, R. 

1559-62, 1589-92; historical data regard­

ing race discrimination by the Memphis 

Police Department from 1374 through the

,n id-nineteen-seventies , including the

deposition testimony of the mayor and 

police director supporting this conclu­

sion, R. 908-910; 0.A. 116-19, 135-38; R.

13 All of the foregoing data was collected and provided 
by the Memphis Police Department as defendant in 
Wilev v. Memphis Police Deot. , Civ. Action No. 
£-75-8 NW.0. fenn. June 50, 1975), aff’d, 548 F._d 
1247 (6th Cir. 1977).



23

1539-40, 1571-75, 1646-56, 1677-78, 1690,

1328-29; and the affidavit of plaintiff's 

expert, Dr. Oames 0. Fyfe,1* which analyzed 

in detail the arrest and shooting data 

contained in the offer of proof. 3. A. 

97-106.
The data reveal that there are 

significant disparities in the use of 

deadly force 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. Between 

1969 and 1976, blacks constituted 70.6% of

H  nr. Fyfe is a former .Mew York Police Department 
lieutenant and training officer. He designed a 
firearms trainings program for the ,New York Police 
Department in which over 20,000 officers a 
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 nas 
served as a consultant on the deadly force issue for 
the United States Department of Justice and ̂ the 
Civil Rights Commission. J.A. 97-??. ne aj.su 
teaches courses at the F.3.I. National Academy at
Quantico, Va.



24

those arrested for property crimes in 

Memphis but 83.425 of the property crime 

suspects shot at by the Memphis police.

In contrast, the percentage of black 

violent crime suspects shot at by Memphis 

police was closely proportionate to their 

percentage in the violent crime arrest 

population: 35.425 and 83.125, respectively. 

R. 1773.
Qr . Fyfe reviewed this data and 

concluded that, controlling for differen­

tial racial representation in the arrest 

population, black property crime suspects 

were mare than twice as likely to be shot 

at than whites (4.33 per 1 000 black 

property crime arrests; 1.31 per 1000 

white property crime arrests), four times 

more likely to be wounded (.536 per 1000 

blacks; .1113 per 1 000 whites), and 40 25 

more likely to be killed (.63 per 1000 

blacks; .45 per 1 000 whites). 3.A.

1 0 1 - 0 2 .



25

C o m p a r i s o n  of shootings by M e mphis

police officers while controlling for race

of the shooting victim and the nature of

the incident provided similarly striking

data. Dr. F y f e ’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 which

blacks were killed. Of the blacks shot,

505 were unarmed and nonassaultive , 2 3 . 1 %

assaultive but not armed with a gun, 26.95

assaultive and armed with a gun. Of the

whites shot, only one (12.55) was non-

assault ive, two (255) were assaultive but

not armed with a gun, and five (62.55)
1 5

were armed with a gun. 15

15 or. Fyfe noted that: ’’These are certainly dramatic 
differences, but no measure of their significance is 
possible ... because the only statistically signi­
ficant category of whites killed is those armed with
guns." 3.A. 1Q&.



26

Based on this data, Dr. r y f e  con 

eluded that, during the period in q u e s ­

tion, 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 discreti onary  

shooting of non- dangerous fleeing felony 

suspects. Between 1969 and 1976, Memphis 

police killed 2.6 unarmed, non-assault i v e 

blacks for each armed, assaultive white. 

3. A. 1 02-04.
The district court, in its

post-reconsideration order, A. 31,

rejected Dr. F y f e ’s conclusions on the 

basis of several unsupportab1e considera­

tions. It noted Dr. Fyfe's "bias," A. 34,
1 O

without ever having seen him testify. It 16

16 The district court's "bias" finding was based on 
Or. Fyfe's disagreement with the Memphis policy 
allowing the use of deadly force against non- 
dangerous suspects. This "bias," however, is.the 
official policy of the F.8.I. and numerous metro-



27

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...," a.A. 101; indeed, 

the data on which Dr. Fyfe relied was 

included in the offer of proof and 

provided the actual number of both white 

and black property crime arrests together 

with the raw data of all arrests. R. 

1409-57, 1767-63. 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 

*as that mads by the Memphis Police

politan police departments as disparate as New York,
Atlanta, and Charlotte, North Carolina.
1200, 1293, 1869.



28

Department and included with the arrest 

statistics. R. 1559, 1767-63. In numerous 

similar ways, the district court simply 

misapprehended Dr. Fyfe's proffered
17

testimony.

17 ror example, in questioning Or. 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 
'precise1 in respect to property crimes compa­
rison." A. 32 n. 1. But Dr. Fyfe accounted for this 
imprecision in a way that favored Memphis. His 
"admission" was that:

More than half (50.7 percent) of the police 
shootings in Mempnis during 1969-1974 involved 
shooting at property crime suspects. The 
comparable percentage in 1971-1976 in .New Yore 
was no mors than 11.8 percent. This compa­
rison is not precise because the New York City 
figure includes all shootings to "prevent or 
terminate crimes." Thus, it includes shoot­
ings precipitated by both property crimes and 
crimes of violence. My estimate of the 
percentage of .New York City police shootings 
which involved property crime suspects only is 
feur oercent.

0. A. 100.
Similarly, in arguing that Dr. Fyfe failed to 

control for disparate racial involvement in >-he 
underlying felonies, the district court alleged that 
Dr. Fyfe "concedes elsewhere that there is also 
'differential racial involvement in police shoot- 
inqs.'" A. 32. What Dr. Fyfe said, however, is 
that: "In New York City, differential racial



29

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. The depart­

ment's history i s  one of entrenched racism 

in employment, promotion, and law enforce­

ment.18 The department was repeatedly the 

agent of enforcement of the segregation 

laws in the 6 0 ’s, R. 1539-40, engaging in 

racial abuse and brutality during the 

sanitation strike in 1963. R. 1571-75. A 

1970 NAACP Ad Hoc Committee Report 

concluded that: "the most common farm of

address by a Memphis policeman to a blac<

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." J.A.

18 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. R. 1646.



30

person appears to be 'nigger.'" R. 1671.

As acknowledged by Director Chapman, "the

'Hey, boy' syndrome ... lasted [in the

Memphis police department] longer, but

lasted there only because it was perceived

by the department as being accepted by the

majority of this community.." 3.A. 136.

This was still true in 1974, when Garner 
19

was shot.
In 1974, 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 that was 

almost 40% black. R. 169. See also. R. 19

19 As the mayor testified:
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 abso­
lutely true and I would say almost across the 
board.

R. 1828-29; accord 3.A. 118-119 (police director 
testified that": ’’There is a basis in fact for the
^ist^st^f Ĵ he ,)3vlack community--- Q. And 1974?



31

2 0
910; 3 . A. 136. T h i s  isolated minority

conformed its behavior to the departmental 

ethic; a 3 director Chapman testified in 

1979, he "had equal problems with the 

black officers in terms of the black 

officers trying to out red-neck the white 

officers.... I nean t h a t ’s literally

[sic] what we had." 3.A. 137.

SnHMARY OF ARGUMENT

This case is not about the power "to 

use whatever force is reasonably necessary 

to effect the arrest of a s u s p e c t , 1' 

State’s Brief at 14, nor "to lawfully use 

deadly force to apprehend." City's Brief 

at 14. Rather, it is about the ability of 

the police to use force that is intended 

and likely to result in death to prevent 

the escape of unarmed, nonviolent, and

213 That same year, an employment discrimination lawsuit 
brought by the Department of Justice was settled. 
The consent decree was designed to increase the 
hiring and promotion of black officers, tilted 
States v. City of Memphis, Civ. Action No. C-/4-Z36 
(W.D. lenn. l'^74;.



32

nondangerous fleeing felony suspects when 

the officer believes that he cannot effect 

an arrest: in short, "if the killing of a

non-violent fleeing felony suspect 

deprives the suspect of constitutional 

guarantees." State's Brief at 18. It 

does. Whether analyzed in terms of the 

fourth amendment, the right not to be 

deprived of life without due process, or 

the prohibition of punishment without due 

process, the taking of life under these 

circumstances is disproportionate to and 

excessive in light of the state interests 

asserted in justification. While the 

common law fleeing felon doctrine may have 

made sense at the time of its development 

and, even, as late as the nineteenth 

century, modern conditions have rendered 

the practice unreasonable and excessive. A 

majority of the states and the 0 v s r “ 

whelming majority of municipal police

recognized this anddepartments have



33

modified or abandoned the practice.

The Court should also affirm on the 

basis of either of two alternative grounds 

that support the judgment below. The 

deadly force policies and customs of the 

Memphis Police Department encourage and 

insulate the excessive and unnecessary use 

of deadly force in situations, such as the 

instant case, where the officer has failed 

to exhaust reasonable alternatives. 

Independent of the c o n s titutionality of 

the common law fleeing felon doctrine, 

this municipal policy violates the fourth 

amendment and the due process clause. 

Moreover, the Memphis policy that leaves 

the decision to shoot unarmed, nonviolent, 

fleeing property crime suspects to the 

discretion of the individual officer is 

racially discriminatory.



34

I.

ARGUMENT

THE COURT OF APPEALS CORRECTLY 
BALANCED THE NATUBE OF THE INTBUSI ON 
AGAINST THE STATE'S INTERESTS IN LAW 
ENFORCEMENT AND HELD ™ A T THE 
OF AN UNARMED, NONVIOLENT, FLEEING 
PROPERTY CRIME SUSPECT VIOLATES THE 
CONSTITUTION ______ ___________ —
The question in thi3 case is whether 

a 3 1ate or city may authorize its police 

to kill a fleeing suspect whom the 

officer reasonably believes to be unarmed 

when the officer has probable cause to 

believe that the suspect committed a 

nonviolent felony such as burglary but 

feels that he cannot capture him. Whether 

analyzed under the fourth amendment or the 

due process clause, the answer ultimately 

depends on the relationship between the 

nature of the intrusion inflicted upon the 

suspect and the state interests asserted 

in justification. The court of appeals 

assessed this balance correctly. The use 

of deadly force in these circumstances is



35

excessive and disproportionate —  that is, 

the asserted state interests are not 

substantial enough to justify the taking 

of the life of a nonviolent, fleeing 

felony suspect.
In the sections that follow, we 

discuss the appropriate analysis under 

each of three alternative constitutional 

theories. Section A discusses the fourth 

amendment. Section 3 cons iders the due 

process clause's protection of life. 

Section C evaluates the fleeing felon 

doctrine in light of the fourteenth 

a m e n d m e n t ’s protection against punishment 

without due process. Finally, section 0 

assesses the balance of interests required 

by each of these analyses.

A < The Fourth Amendment Requires a
Balancing or the interests

The city argues that the court of 

appeals erred because the fourth amendment.

than set the minimum standarddoes no more



36

for initiating an arrest —  i.e., probable

cause -- and does not control what the

police may do in effectuating that arrest.

City's 3rief at 13. Similarly, the state

argues that the common law fleeing felon

rule ' satisfies the fourth amendment

because it protects against arbitrary or

unnecessary police action. State s 3rief

at 10-11. It also raises additional

arguments why the rule satisfies the

fourth amendment. As we show below, the

state and the city are wrong on each of

these points; decision in this case will

turn on the balancing required by the
21

fourth amendment. 21

21 9oth the state and the city concede this point in 
the end. The state admits that ’"the reasona­
bleness' under the Fourth Amendment of the seizure 
of a person appears to have traditionally been 
evaluated in terms of 'whether ... the magnitude of 
the action was necessary in relation to the state 
interest served by the police conduct...." State s 
Brief at 10 (citing Terry v . Ohio, 392 U.5. 1 
(1963)). Similarly, tne city admits that, if a 
fourth amendment analysis is appropriate, "the court 
must then look to the_rule of reasonableness 
established by Terry [and] identify both the 
governmental interest "involved which would justify



37

First, the Tennessee practice at 

issue is governed by the fourth amendment.

It speaks directly to *[T]he right of the 

people to be secure in their persons ... 

against unreasonable ... seizures...."

U.S. Const. amend. IV; Terry v. Ohio. 392 

U.S. 1, 16 (1963); United States v. Place, 

U.s. , 77 L . E d .2d 110, 121-22

( 1 9 3 3 ). Dunaway v. New York, 442 U.S. 200, 

207 (1979); Cuoo v. Murphy, 412 U.S. 291, 

294 (1973); Davis v. Mississippi, 394 U.S. 

721, 726-27 (1969). As the court of

appeals observed: "Killing the individual 

... is plainly a 'seizure.'" 710 F.2d at

243; A. 44.
Moreover, the Court has long r e p u ­

diated the contention that the fourth 

amendment governs only the "when" of 

police action and not the "how." The

the use of deadly force and the effect such use 
would have upon individual rights. Then the Court
must balance the two competing interests.... City s
Brief at 13.



38

Court only recently reaffirmed what it

"observed in Terr y, 1 [t ]he manner in which

the seizure . . •[was] conducted is, o f

course, as vital a part of the inquiry a 3

whether [it was] warranted at all 1 II

United States v . Place, 77 l_.Ed.2d at 121

(auotinq Terry,
22

392 U.S. at 23). In

Place, the Court went on to "examine the

agents’ conduc t .. . , " id . , and found it

"sufficient to render the se izure un -
23

reasonable." Id. at 122.

22 in Terry, the Court added that: "The Fourth Amend­
ment proceeds as much by limitations upon the scope 
of Governmental action as by imposing preconditions 
upon its initiation." 392 U.S. at 28-29.

23 See also Schmerber v. California, 384 U.S. 75/, 768
('Wther the means ana procedures employed 

resoected relevant Fourth Amendment standards of 
v. California, 374 U.S. 23, 

38 (1963) (whether "me mecnoo of entering the *  
may offend federal constitutional standards of 
reasonableness"); 'United States v. Calandra, 414 
U.S. 338, 346 (1974) (suopoena far too sweeping in 
its tarms to be regarded as reasonable’ under the 
Fourth Amendment") (dicta); Dalia v. United States, 
441 U.S. 238, 258 (1979) ("tne manner m  which a 
warrant is executed is subject to later judicial 
review as to its reasonableness").



39

But if the city is incorrect in its 

assertion that the fourth amendment only 

governs when police can arrest, the state 

is equally wrong in its assertion that it 

only provides protection from arbitrary 

and unnecessary, but not excessive, 

police actions. In every fourth amendment 

context, the Court has considered the 

reasonableness of police actions by 

measuring the extent of the intrusion 

against the asserted justifications. Thus, 

in Terry the Court observed that: "The

scope of the search must be ’strictly tied 

to and justified b y ’ the circumstances 

which rendered its initiation p e r m i s ­

sible." 392 U.S. at 19 (quoting Warden v ■ 

Havden , 3 8 7 U.S. 294, 31 0 ( 1 967 ) (Fortas,

3., concurring)). In Florida v .__Ro_ve_r,

460 U.S. _____, 75 L.Ed.2d 229 ( 1 983 ), the

Court noted that a "search must be limited 

in scope to that which is justified by the 

particular purposes served...." • at



40

238. "The reason ablen ess requirement of 

the Fourth Amendment requires no less when

the police action is a s e i z u r e ---- The

scope of the detention must be carefully 

tailored to its underlying justification.

Id. See also Michigan v. Summers, 452 U.S. 

692, 701-02 (1981) (gauging nature of the

intrusion).
Thus, in determining the reason­

ableness of the use of deadly force under 

the fourth amendment, the court of appeals 

fallowed exactly the mode of analysis 

applied by this Court in considering other

farms of police action.
T» r r y and its progeny rests on a 
5 a ’ ancing of the competing interests 
to determine the reasonableness of 
the type of seizure involved within 
the meaning of "the Fourth Amend­
ment's general proscription against 
unreasonable searches and seizures. 
392 U.S. at 20. We must balance -he 
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.



41

United States v. 

Accord lJn_i_t_ed_ 

Marquez, _____ U.

Place, 77 L.Ed.2d at 118. 

States v. Villamonte- 

. _____, 77 L .Ed . 2d 22, 30

(1983).
The "nature and quality of the 

intrusion" in this case were incomparably 

severe. As the court of appeals noted, 

young Garner was "seized" permanently and 

irrevocably. 710 F.2d at 245; A. 44. 

Moreover, the physical assault of the 

shooting was itself an intrusion on fourth 

amendment interests. As noted in Jenkins 

v. A v e r e t t , 424 F.2d 1228 (4th Cir. 

1970), on which the court of appeals 

relied, 710 F.2d at 245; A. 50, the fourth 

amendment "shield covers the individual’s 

physical integrity;" it protects the 

"inestimable right of personal security. 

Id., 424 F .2d at 1 232 (quoting Terrv v . 

Ohio , 392 U.S. at 8-9); accord Florida v .

75 l.Ed.2d at 23 8; 0 av is 7 •Royer,



42

Mississippi , 394 U.S. at 726-27 (''Nothing

is mors clear than that the Fourth

Amendment was meant to prevent wholesale

intrusions upon the personal security of

our ci t i z e n r y ----" ) 5 ^ee Schm erb er,

C a l ifornia, 384 U.S. at 767 ( we are

dealing with intrusions into the human
24

body").

24 Every circuit has concurred in this conclusion, 
although most now fallow the Second Circuit's lead 
as articulated by Cudge Friendly in *ohnson v^ 
Click, 481 F.2d 1028 (2d Cir.), cert, denied, 414 
uT^T* 1033 ( 1973), that "quite apart from any 
■specific' of the Sill of Rights, application of 
undue force by law enforcement officers deprives a 
suspect of liberty without due process of law. Id. 
at 1032: accord Landrioan v. City of Warwick, 628 
F 2d ? ? 6 . H T t  STrT 198UJ Id-Ling united
States v. Villarin Gerena, 553 F.2d 723, 728 (1st 

— ^577;  ̂rourtn and nrth amendments)) ; Howeil Vj_ 
Cataldi, 464 F.2d 272 (3rd Cir. 1972) ; United states 
v. ""Stakes, 506 F.2d 771, 775-76 Cir.
] 575 J : TeTfl v. Seward 639 F.2d 637, 639 n.1 (oth

\ W T iCir. 1982); dyra v 
Cir.1972); Herrera v . 
(3th Cir

"3rishke, 466 F.2d 6 (7th
Valentine, 653 F.2d220,J 229 

1981;; Gregory v
(9th Cir. 1974); Morgan

i  i c  ,  1 • w ,  ------------

Thompson, 500 F.2d 59
Labiak^ 363 F.2d 338 

(10th Cir. 1966); Career v. Carlson, 447 ^.2d 353 
(O.C. Cir. 1971), rev'd on other grounds, 409 U.S. 
418 (1973).

The argument that Cenkins is inapposite, City s 
Brief at 8, 12-13, is tnus incorrect. Cenkins was 
not premised on the lack of probable cause to 
arrest. Rather, the vice it found was that our



43

Thus, the Court must balance a 

uniquely harsh intrusion on young Garner's 

fourth amendment interests against the 

state’s asserted justifications. The state 

seeks to avoid this analysis by two 

additional fourth amendment arguments. 

First, it argues that the fleeing felon 

doctrine has historical sanction because 

it coexisted with the adoption of the 

fourth amendment. State's Brief at 9. 

Second, it argues that the balance 

entertained by the court of appeals "is 

both unprecedented and unwarranted 

because it measures the police action by 

the gravity of the underlying crime. Jd.. 

at 10. We dispose of each of these in 

turn.

plaintiff was subjected to the reckless use of 
excessive force." 424 F.2d at 1232 (emphasis added) . 
[he city quotes but does not cite the Jenkins 
p a n e l 's'observation that "no force was needed to 
restrain Jenkins." City Brief at 13. But it fails 
to disclose that this quote comes from the discus­
sion of the state law claim and was not part of the 
court’s constitutional analysis. Compare 424 F.2d 
at 1232 with id. at 1231.



44

(1) T h e common law b a s is of— tne 
d o c t rine no longer supports the 
reasonableness of shooting all 
Treeing felons:

At common law, felony usually 

referred only to crimes punishable by 

death. "[T]he idea bf felony is indeed so 

generally connected with that of captial 

punishment, that we find .it hard to 

separate t h e m . ” 4 W. alackstone, C O M ­

MENTARIES 93 (1300). In its early

development, the statutory law of

Tennessee largely assimilated this common 

law norm. When Tennessee codified the 

fleeing felon doctrine in 1858, and during 

the period following enactment of the 

fourteenth amendment, the Tennessee code 

prescribed the death penalty for a large 

number of crimes. Pub. Stats. of Tenn. 

§5 (Supp. 1858-1371). But as the n i n e ­

teenth century proceeded, the felony label 

became attached to a broadening array of 

non-capital crimes. Comment, Deadly Force



45

t a Arrest : T r i g g ering Constitutional,

R e v i e w , 11 Harv. Civ . R .-Civ . Lib . L . Rev .

361, 366-67 (1974).
As long as many felonies were

capital, authorizing deadly force to stop 

fleeing felony suspects was not without 

its logic. For a suspect fleeing a death 

penalty could be assumed to be a desperate 

person, motivated to resist arrest by all 

possible m e a n s . 25 But the days have long 

since passed when "[t]o be a suspected 

felon was often as good as being a dead 

on e ." T. Taylor, TWO STUOIES IN C O N S T I ­

TUTIONAL INTERPRETATION 28 (1969). Crimes 

once considered capital offenses are no 

longer so viewed. The use of the death 

penalty has been severely curtailed so 

that it is available only for crimes 

causing loss of life under special,

25 This is reflected in the Tennesse statute, which is 
entitled "Resistance to Officer" and authorizes the 
use of deadly force if the suspect "either flee or 
forcibly resist...." Tenn. Code. Ann. §40-308.



46

aggravating circumstances . S e_e 9 r e%9— —  

G e o r g i a , 423 U.S. 153 (1976); Coker.^.

Georgia, 433 U.S. 534 (1977).

Moreover, the doctrine developed in 

an age when there existed virtually no 

communication between law enforcement 

personnel in different towns and cities. 

Thus, the escaping suspect could easily 

establish a new life in another community 

with little fear of discovery and eventual 

capture. But, by the eighteenth century, 

authorities were circulating descriptions 

of wanted criminals outside of London. 

And, by the early twentieth century, 

American police officers consulted their 

colleagues in other cities about thieves 

and their whereabouts. Sherman, Execution 

Without Trial: Police Homicide and the

Constitution , 33 Vand.L.Rev. 71, 76

(1930); Comment, Deadly Fo rce, supra, 11 

H a rv . Civ . R .-Civ . Lib . L . Rev . at 361. The 

development of modern police agencies



- 47

armed with sophisticated means of communi­

cation has further reduced the common law 

justification for the doctrine.

So have technological advances in 

weaponry . During the early years of the 

doctrine, weaponry was limited to a r m a ­

ments wielded by hand —  swords, farm 

tools, and halberds. And even after the 

invention of the musket, its inconvenience 

and inaccuracy prevented police use of 

ballistic weapons. Sherman, s_u£T_a_, 33

Vand.l.Rev. at 75. In this technological 

context, the practical meaning of the 

doctrine was that suspects could be killed 

if they resisted arrest in a hand-to-hand 

struggle; it did not mean that they could 

be killed from a distance while they were 

in flight. These practical considerations 

were decisively changed by the widespread 

use of revolvers, beginning in the 1350's. 

C. Kennet and 0. Anderson, THE GUN IN 

AMERICA 22 (1975). For accurate and



48

powerful handguns allowed, and continue to 

allow, the police to kill fleeing suspects 

who pose no immediate threat to anyone.

Thus, the original premises that made

the fleeing felon doctrine reasonable at

the time the fourth amendment was adopted

are no longer applicable. History, like

the fourth amendment, is not static. Sejs,

e ,q ,, Payton v . New York , 445 U.S. 5 73 ,

5 9 8 ( 1 980 ) ( " the issue is not one that can

be said to have been definitively se.tled

by the common law at the time the fourth

Amendment was a d o p t e d ” ). As one court

observed, "the historical foundation of

American state fleeing-felon statutes is a

foundation built on loose sand.” Tavlor v-JL

Collins, 574 F.Supp. 1554, 1553 (E.D.Mich.

1983). A dangerous anachronism, the

doctrine should be consigned to the

history that produced it.

It is revolting to have no better 
reason for a rule of law than that so 
it was laid down in the time of Henry 
IV. It is still more revolting if the



49

q rounds upon which it was laid down 
have vanished long since and the rule 
simply persists from blind imitation 
of the past.

Paths of the Law, 10 Harv .

L .Rev. 457, 469 (1897).

(2) The Tennessee statute's d i s -
r e g 3rd of the aravity o f the
underlying o f’T e n s e is a Draper
consideration under the fourth
amendment:

The state charges that the court of 

appeals erred in judging the r e a s o n a b l e ­

ness of the seizure on the basis of the 

gravity of the underlying crime, asserting 

that this analysis "is both unprecedented 

and unwarranted." State's 9rief at 10. 

But what the court of appeals actually did 

was look at the underlying offense to 

assess the nature of the state's interest 

in killing the fleeing felon rather than

allowing his escape.

A state statute or rule that makes no 
distinctions based on the type of 
offense or the risk of danger to the 
community is inherently suspect 
because it permits an unnecesarily



50

severe and excessive police 
that is out of proportion 
danger to the community.

response 
to the

G a r n e r , 710 F.2d at 244; A. 48. The 

statute's failing is its sweeping authori­

zation of discretion to shoot the fleeing 

thief along with the fleeing murderer,

which cannot he justified by public safety

concerns that would support a more

narrowly drawn statute.

This analysis is hardly u n p r e c e ­

dented. In considering the warrantless 

entry in McDonald v. U n i ted States, 335 

U s. 4 5 1 (1948), Justice Jackson's

concurring opinion noted that:

Whether there is reasonable necessity 
for a search without waiting to 
obtain a warrant certainly depends 
somewhat upon the gravity of the 
offense thought to be in progress.... 
It is to me a shocking proposition 
that private homes, even quarters in 
a tenement, may be indiscriminately 
invaded at the discretion of any 
suspicious police officer engaged in 
following up offenses that involve no 
uiol»nes or threats of it.



51

Id. at 459. The Chief Justice has simi­

larly observed that:
Freeing either a tiger or a 

mouse in a school room is an illegal 
act, but no rational person would 
auggest that these two acts should be 
punished in the same way. From time 
to time judges have occasion to pass 
on regulations governing P o l 1**6 
procedures. I wonder what would be 
the judicial response to a polic* 
order authorizing "shoot to klil 
with respect to every fugitive. It 
is easy to predict our collective 
wrath and outrage. We, in common 
with all rational minds, would say 
that the police response must relate 
to the gravity and need; that a 
"shoot" order might conceivably be 
tolerable to prevent the escape of a 
convicted killer but surely not for a 
car thief, a pickpocket or a s h o p ­
lifter.

Bivens v. Six Unknown A g e n t s , 403 U.S. 

388, 419 (1971) (Burger, C.J., di s s e n t ­

ing) .
The Court's recent decision in Weish 

v. W i s c o n s i n , _____ U.S. » 80 L.Ed.2d

712 (1984). lays to rest any doubt on this

score. Welsh
conclude[d] that the commonsense 
approach utilized by most lower 
courts is required by the Fourth



52

Amendment prohibition on " u n r e a d ­
able searches and seizures, 
h [e ]Id that an important factor to be 
considered ... is the gravity of the 
underlying offense for which the 
arrest is being made.

Id. at 745.
In sum, the court below properly 

analyzed the Tennessee statute under the 

fourth amendment. It assessed the nature 

of the intrusion, the gravity of the 

underlying offense, and their relationship 

to the nature of the state’s justification 

for its policy. As we show in section 0 

below,' it also struck the correct c o n s t i ­

tutional balance.
B . The Deprivation of U f a  *ust _be 

j u s t ified bv C o u n t e r v a iling 
TtTce Interests

Edward Eugene Garner was shot and 

killed by a Memphis police officer. ’The 

deceased’s interest in life plainly was of 

constitutional dimension. U.S. Const, 

amend. XIV, § 1 . " Williams v . '<ali±, 624

F.2d 695, 697 (5th Cir. 1980). Since life



53

is a " fundamental” right,26 its deprivation 

"may be justified only by a -compelling 

state interest' ... and ... legislative 

enactments must be narrowly drawn to 

express only the legitimate state 

interests at stake." Roe v. Wade, 410 

U.S. 1 1 3 , 1 55 ( 1 973). See also. Cleveland

Hoard of Education v . LaFleur , 414 U.S.

632 (1974); Stanley v. Illinois, 405 U.S. 

645 (1972). Thus, the state must demon­

strate the existence of interests equiva-

26 The right not to" be deprived of life without due 
process is explicitly guaranteed by the C ^ i t u -  
tion and is inherent in the constitutionalframe­
work. See, e ^ ,  Yick Wo v. Hopkins, 118 U.S. 356,
370 ( i T O ) ^ h e  fundamental rights to life,
iiberty and the pursuit of happiness ); „ohnson . 
ierbst, 304 U.S. 453, 462 (1933) ("fundamental 
numan rights of and U b e c t y  j ; ̂ crews^v^

is among theUnited States, 
(Rutiedge, j7,

325 U.S. 91, 131 
concurring) (life

"clear-cut f^danental rights"); id at 134-35 
(Murphy, 0., dissenting) ("He has been deprived of 
the right to life itself.... That right was his 
because he was an American citizen because he was 
a human being. As such, he was entitled to all the 
respect and fair treatment that befits the dignity 
of man, a dignity that is recognized and guaranteed 
by the Constitution."); H a w .  Anderson, 345 U.S. 
528, 533 (1953) (a right "rar more precious than 
... property rights").



54

lent to or otherwise sufficient to 

counterbalance the right that is curtailed 

i.e., the use of deadly force must not 

be excessive. Williams v . Kell^, 624 F. 2 d

at 697-99; Johnson v. C l i c k , 481 F . 2d

1 028, 1 031 -33 ( 2d Cir. 1 973 ); A/ler

H o p p e r , 532 F.Supp. 198 (M.D. Ala. 1981); * 27

Jacobs V. Fi-fcv ° f Wichita, 531 F.Supp. 129 
27

(D .Kan. 1982).
The court of appeals applied these 

principles to assess the constitutionality 

of the Tennessee fleeing felon statute. 

710 F . 2d at 246-47; A. 5 2- 5 3 . As under 

the fourth amendment, they require a 

careful balancing of the deprivation 

inflicted against the state interests 

asserted to support the drastic measure of 

deadly force.

27 Avipr and Jacobs both held the common law fleeing 
feHn doctrine unconstitutional, belying v.he 
assertion that Garner is the first and only case to 
have done so. State's Brief at 14; City s 3ne a 
7, 11.



55

C. The P r o h ibition Against P u n i s ^  
m.nt without f)ue 'ProcessHires Consideration o r State 
TTTfTr'esta Assertea in Justi- 
Ticatlon

In both the district court and the 

court of appeals, plai ntiff advanced 

another, established prin ciple of due 

process that invalidates the Tennessee 

statute. The fourteenth amendment provides 

every person with "protection against 

punishment without due process of law.... 

For under the due process clause, a 

[person] may not be punished prior to an 

adjudication of guilt in accordance with 

due process of law." Bell v. Wolfish, 441 

U.S. 520, 535 (1979); accord Ingraham v^

Wright, 430 U.S. 651, 671-72 n. 40 (1977); 

Kennedy v. Mendora-Martine2 , 372 U.S. 144, 

165-67 (1963). The shooting of Edward

Eugene Garner violated the due process 

clause because it "amount[ed] to punish- 

Wolfish, 441 U.S. at 535.m e n t . "



56

A "court must decide whether the 

disability is imposed for the purpose of 

punishment or whether it is but an 

incident of some other legitimate g o v e r n ­

mental purpose." Wolfish, 441 U.S. at 538.

In W o l f i s h , the Court cited the seven 

u.nrinra-Hartinez criteria as -useful 

guideposts" for making that determination:

Whether the sanction involves an 
affirmative disability or restraint, 
whether it has historically b»an 
regarded as a punishment, whether

n r : - * 1: ; :  ^ h ^ t r o j J a t r i u

ssaft-r .i-iuriSitiV-".
^ T r a p ^ u  l.r„h.:,hv ‘cVu
whether an alternative purpose to
which it may r a t i o n a l l y  be connected
is assignable for it, and whether it 
appears excessive in relation to t

........ 372 U.S. at 163-69

( footnotes omitted). The application of 

these seven criteria overwhelmingly points

in only one direction: The use of deadly



57

force to apprehend an unarmed fleeing 

felony suspect is, in purpose and effect, 

p un i s hm e n t .
1 ) The imposition of death is the 

ultimate "affirmative di sability or r e ­

straint," depriving the victim of "the 

right to have rights." fnrman v. Georgia, 

408 U.S. 238, 290 (1972) (Brennan, 0.,

concurring). See also Sc r e ws v. United 

States, 325 U.S. 91, 138 (1945) (Rutledge,

3., concurring); W o o d s o n-------- £̂_£_t_h

C a r o l i n a , 428 U.S. 280, 323 (1976) 

(Rehnquist, 0., dissenting).

2) ’ The historical underpinnings of 

the doctrine demonstrate that the shooting 

of fleeing felons was regarded as p u n i s h ­

ment. As late as the 15th century in 

England and the 18th century in America, 

all felonies -- murder, rape, m a n ­

slaughter, robbery, sodomy, mayhem, 

burglary, arson, prison break, and larceny 

—  were punishable by death; the fleeing



53

felon doctrine merely accelerated the 

penal process. Early commentators

described "the extirpation [as] but a 

premature execution of the inevitable

j u d g m e n t ____ ^  "His killing was at best

an extrajudicial and premature execution 

of a penalty which he had already incurred 

by his f e l o n y . " 30 Moreover, the fleeing 

felon doctrine grew out of an era when

summary .execution was well ensconced in

the law.
Thieves were often killed outright 
during the hue and cry, even after 
they had been captured. Let aii J 
forth where God may direct them to 
qo " urged the tenth-century laws of 
Edgar; "let them do justice an the 
thief." Suspicion sufficed to convict

28 p nmment. DeadlV Force to Arrest: Tri^ erJ£3.
rnn<st- i tutionai Review, II Harv . Civ. Kigncs-u.iv. 
Lib. 1. Kev io I, ' 3bT"( 1974); R. Perkins, CRIMINAL
LAW 10 (2d ed. 1969).

29 Note, Legalized Murder of a Fleeing Felon, 15 Va.
« S a l s o  Note, "he Lse of

Note, legalized Murder of a Fleeing Felon, 15 Va. 
L. RevT ^  oeealso of
Oeadlv Force in Arizona by Police Officers, 1972 L. 
I ice. Urcer *6\ , T»lt made luLie uiTTerence if 
the suspected felon were killed in the process o 
capture, since, in the eyes of the law, he had 
already forfeited his life by committing the

30 Bohlen 4 Schulman, Arrest With and Without^
n  ii o-, i SoT '■“  1 1 q7 11 -on



59

thieves without any trial at all, and 
"execution in such c a s e s  often
followed immediately on a ^ e s t .  
According to the preamble to Act ZJ
of Henry VIII, it appearsthat the
common law authorized the victims o
crimes and attempted crimes to kill 
the criminal, regardless of .h.th.r 
it wa3 necessary to prevent the 
felony.... In the context of the t i m e s  
i n  which the kill-to-arrest 
evolved, it was c 1 e a r 1 y _ 1 1 nked to a 
philosophy of summary justice that 
can onl, be visaed aa punishment.

Sherman, s c o r e , 33 Vend.L . Rev. at 81

(footnotes omitted).
Even after the adoption of the

fourteenth amendment, the fleeing felon 

doctrine was regarded as punishment. Judge

(later Justice) Brown said
I doubt, however, whether this law 
would be strictly ap p 1 1 c ab 1 e ait tHe 
present day. Suppose, for example a 
person were arrested for petit 
larceny, which was a felony at the 
common^law, might an officer under 
any circumstances be justified in 
killing him? I think not. The pun isJ2z. 
m e n t is altogether t o o j T s ^  
portioned to the magn itude of the 
o ffense .



60

United States v. C l a r k , 31 Fed. 710, 713 

(C.C.E.D. Mich. 1337) (emphasis added). 

Thus, historically, the shooting of a 

fleeing felony suspect has always been

regarded as punishment.

3 ) 4 5 ) A "finding of scienter" is

made by the police officer in his determi­

nation that there is a "reasonable 

suspicion," O.A. 141, that the fleeing 

suspect committed a felony with its 

scienter requirement. That felony is 

already a crime; although there is some 

doubt about which crime the victim is 

being shot for , 32 "we are in fact killing

31 Burglary is prohibited by Tenn Code. Ann. § 
39«3_4Q1'(1975). Flight is not a statutory crime, 
but it was a crime at common law. See n.32, in fra. 
Memphis City Code § 30-15 makes it "unlawful" for 
any person "to escape frcm ... any officer or member 
of the police force." Violation of this section 
which prescribes no penalty, is subject to a maximum 
fine of $50. See Memphis City Code § 1-3.

37 As cogently argued by Professor Mikeli:

May I ask what we are killing him for 'when he 
steals an automobile and runs off with it? Are 
.we killing him for stealing the automobile? ... 
If we catch him and try him ..., what do *e do



61

the ... thief for the volatile 

of felony and flight, both of 

crimes." Sherman, supra, 33 Van

combination

which are 

d .L .Rev . at

84.
4 ) The doctrine promotes the 

traditional aims of punish.ment —  retribu­

tion and deterrence. It was historically 

viewed as merely accelerating punishment 

in an era when retribution (as contrasted 

with rehabilitation) was the primary goal 

of the penal law. The courts themselves 

have indicated the retributive nature of 

this sanction. In discussing the Tennessee

► - him7 Put him before a policeman and have a 
policeman shoot him? Of course not. We give 
him three years in a penitentiary  . It cannot 
be then that we allow the officer to Kill him 
because he stole the automobile, because the 
statute provides only three y*ary n 
tentiary for that. Is it then for fleeing. And 
aqain I insist this is not a question of 
resistance to the officer. Is it for fleeing 
that we Kill him? Fleeing from arrest is also 
a common law offense and is punishable by a 
lignt penalty, a penalty much less than .hat 
for stealing the automobile.

9 A.L.I. PROCEEDINGS 186-37 (1 9 3 1), Quoted in 3.
Michael 4 H. Wechsler, CRIMINAL LAW AND I To ACm Tn I-
STRATION 80-82 n. 3 (1940).



62

fleeing felon rule in d i i.gjj > the p a n e '1' 

cited the observation of the dissent in 

Mattis v. S c h n a r r , 547 F.2d 1007, 1023

(3th Cir. 1 976 ), vacated on case and. 

controversy grounds sub now. Ashcroft Vj. 

Mattis , 431 U . S .  171 ( 1 977): "There is no

constitutional right to commit felonious 

offenses and escape the cons equences of 

those offenses." Wile*, 543 F.2d at 1253. 

The "consequences" of criminal conduct are
33

p un ishment.
Whether the shooting of fleeing 

felony suspects actually has a deterrent 

effect, the record indicates that Memphis 

intends it for this purpose. Based on the

33 This line of reasoning assumes the guilt of the 
fleeing felony suspect. But flight is not neces­
sarily an index of guilt; it is equally to ̂ e
the result of immaturity. Fee Fddincs v. Oklahoma, 
455 U.S. 104, 115-116 n. 11 rT782; ("adolescents ... 
are more ... impulsive [and] may have less capacity 
to control their conduct and think in long range 
terms than adults"). Thus, many of the prior cases 
have involved minors as victims. See, e - £ - ’ 
sup* a ; Q u a l ls  v  534 [ ^ ^ 6 m T ! ? .
737bT: Mattis. supra; Jones v. Marshall, 523 r.2 
132 (2d Cir. 1975;.



63

testimony of Mayor Chandler and Police 

Director Hubbard, de fendants in this 

action whose testimony is in the record, 

r . 1332-33 (Mayor: "Q • Do you think the

policy acts as a deterrent? A. That is the 

purpose."), 1343-50 (Police Director 

Hubbard: " I feel [it] has to be regarded

a3 some kind of deterrent to serious 

crime."); 3 ee also 3.A. 122-23 (Police 

Director Chapman), the district court in

I found
that one of the principal purposes of 
M e m p h i s ’ policy regarding use of 
deadly force insofar as they attemP 
to justify the possible death of 

hnfolarv suspects, is to

wilev v . Memphis P o lice Department, Civ. 

Action No. C-73-8, Mem.Op. at 13 (W.D. 

Tenn. June 30 , 1 975 ). 34 This subjective

34 in this Court, the city echoes the Wilev panel and 
the Mattis dissent in noting that the risking 'elony 
s u s ^ H h o u l d  pay for his crime: "There is no 
constitutional right to commit felonious offenses 
and to escape the consequences of 
Citv's Brief at 15. Both the city s and the state 
briefs suggest the deterrence rationale elsewhere as 
well CiTy's Brief at 14, 15 (ability to kill



64

intent to punish suffices 

the policy. Wolfish, 441

to invalidate

U.S. at 5 3 3 ; 
35

Mgnrlnza-Martinez, 372 U.S. at 169.

6 ) & 7): Absent this punitive

intent, a sanction may avoid the inference 

that it is a punishment if "an alternative 

purpose to which it may rationally be 

connected is assignable for it and ..." it 

does not appear "excessive in relation to 

the alternative p u r p o s e . . . . ” Mendoza^

natifies the "criminal that flight is not an 
option"!; State’s Brief at 19 (power to shoo 
"enhances the likelihood that suspects will submit

35 Chief Lacey's testimony offered below includes the 
observation that:

From my experience it seems that shooting a 
fleeing felony suspect is mostly related to an 
officer's urge to punish a criminal. This 
instinct for punishment is especially strong 
when the suspect is thought to have just 
committed a violent crime. Much of the resi­
stance we faced when the Department tightened 
its deadly-force regulations was grounded in 
the feeling that criminals deserved no chance 
of escaping punishment and that the punishment 
of being shot when fleeing from a police 
officer was not excessive.

3.A. 37.



65

Martinez 572 U.S. at 168-69. Analysis of 

passible alternative purposes, as well as 

the professed deterrent aim, follows.

n A Balancing nf the Interest^
remonstrated fc h at the He.e 
Tfeion Doctrine is Unconstitu 
t ional

At the outset, the Court should be 

clear about the interests at. stake. This 

case is not about the right to escape; it 

does not concern shooting to wound or the 

use of less than lethal force to a p p r e ­

hend, restrain, or subdue a fleeing 

suspect.37 Memphis policy and Tennessee law

56 captain Coletta"testified that recruits were taught 
toaim for the torso because it presents a _gr.at_r 
target and thus reduces the chances of missing. R. 
357-58. When asked whether he could or would teach 
recruits the marksmanship necessary to be able to 
shoot and hit a person’s extremities, Captai 
Coletta said: "Certainly I would. R. 352* ™
on to say, however, that he did_not have the time, 
budget, or recruit talent to do it successfully. . 
352-55. Some other municipalities provide guid - 
lines to their officers governing wh.sn to shoot to 
kill and when to shoot to 'wound. R. 1505-04. _ee
also R. 1519. . ■

37 The""alternatives to deadly force in this situation 
are numerous. As Chief Bracey testified:

Using a radio to summon assistance is nearly 
always correct tactically. With a quick cal-



66

armed the officer with a gun, supplied him 

ith dum-dum bullets designed to inflict 

lethal injuries, taught him to shoot 

t the torso where viscera are more likely 

to be hit, and authorized him to shoot 

from less than 40 feet away without even

w

more 

a

for assistance, a fleeing suspect « n  be even­
tually caught even if he does manage to escape 
temporarily. Or if the suspect is unarmed, 
moving up on him quickly with a drawn night­
stick and an air of determination will do 
wonders toward halting a suspect thinking about 
fleeinq. The point is that in most cases there 
are*aICsrnatives to deadly force U  officera 
are expected and trained to reach for Jnese 
options.

2 A 89. Accord R. 278-79 (Chief Detective i=nes);
R A376-77*TTnspector Barksdale). Modern technology
also provides options such as rubber bulletsand
tranquilizer guns, for example. Increasingly, police
departments are looking for alternatives.

Local governments have been turning to the 
Justice Department's Community Relations 
Service for help.... The sessions stress tech­
niques that prevent the use of force by police 
in\he first place.... Some police departments 
are being taught new ways to capture suspects 
_the use of a heavy net, for examoie, rather
than a gun.

-Magnum Force, Massive Lawsuits (More and More 
Communities Urge Police to Show Restraint) , The 
York Times, April 3, 1984, p. 2 E, col. •



67

attempting to give chase. They empowered 

him to do so without regard to the fact 

that he had already concluded that Garner 

* as unarmed, 3.A. 41, 56, and without

regard to the dangerousness of the 

underlying offense. This is the "police 

order authorizing 'shoot to k i l l ’ with 

respect to every fugitive" identified by 

the Chief Justice in Bivens. *03 U.S. at 

411. See discussion supra at 16.

In support of this, the state and the 

city advance an array of interests that 

are only compelling on the surface. As 

expressed in the briefs, they are " e f f e c ­

tive law enforcement, the apprehension of 

criminals, the prevention of crime, and 

protection of the general public." State's 

Brief at 17, 18; City’s 3rief at 14. But 

these interests do not withstand scrutiny 

when viewed in light of the actual 

policies and practices that they are 

asserted to justify. The use of deadly



68

force to stop unarmed, nonviolent fleeing 

felony suspects is both arbitrary and 

excessive in light of each of these

asserted justifications.

(1) Appr ehension of the suspect: 

The fleeing felon doctrine is inherently 

excessive in light of this purpose. A 

Memphis officer who uses his gun "to 

apprehend” shoots to kill, co ntemplating 

that either death or serious bodily injury 

will result. If he is successful, no 

apprehension will take place.

Analysis of the purposes of apprehen­

sion illustrates the ex cessiveness of 

deadly force employed to "effect an 

arrest." Tenn. Code Ann. § 40-808 (19/5). 

As the city acknowledges: "The police

officers who are in pursuit of a fleeing 

felon have [a] duty to apprehend him as 

the first step of our criminal law 

process." City's Brief at 16. But for



69

yau„g Garner, it -as the first and final 

step.
Normally, we apprehend a suspect for 

the purpose of turning him over to the 

judiciary. He is put on trial before a 

jury to determine whether he is guilty or 

innocent. He is brought before the court 

for sentencing -- a process that entails 

consideration not just of the need for 

punishment, but also the need and opportu­

nity for rehabilitation. Shooting the 

suspect as a means of apprehension is 

excessive in light of these goals and the 

varied and important social interests 

behind them. It frustrates the determina­

tion of guilt or innocence that is the 

purpose of apprehension. It obliterates 

both the substance and appearance of due 

process that is central to the operation 

of our criminal justice system. And, 

finally, it prevents the judicial determi­

nation of punishment that is the ultimate



70

goal of the arrest process, frustrating 

the possible rehabilitative goals of the 

criminal justice system in favor of a 

disposition that only promotes its 

punishment interests -- retribution and 

deterrence.
But this is only if the officer is 

successful. Host of the time he is not. 

Handguns are an unreliable means of 

effecting an arrest. For example, the 

record shows that, between 1969 and 1974, 

Memphis police used their revolvers to 

attempt to stop fleeing property crime 

suspects on 114 occasions. But this 

resulted in only 16 woundings and 17 

deaths. R. 1460-69. Although the data is 

incomplete, a large percentage of the 

suspects fired upon eluded capture. 21*» 

J.A. 129. In the words of the Memphis 

police director: "The chances are ...

under the circumstances where deadly force 

is used..., he [the police officer] will



71

not hit [the suspect]." 3. A . 13°*

Under these circumstances, it is ^ r d  

to understand how the doctrine can be 

viewed as "a sufficiently productive 

mechanism to justify the intrusion on 

Fourth Amendment interests which such 

[shootings] entail." ^ l a w a r e  v. Prouse, 

440 U.S. 648, 659 (1979). The odds are

that the officer will either fail to 

accomplish his objective or accomplish too 

much. That being so, it cannot be said 

that the use of deadly force "to appre­

hend" is "carefully tailored to its 

underlying justification," Florida v̂  

Rover , 77 L.Ed.2d at 2 3 8 , or that the * 33

Tennessee statute is "narrowly drawn to 

express only the legitimate state 

interests at stake." Roe v. Wade,. 410 U.S.

38

33 Director Chacman also testified that part of the 
reason for banning warning shots was the fact that 
it had the opposite of the desired ef.ect; it 
tended to spur the fleeing suspect. He conclude 
that shots that miss probably have the same ef.ect. 
3.A. 132-33.



- 72

at 155.
(2) The crime prevention interests; 

The prevention of crime interest 

several facets. It does not include the 

prevention of the crime in which the 

suspect is engaged. Tennessee authorizes 

the killing of a felony suspect after the 

crime has been committed, as occurred in

this case.
The interest in disabling the suspect 

from committing another crime in the 

indefinite future is the explicit basis 

cited by the mayor and the po 1 ice^director 

to justify the Memphis policy. But it

39 The mayor testified that: "[Y]ou let him get away, 
tomorrow he's in another place stealing guns and 
maybe the next week he's in the 7-11 blowing 
somebody’s brains out. I'm just a strong 
feelinq that a felon is a felon and if you commit a 
burglary you will step up gradually to something 

" R. 1832; accord id. at 1833-34. Similarly, 
S T p . X U .  direTtar” testified that: feel •
dangerous felon is a person who by virtue of his 
actions and ... his propensity is an individual 
who, if allowed to escape from whatever crime you 
encounter him in, is subject to cause danger, is 
subject to be in a situation which will be dangerous 
in the future.” 3.A. 122-23.



73

suffers from two distinct constitutional 

defects: It is both punitive in purpose

and excessive.
First, incapacitation is one of the 

primary goals of criminal sentencing. See 
J.Q. Wilson, THINKING ABOUT CRIME (1975). 

Incarceration serves this goal in two 
ways. It incapacitates the individual from 
committing further crimes during his 
sentence and provides specific deterrence, 
through punishment, against his committing 
further crimes on release. The use of 
deadly force to incapacitate in the way 
suggested by Memphis's mayor and police 
director is clearly intended to take the 
place of specific deterrence. Thus, the 
incapacitation purpose cannot negate the 
inference of punishment arising from the 
application of the other Mendoza-Mart inez

criteria.
Second, the use of deadly force to 

incapacitate is excessive in its perma-



- 74

nency. This is best demonstrated by Coker, 

v, G e o r g i a , 433 U.S. 584 (1977). Despite 

the exceptional severity of the crime of 

rape, ("Short of homicide, it is the 

■ultimate violation of s e l f . " ’ at

597), "the death penalty, which is unique 

in its severity and irrevocability,' 

f Gregg v. G e o r g i a ,] 428 U.S. 187, is an 

excessive penalty for the rapist who, as 

such does not take human life." Coka£.> 

433 U.S. at 598. If the killing of a

rapist.is excessive to incapacitate him 

and prevent him from repeating that crime, 

then shooting an unarmed burglary suspect 

who might, it is speculated, steal

another $10 in the future is similarly 

excessive.
The shooting of fleeing felony 

suspects may prevent crime in another way: 

It may serve to deter others. As deve­

loped above, the Memphis policy has been 

justified on just this basis. But this



75

justification is constitutionally defec­
tive for the same two reasons. General 
deterrence is a core purpose of punish­
ment, Mendoza-Mart i n e_z , 372 U.S. at 168,

and thus unavailable as an alternative 
nonpunitive rationale for the fleeing, 
felon doctrine. Moreover, if, despite any 
deterrent value, death is excessive for 
crimes as serious as rape or felony­
murder, Coker , suprj; Enmund v. Florida, 
453 U.S. 782 (1982), then it is surely
excessive as a deterrent to either
burglary or flight.

(3) The safety interests: The state

and the city argue that the protection of 
the public justifies the fleeing felon 
doctrine. When the suspect is armed or 
has committed a violent crime, this is so 
as recognized by the court of appeals. But 
young Garner had no weapon, threatened no 
one either during the commission of the 
crime or afterward, and was not thought by



76

the poli ce officer to be armed. Authoriz­

ing police to shoot under these c i r c u m ­

s tances does not in any way advance the 

s t a t e ’s i nterest in p r o t e c t i n g ^  the 

physical safety of its c i t i z e n s  or,

indeed, its police officers.

The state and the city seek to end 

run the facts by reference to "[t]he need 

to reduce v i o l e n c e  in our society," 

S t a t e ’s Brief at 11, "the ready availabi­

lity of h a n d g u n s  in our society and 

widespread violence," id. at 17, "the long 

tradition of violence which surrounds the

Ama-ioan c r i m i n a l  , ' City

40

41

Manifestly, in a_case where the safety interests 
are properly presented, they would justify resort to 
deablv force and its use would be non-punitive in 
nature. This belies the state’s strawman argument 
that "if the killing of a non-violent fleeing e ony 
suspect deprives the suspect of constitutional 
guarantees, it does so no less with the fleeing 
violent offender." State’s Brief at 18.
The record evidence shows that the limitation 
the use of deadly force to self-defense and d* fen*® 
of others implemented by the New York City police in 
1972 actually increased officer safety , result g 
fewer officer deaths and fewer assaults on officers.
J.A. 94, 92, 96.



77

the comm on law c o n c e p t i o n  of burglary as 

an inherently violent crime, id. at 23-25, 

and the "common experience" that "burglary 

frequently is a s s o c i a t e d  with crimes of 

v i o l e n c e  ag a i n s t  the person."' Id. at 25. 

This rhetoric does not withstand scrutiny.

That h a n d g u n s  are a v a i l a b l e  to 

c r i m i n a l s  and that there is substantial 

violence in our so ciety cannot justify a 

rule that allows a police officer to shoot 

a fifteen-year-old when he is " r e a s o n a b l y  

sure that the i n d i v i d u a l  was not

armed____" 3.A. 41. That some c r i m i n a l s

are vi o l e n t  cannot create a p r e s umption 

that ail are and, therefore, that all may 

be shot. "This a rgument almost always 

permits the officer to shoot to kill." 

G a r n e r , 7 1 Q F.2d at 246; A. 52. It would

be hard to imagine a gre a t e r  i m balance 

between the asserted justification and the 

state's power to kill than a rule premised 

an the notion that, b e c a u s e  ki lling is



73

s o m e t i m e s  j u s t i f i e d ,  

f i e d .

it is always justi-

The cit y ' s  argument that burglary is 

so frequently a crime of violence that it 

j u s t i f i e s  use of deadly force to prevent 

escape would have appeal if it had any 

basis in fact. But it does not.

.2 At best, the ' n d ^ n ^ a p s 3, 'Tn 1̂ 5 8 ^heiTthe
cur rent "Tennessee statute was enacted, burglary was 
often violent and therefore the common law f.ee-ng
felon doctrine is justified as appliec' s 7<?r “ he 
Rut as'with the other common law bases for tne
S t » 5 . “ «  subsection Ad), sucra, 
have changed? Indeed, this is rejected m  the Model 
Penal Code comment curiously miscited by the city. 
While -the offense was or i91"al ** c:°n ® the
violent nighttime assault on a d w e l l i n g , t e 
fact that the heme "is the place of security forhis 
fanily, as well as his most cherished possessions 
makes' it "understandable that ... public fear o e 
burglar has broadened beyond its original objec­
tive." ALI, Model Penal Code, Vol. II, Art. 221- ,
Comment at 67. A carefull reading or most of the
authorities cited in the city's brief reveals not 
that they consider burglary a violent crime, but 
that it is a serious crime because it involves an 
invasion of the sanctity of the home. The city s
reliance on the MPC Comment's reference to the
terror instilled by the fear of the burglary is 
similarly misplaced. The comment did not conclude 
that burqlars terrorize their victims, only that the

— c  ~  1 f*  ̂ i H • ir*n 1 dJf v d o .  IU •



79

The available data refutes the c i t y ’s 

"common e x p e r i e n c e ” a s s e r t i o n  that 

b u r g l a r y  is f r e q u e n t l y  a s s o c i a t e d  with 

v i o l e n c e .  Se_e I ewis v . State, 398 So.2d 

432, 438 (Fla. 1981) (aggravating circum­

stance of prior c o n v i c t i o n  of "felony 

i n volving the use or threat of violence" 

not s a t i s f i e d  by two prior b u r g l a r y  

c o n v i c t i o n s ) .  The studies show that the 

singular aspect of b u r g l a r y  is that most 

b u r g l a r s  go to great l engths to avoid a 

nfrontation and that the vast m a j o r i t yco
are not a r m e d / 3 The most extensive study

43 Two studies reported a consistent d«sire amongst 
burglars to avoid confrontation; Reppetto found that 
70% of all burglars reported that they want to 
ascertain before entry whether a residence is

c?57r^\T»ovffr.tV w S S i ^ s ^ cô i**TtoM 
(1971). Reppetto found that 75% of all burglars 
were not armed, 8% were armed with guns, 7- with 
k n i v e ~ n d  5% with mace. W .  at 107, *n0^er 3<:udy 
found that the burglar was armed in only 1Z* of t e 
Few burglaries that resulted in . confrcntetion with 
a resident. I. Waller 4 N. Okihiro, 8URGLARY. THE 
VICTIM AND THE PUBLIC 32 (1978). Tennessee law 
recognizes this phenomenon, prescribing different 
penalties for burglary with or without a gun. Tenn. 
Code Ann. § 39—3—401 (1975).



80

found that 923 of all burglaries occurred 

in u n o c c u p i e d  b u i ldings, that more than 

half of the r e m a i n i n g  83 o c c u r r e d  while 

the residents were asleep, and that 143 of 

the r e m a i n d e r  occurred wi t h o u t  the

occupants' awareness of the i n t rusion. T. 

Repp etto, R E S I D E N T I A L  CRIME 17 (1974).

Only 2.83 of the b u r g l a r i e s  studied 

resulted in a confront a t i o n .  This latter 

figure has been c o r r o b o r a t e d  in another 

c o n t e m p o r a n e o u s  study. C onklin and

Bittner, Burglary in a Suburb, 11 Crimino­

logy 208, 214 (1973). Even the study that 

found a higher c o n f r o n t a t i o n  rate, I.

Waller 4 N. Okihira, BURGLARY: THE VICTIM
4 4

AND THE PUBLIC (1978), reported that only 

2.63 of all c o n f r o n t a t i o n s  involved a 

physical assault or the threat of one: 

most involved only brief verbal exchanges. 44

44 Although Waller and Okihira found a confrontation 
rate of 213, their sample was extremely smal-, 
consisting of only 116 residential crimes. In 
contrast, Repoetto’s sample was 1910.



81

Id. at 31-32. Only 1S of all burglaries 

became robberies, only . 6 8  of all murders 

occurred during burglaries, and only 6.55 

of all r e p o r t e d  rapes o c c u r r e d  in a 

r e s idence b e t w e e n  s t r a n g e r s .  Reppetto, 

su p r a , at 5, 93.
Thus, the asserted safety j u s t i f i ­

cations for the fleeing felon doctrine are
45

but a chimera of the common law age. They 

cannot- j u s t i f y  a modern p r a c t i c e  that 

allows po l i c e  to shoot and kill unarmed, 

nonviolent, property crime s u s p e c t s  like

Edward Eugene Garner.
( 4 ) E f f e c t i v e  law e n f o rcement :

Finally, the state and city urge that the 45

45 The Court has not hesitated to question common law 
premises when they are no longer supported by the 
modern experience with crime. In Enmund v . ^.ar,ig£> 
the Court rejected the application of the ^Tony- 
murder doctrine as a basis for the imposition of the 
death penalty. In doing so, it rejected the common 
sense notion that robbery is so frequently asso­
ciated with murder that a state legislature could 
rationally make robbery/felony-murder a capital 
offense. It looked instead to recent crime statis­
tics that refuted this anecdotal sense of criminal 
behavior. 458 U.S. at 799-800 4 nn. 23-24.



32

d o c t r i n e  be m a i n t a i n e d  b e c a u s e  it is 

nece ssary to e f f e c t i v e  law e n f o r c e m e n t .  

"Only through the privilege to use deadly 

force as a last resort ... is the power to 

arrest truly effective." State's Brief at 

19; £e_e also C i t y ’s Brief at 15. This

argument fails for two reasons.

First, it assumes that allowing 

escape and imposing death are the only two 

options available. But if the city 

c o m p l a i n s  about "[n]ot giving police 

officers the necessary power to effectuate 

the arrest...," City's Brief at 15, it is 

because the city has failed to develop 

other a l t e r n a t i v e s .  While it may have 

been true at the time of the common law 

that only lethal weapons were available, 

it is not so in 1934. Other t a ctical and 

t e c h n o l o g i c a l  a l t e r n a t i v e s  now exist to 

effect capture that do not carry the same 

risk of fatal c o n s e q u e n c e s ,  

sion, supra, subsection 0 ( 1 ).

See discus-



83

Second, and more i m p o r t a n t l y ,  the 

argument only serves to i l l u m i n a t e  the 

a r bitrary n a t u r e  of the doctrine. If it 

is the effective power of arre st and the 

a u t h o r i t y  of law that we are vindicating, 

then why c a n n o t  dead ly force be used to 

stop the fleeing m i s d e m e a n a n t ?  Memphis 

prohibits the shooting of e m b e z z l e r s  no 

matter how much they have taken or how 

many people they have v i c t i m i z e d .  3 . A. 

142, 190. Yet Garner, who stole $10, was

shot. But, as a f i f t e e n - year-a 1 d , the 

most serious crime that he could have been 

convicted of under T e n nessee law in 1974 

was d e l i n q u e n c y .  Tenn. Code Ann. §37-102 

(1977). These re sults cannot r e a s o n a b l y  

be j u s t i f i e d  in the name of v i n d icating 

lawful authority. That r a t i o n a l e  either 

fails to p rovide a s e n s i b l e  basis for 

drawing a line in this area or exposes the 

fact that the lines drawn by both the



34

Tennessee statute and the Memphis policy
are wholly arbitrary.

The line drawn by the court of

appeals, on the other hand, truly r elates 

"the police reponse ... to the gravity and 

need." B i v e n s , 403 U.S. at 419 (Burger, 

C.3., d i s s e n t i n g ) .  If the officer has 

cause to believe that a fleeing felon is 

d a n g e r o u s ,  he may be a u t h o r i z e d  to use 

deadly force to prevent escape and thus to

protect the public.

The state and the city argue that the

officer will be unable to make the 

o n - t h e - s p o t  d e t e r m i n a t i o n s  called for by 

this rule. S t a t e ’s Brief at 11, City's 

Brief at 21 (quoting W i 1 ev , 548 F.2d at

1253). But the actual p r a c t i c e s  of most 

law enforcement agencies d e m o n s t r a t e  its 

p r a c t i c a b i l i t y .  Fourteen stat es have 

adopted the same rule, City's Brief at 

30-31, and most police departments already 

restrain the use of deadly force by police



85

o f f i c e r s  in a manner that is eq u a l l y  or 

« o r e  restrictive. See M.tulia, A Balance 

- ......... » flenort of the International

- ■  ----------------------  4  <3

(National Institute of Justice 1932). The 

common sense of law e n f o r c e m e n t  p r o f e s ­

sionals across the nation is that these 

restrictive standards are workable and do

not hamper effective law enforcement.

The judgments and actual practices of 

the v arious states are surely relevant to 

the constitutional "reasonableness” of the 

fleeing felon doctrine. The city concedes 

that " [ tlhere c e r t a i n l y  is no c o n s e n s u s  

among the state 1 e g i a l a t u r e s ...." Jd • at 

1 9 . This is much like the s i t u a t i o n  in

46 Moreover, prior fourth amendment cases require 
similar judgments by police under no less 
circumstances. See Terrv v^ O t i o , 392 U.S. at 20, ,
9ihran v. New York, 392 U.S. 40, 64 (1963;. And^we 
exneet the criminal justice system, including| its 
lay jurors, to make similar judgments regarding 
futurt dangerousness all the time. See Schall v .
Martin, ___ U.S. —  » L. E . d ’ ’ "77
( 19 84/; Barefoot v. Estelle, ----  U.S. --
L.Ed.2d 1‘a5C, 1 1 db O M T T .



86

Pavton v. New Y o r k , 445 U.S. 573 (1980), 

where the Court c o n s i d e r e d  and rejected 

another ancient common law practice. In 

P a y t o n , the court looked at "custom and * 47

c o n t e m p o r a r y  norms" as part of "the 

c o n s t i t u t i o n a l  analysis" of what is 

" r e a s o n a b l e . "  .Id. at 600 ("Only 24 of 

the 50 states sanction [the practice] and 

there is an ob v i o u s  d e c l i n i n g  trend.") 

Here only 2 3 4? states retain the outdated 

fleeing felon rule; 26 have exp r e s s l y  

limited it. As in Pavton, "the strength of 

the trend is greater than the numbers 

alone indicate." Jd. The actual practices 

of most police d e p a r t m e n t s  are governed 

not by state law but by more r e s t r i c t i v e  

m u n i c i p a l  or d e p a r t m e n t a l  policies. See_ 

Matulia, s u p r a , at 153-54. Ninety-three

47 The city lists Maryland as a common law state, 
City's Brief at 27, but a reading of Giant Food, 
Inc. v. Scherrv, 51 M d . App. 586, 444 A.2d 4ai 
T 1 95TV, shows that the courts of that state are 
limiting the doctrine to forcible felonies where 
there is imminent danger.



87

per c e n t  of 

co m m o n  law 

them would 

Brief in

these policies reject the 
rule, jld. at 161 ; about 753 of 
b a r  the shooting in this case. 
Opposition for Respondent-

48Appellee at 18.
The o u t m o d e d  common law rule no 

longer commands the support of e x p e r i e n c e  

or reason in light of modern developments 

and p r a c t i c e s .  It ca n n o t  w i t h s t a n d

s c rutiny under the fourth or fourteenth 

amendments. The c o n s t i t u t i o n a l  s t andard 

for the use of deadly force adopted by the 

court .of app eals should be af f i r m e d  48

48 This trend holds true even in common law states, for 
example, Michigan is a common law See
Werner v. Hartfelder, 113 Mich. App.747 318 N.W.2d
325 rr?327T dutUore than half of the local law 
enforcement agencies have deadly force Policies t a 
are more restrictive than the common law and about 
753 of those are consonant with the standard adop 
bv the court of appeals. Staff Report to th£. 
Michigan Civil Riqnts Commssign at ^ e t j e q .  Q.ay 
13, 1$31 'his 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 
fore® policies that would bar the shooting in this 
cas^ R 1318, 1291, 1130-1131, 1110, 1330, 1209, 4
1218.



38

b e c a u s e  it c o r r e c t l y  b a l a n c e s  the

interests at stake.
The c o nstitutional line drawn by the

court of a ppeals should be a f f i r m e d  for 

one further reason. It is a commonplace 

of constitutional law, not just an aspect 

of the Terry balance, that the greater the 

governmental intrusion on life or liberty, 

the higher the n e c essary j u s t i f i c a t i o n .  

See, e.q. , Add i n g t o n  v . T e x a s ,  441 

U.S.413,423 (1979); In re W i n s hig, 397

n s 3 58,362 ( 1 9 7 Q ) . In a u t h o r i z i n g  the

use of deadly force upon probable cause to 

make a felony arrest, the fleeing felon 

doctrine equ a t e s  the level of c e r t a i n t y  

required for the power to kill with that 

n e c essary for the a u t h o r i t y  to arrest. 

Probable cause leaves a large margin for 

error; it is not proof beyond a reasonable 

doubt or, even, a p r e p o n d e r a n c e  of the 

evidence. S e e , e . q . , Bri n e q a r  v. United

States, 338 U.S. 160, 175-76 (1949). It



89

s u f f i c e s  f o r  an a r r e s t  b e c a u s e  t he n a t u r e  

o f  t h e  i n t r u s i o n  i s  l i m i t e d ;  i t  o n l y  

a u t h o r i z e s  t h e  p o l i c e  to h o l d  t he s u s p e c t  

f or  a l i m i t e d  t i me  and t he n put  hi m b e f o r e

a m a g i s t r a t e .  r » r s t e i n  v .  420 U*S *

1 0 3 ,  1 1 3 - 1 4  ( 1 9 7 5 ) ;  R a k e r  v .  M c C o l l a n ,  443

U.S. 137, 142-43 (1979).

The f l e e i n g  f e l o n  d o c t r i n e  a l l o w s  t he

k i l l i n g  o f  t h e  s u s p e c t  upon t h e  same 

p r o b a b l e  c a u s e  r e q u i r e d ,  and w i t h  t he same 

r i s k  o f  e r r o r  t o l e r a b l e ,  f o r  an a r r e s t .  

But  s u r e l y  t h e  p e r m a n e n t  d e p r i v a t i o n  o f  

l i f e  at  t he ha nd s  o f  a l o n e  p o l i c e  o f f i c e r  

r e q u i r e s  a l e v e l  o f  c e r t a i n t y  s l i g h t l y  

more r i g o r o u s  t han t h a t  wh i c h  s u f f i c e s  f or  

a t r i p  to the s t a t i o n  h o u s e .  O t h e r w i s e ,  

f a t a l  e r r o r s  a r e  s u r e  to o c c u r .  G a r n e r ,  

a f t e r  a l l ,  was s h o t  on p r o b a b l e  c a u s e  to 

b e l i e v e  he was a f e l o n  wh e n ,  u n d e r  

T e n n e s s e e  l a w ,  h i s  g r e a t e s t  c r i m e  was 

d e l i n q u e n c y .  S i m i l a r l y ,  i n  P r u i t t  v .  C it jf

o f  Mo n t g o me r y  , C i v . Act. No. 83-T-9Q3-N



90

( M .D . Ala. June 12, 1984), a burglary in

progress call ended with the shooting of a 

t e enager who had been n e c k i n g  with his 

girlfriend. No crime had occurred at all.

A system of law " m i n d f u l  that the 

function of legal process is to m i n i m i z e  

the risk of err o n e o u s  d e c i s i o n s , "  

A d d i n g t o n , 441 U.S. at 425, can accept 

this level of error when the only conse­

quence is a short term d e p r i v a t i o n  of 

liberty. The rule adopted by the court of 

appeals only calls for a little more 

c e r t a i n t y  r e g a r d i n g  the n e c e s s i t y  of 

police action that may well have fatal 

consequences. It should be affirmed.

II. 1£ JUDGMENT BELOW SHOULD BE AFFIRMED 
'CAUSE THE MEMPHIS POLICY AND CUSTOM 
j ONE OF LIBERAL USE OF DEADLY FORCE 
HAT RE S U L T S  IN THE E X C E S S I V E  AND
h n e c e s s a r y  u s e  of s u c h  f o r c e  to s t o p
O N D A N G E R O U S  , FL E E I N G  FELONY SJS- 
E C T S ________________ _____________ ____
it-houah the court of appeals did not

f the c o n s t i t u t i o n sreach the question o



91

i ity of M e m p h i s ' s  p o l i c i e s  and customs 

regarding the use of deadly force, it was 

familiar with Memphis's exceptional record 

of shooting fleeing suspects, particularly 

blacks. See Hayes v. Memphis Police D e o t ^ ,  

571 F . 2d 3 57 ( 6th Cir. 1 978 ); W i l e y s

Mmiinhis Police D e p j ^ , 548 F.2d 1 247 (6th 

Cir. 1977); Qualls v. P a r i s h , 534 F.2d 690 

(6th Cir. 1976); Beech v. Mel a n c o n ,  465 

F.2d 425 ( 6th Cir. 1 972 ); s^e al_so 

Cunningham v. £llinoto_n, 323 F. Supp. 1072 

(W.D. Tenn. 1971) (three judge court); 

McK e n n a  v . City of M e m p h i s , 544 F. Supp. 

415 (W.D. Tenn. 1982) (shooting of brother 

officer in attempt to stop fleeing 

m i s d e m e a n a n t ) / 9 The ex cessiy eness of the 49

49 It is noteworthy that Memphis accounts for about 
30S of all the reported federal cases on this l^sue 
in the last 10 years. This is not suprising.The 
percentage of firearm discharges against nan- 
dangerous, fleeing suspects as compared to all 
firearm discharges by Memphis police is 50. 7*, J.a . 
100; R. 1 4 6 9, one of the highest in the country . S ^
i i 100 (11.3% in New York between 1971-1975; , W.A.
Geller & K.0. Karaies, Split Geccnd Cecisicn|^ 
Shootinqs of and by Chicago Police 6 i Chicago Law 
tnr'orcemenc Study Group 1981; U 1% between >9/



92

M emphis policies and customs in violation 

of the fourth amendment and the due 

p rocess clause, which a c c o u n t s  for this 

record, also provides an a l t e r n a t i v e  

ground for a f f i r m i n g  the judgment below. 

s m i h h  v. P h i l l i p s , 4 5 5  U . S .  209, 215 n . 6  

(1982); Unit ed States v. New York Tele­

phone C o . , 434 U . S .  159, 166 n . 8 (1977).

Even a s suming the appropriateness of 

using one's revolver to arrest a suspect, 

Memphis's policies, practices, and customs 

are excessive. Memphis arms its off i c e r s  

with "dum-dum'’ bullets and trains them to 

shoot at the target's torso. The i n d e ­

lible i m p r e s s i o n  upon the Memphis police

1978); M. Myer, Police Shootings at Minorities: Thg_ 
Case of Los Anqeles, Annals of Amer. Acaa._or 
(401 . 4 Soc. bei. 98T104 (1980) (between 1974-19/9, 
15? of all shootings at blacks, 9% of all shootings 
at Hispanics, and 9? of all shootings at whites) ; M. 
aiumberg, The Use of Deadly Firearms by Police 
Officers: The Impact or Indivlauals, Communities^ 
and Race M l  (Ph.U. Dissertation, 4.U; N. Y., AiDany, 
5ch7"o7 Crim. Justice Dec. 14, 1982) (7.8- in 
Atlanta between 1975-1978; between 1973-1974, 4.6- 
in the District of Colombia, 10% in Portland, Ore., 
but 53.1% in Indianapolis).



93

officer is that the policy of the de p a r t ­

ment is to shoot to kill. Moreover, 

d e p a r t m e n t a l  p o licies and cu s t o m s  -- 

including inadequate training in a l t e r n a ­

tives to deadly force and i n a d e q u a t e  

stress on the n e c e s s i t y  of e x h a u s t i n g  

other r e a s o n a b l e  a l t e r n a t i v e s  -- also 

encourage the quick resort to the use of 

deadly force wi t h o u t  a prop er effo rt to 

exhaust alternatives.

imnnrtant • h o we v

d e p a r t m e n t a l  policies that insulate 

o f ficers from any d i s c i p l i n e  for use of 

excessive force. In add i t i o n  to the 

e vidence in this record, the Court should 

c o n s i d e r  that before it in Brandon _v^ 

H o l t , No a 83-1622. There the ev i d e n c e  

established, and the district court found: 

that departmental p o licies i n s ulated the 

police d i r e c t o r  from any k n o w l e d g e  of 

misconduct by his subordinates; that there 

was a tacitly s a n c t i o n e d  code of silence



94

that p r o h i b i t e d  of f i c e r s  and supervisors 

alike from relating i n c i d e n t s  of m i s c o n ­

duct; that there was a p r o v i s i o n  in the 

contract with the union that p r o h i b i t e d  

r e a s s i g n m e n t  to a desk job for discipli­

nary reasons; and that the Civil Service 

C o m m i s s i o n ’s consistent failure to uphold 

dismissals for police misconduct r e sulted 

in a departmental decision not to attempt 

any d i s c i p l i n a r y  action. In short, the 

d i s c i p l i n a r y  s i t u a t i o n  was characterized 

by Director Chapman as "hopeless.'’ Brief 

far Petitioners in Mo. 83-1622 at 12-17.

The p r o x i m a t e  result of these 

p olicies is use of de a d l y  force in 

sit u a t i o n s  where it is u n n e c e s s a r y  and 

ex c e s s i v e  as a means of a p p r e h e n s i o n .  

This case provides an ad e q u a t e  i l l u s t r a ­

tion: The police experts tes t i f i e d  that

Hymon should have attempted to a p p rehend 

young Garner, who was only 30 to 40 feet 

rather than relying solely on hisaway ,



95

gun. A. 8 . Other illustrations abound.

In M c K e n n a , the o fficer who shot his 

fellow o f f i c e r  was firing at a fleeing 

misdemeanant; he was a known s hooter but 

had never been d i s c i p l i n e d  or retrained. 

5 4 4 F. Supp. at 417. In another instance, 

Memphis officers shot and killed a fleeing 

black teenager who had stolen a car, even 

though his a c c o m p l i c e  was al ready m  

custody and could have p r o v i d e d  i d e n t i ­

fication. The officer who shot never 

c o n s i d e r e d  any a l t e r n a t i v e s ,  not even 

giving chase down an empty dow n t o w n  

street. R. 344-45.
"In this case, City officials did set 

the pol i c i e s  involved ... training and 

s u p e r v i s i n g  the police force...,” LeA.te 

v . City of P r o v i d e n c e , 463 F. Supp. 585 , 

539 (D. R . I • 1973), exposing the city to

l i a b i l i t y  under Monell. Young Garner was 

shot pursuant to a policy '’which allows an 

officer to kill a fleeing felon rather



96

than run the risk of a l l o w i n g  him to 

escape apprehension." Garne^, 600 F. 2d at 

5 4 . A. 16. Hymon did no more than follow 

that policy, as he "was tau g h t . "  U .  at 

5 3 . a . 16. The ju d g m e n t  below should be

affirmed on this basis.

ITT M E M P H I S ' S  POLICY AUTHORIZING THE
1 D I S C R E T I O N A R Y  S H O O T I N G  Of

N O N D A N G E R Q U S ,
C R I M E  S U SPECTS V I O L A T E S  THE
F O U R T H  A M E N D M E N T  AND THE tt
P R O T E C T I O N  CLAUSE BEC A U S E  IT
I NVITES AND RES U L T S  IN RACIAL 
D I S C R I M I N A T I O N ^ _______________ —

The Memphis policy runs afoul of the 
Constitution in another fundamental way 
not discussed by the court of appeals: 
The breadth of the discretion that it 
confers upon individual officers is 
susceptible to racially motivated abuse; 
the materials in the offer of proof depict 
the policy "in actual operation, and the 
facts shown establish an administration 

with an evil eye and an unequal hand" 
against blacks.. Yick Wo v. Hopkins, 118



97

U.S. 3 5 6 , 373 -74 M  836 ) ; see also Furtnan

v. Georgia, 408 U.S. 238, 389 n.12 (1972)

(Burger, C. 0., dissenting) .
In Arlington Heights v. Metropolitan 

Housing Corp., 429 U.S. 252 (1977), the 
Court discussed what is necessary to prove 
that a particular policy or law is
discriminatory

n o t
the[ W a s h i n g t o n  v.3 Davis d o ® s 

reguire a plaintiff to prove that 
c h a l l e n g e d  action rested solely on 
rac i a l l y  d i s c r i m i n a t o r y  p u rposes. 
Rarely can it be said that a legisla­
ture or administrative body operating 
under a broad mandate made a decision 
motivated solely by a single concern, 
or even that a particular purpose was 
the "dominant'’ or "primary" o n e ----

D e t e r m i n i n g  w hether i n vidious
d i s c r i m i n a t o r y  p urpose was a m o t i ­
vating factor d e m a n d s  a s e n s i t i v e  
inquiry into such c i rcumstantial and 
direct evi d e n c e  of intent as may be 
available. The impact of the official 
action -- w hether it "bears more 
he a v i l y  on one race than another, 
W a s h i n g t o n  v. Davis, supra, at 2 2, 
48 L. Ed. 2d 597, 96 S.Ct. 2040 - - m a y  
pr o v i d e  an important starting point. 
Sometimes a clear pattern u n e x p l a i n ­
able on grounds other than race, 
emerges from the effect of the state 
action even when the g o v e r n i n g  
l e g i s l a t i o n  appears n e u t r a l  an U s  
face. Yick Wo v. Hop k i n s  , 118 U.b.



98

3 56 , 3 0 l.Ed. 220, 6 S.Ct. 1064
(1886)••••
The h i s t o r i c a l  b a c k g r o u n d  of the 
decision is one e v i d e n t i a r y  s o u r c ®» 
p a r t i c u l a r l y  if it rev e a l s  a series 
of off i c i a l  actions taken for 
invidious ouroose . • • •

Id. at 265-67.
Here, the Memphis policy authorizing 

use of deadly force against no n-danger ou s 

fleeing p r o p e r t y  crime s u s p e c t s  clearly 

••bears more he a v i l y  on one race than 

another" and is "unexplainable on grounds 

other than race." Id. Blacks accounted 

for 84.2 1S of the property crime suspects 

shot by M emphis police b e t w e e n  1969 and 

1974, although blacks comprise only 70. 5% 

of those arrested for property crimes. In 

contrast, the number of bl a c k  violent 

crime s u s p e c t s  who were shot at was 

p r o p o r t i o n a l  to the racial b r e a k d o w n  of 

violent crime arrests. R. 1589-92, 

1559-62, 1769-77. C o n t r o l l i n g  for d i f ­

ferential involvement in property crimes,



99

blacks were more than twice as likely to 

be shot at, four times more like ly to be 

w o u n d e d , and AOS more likely to be killed. 

J.A. 1 0 1 -0 2 . 5 0 The great d i s p a r i t y  in 

blacks shot by Memphis police o f f i c e r s  is 

largely a c c o u n t e d  for by the poli cy 

allowing the s h ooting of n o n - d a n g e r o u a  

fleeing felons. Between 1969 and 1976,

Memphis police killed 2.6 unarmed,

n o n - a s s a u l t i v e  blacks for each armed, 

assaultive white. O.A. 103-04.

The racially discriminatory nature of 

this pattern is confirmed by its roots in 

a policy giving o f f i c e r s  u n l imited 

discretion to use their own jud g m e n t  in 

d e t e r m i n i n g  when to shoot n o n - d a n g e r o u s  

fleeing p r o p e r t y  crime suspects. See.’

50 Evidence produced at the Wiley trial confirms this 
data. Although the Wiley statistical data covered a 
shorter period, 196TT?7l, it indicated that blacks 
were shot at disproportionately in relation to the 
racial breakdown of property crime arrests, and that 
this disproportion was significant at the .02 lev 1 
(less than two chances in 100 that the difference 
was due to chance). R. 1559-62, 1769-77.



100

e q R. 195-96. ̂  This consignment to the 

officer's discretion is "a ready mechanism 

for d i s c r i m i n a t i o n , ' ’ R a « e-- v_.---Gener-li

Motors C o r p . , 457 F. 2d 343, 359 (5th Cir. 

1972) (Title VII), " s u p p o r t i n g ]  the 

presumption of d i s c r i m i n a t i o n  raised by 

the s t a t i s t i c a l  s h o w i n g . ” C a s t a n e d a ^  

Part id a , 430 U.S. 482, 494 ( 1 977) (citing 

W a s h i n g t o n  v. D a v i s , 426 U.S. at 241).

This c o n c l u s i o n  is p a r t i c u l a r l y  

strong in this case. As d e t a i l e d  above, 

the Memphis Police D e p a r t m e n t  has a 

history of d i s c r i m i n a t i o n  that was

51 The mayor testified: "I'm not sure that every 
officer »ould react, for =xa»pie, to a fleeing 
burglar ... the same as another.... That doesn t 
mean, in my opinion, that every policeman will shoot 
an escaping person, felon, if they can't apprehend 
him. There may be seme people over there, I don t 
know who they are or anything else, but I belie e 
some would say 'I'm just not going to shoot that 
fellow. I believe we can catch him. I believe he
is catchstois # ’ 11 3* A« 11 5• ^

Similarly, Oirector Chapman testified that: "we 
rest our case in the judgment of [the] police
officer___  I think that you would find more cases
of escaping burglars who in effect success ful-y 
escaped and who did not have deadly force used 
against them." 3*A. 129-29.

«



101

0

I>

unabated at the time of the Garner 

shooting. Thus, the consequences of the 

unlimited discretion to shoot are predict­

able: When shootings by Memphis officers

are most likely to be in response to bona 

fide safety concerns, i .e . , against 

violent crime suspects, there is no 

disparate racial result. But when

shootings are not motivated by need and

are optional, see n.51, s u p j ^ , blacks
52

are shot at disproportionately.

The fourth amendment's and equal 

protection clause's concerns coincide in 

this case. The fourth amendment was 

adopted to control the danger of abuse

52 At minimum, the”proffer establishes a prima‘
case, shifting the burden to the city to rebut. 
Castaneda, 430 U.S. at 493-96. The district courts 
distortions, suppositions, and attack on the bias 
of respondent's expert cannot suf. ice to fill £is 
"evidential oap." Id. at 499. Nor does the fact 
that Hymon was black "dispel the presumption of 
purposeful discrimination." Id. In 1 9 7 4 Hymon was 
only one of a small minority of brack officers in 
department where racism was well entrenched; in the 
police director's words, "the black officers trie
to out red-neck the white officers---  J-A. 137.
See Castaneda, 430 U.S. at 499.



102

inherent in broad, dis c r e t i o n a r y  police

powers
A central concern ... has been to 
assure that an individual's r e a s o n ­
able expectation of privacy is not 
subject to arbitrary invasion solely 
at the unfettered di scretion of 
officers in the field.

Brown v. T e x a s , 443 U.S. 47, 51 (1979).

The amendment was a reaction to the

English and colonial experience with

general warrants and writs of assistance, 

which conferred too much discretion on the

executing officer: "a discretionary power

to search wherever their suspicions 

nay chance to fall," Wilkes v. Wood, 10 

Howell St. Tr. 1153, 1167 (1973); "a power 

that places the liberty of every man in 

the hands of every petty officer." 2 l. 

Wroth 4 H. Zobel (eds.), LEGAL PAPERS OF 

JOHN ADAMS 141-42 (1965) (reporting Otis's 

argument against the writs of assistance).

Although the warrant requirement is 
the fourth amendment's primary device for



103

* ■

%

I

I

limiting police discretion, the Court has 

recognized and implemented this principle 

in a variety of other contexts. See, l i S i ’ 

n n n n v an v. Dewey, 452 U.S. 594, 599, 601 , 

605 (1981); n » l a»are v. Prouse, 440 U.S. 

at 654-55, 661, 662; Brown v. Texas> 4 4 3  

U.S. at 51; Beck v. Ohio, 379 U.S. 89, 97 

(1964). Yet, both the Memphis policy and 

the Tennessee common law fleeing felon 

rule place life itself within the unguided 

discretion of each and every police

officer.
[T ] o insist upon neither an a p p r o ­
priate factual basis ... nor upon- 
some other substantial and objectiv 
standard or rule to govern h 
exercise of discretion would invite 
intrusions upon constitut i o n a l l y  
guaranteed rights....

0 elaware Prouse, 440 U.S at 6 6 1

(quoting Terry v . Ohio , 392 U.S. at 22).

This has surely been the experience in

Memphis, where police exercise their 

discretion differentially based on the

race of the suspect.



- 104

Thus, the court of appeals was 

correct in imposing an objective standard 

based on danger and need to limit police 

discretion to shoot fleeing suspects. The 

totally discretionary nature of the 

authority to shoot given Memphis police 

officers, resulting in dispro portionate 

numbers of nonthreatening blacks being 

shot, is at war with the basic notion of 

our constitutional system. -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...." Tick Wo, 113 

U.S. at 370.

CONCLUSION

Far the foregoing reasons, the 

judgment of the court of appeals should be

a f firmed .



105

Respectfully submitted,

3. LeVONNE CHAMBERS 
STEVEN L. WINTER *

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

WALTER L. BAILEY, OR.
Suite 901, Tenoke Building 
161 Oefferson Avenue 
Memphis, Tennessee 38103

Attorney for Respondent-Appellee

* Counsel of Record

Copyright notice

© NAACP Legal Defense and Educational Fund, Inc.

This collection and the tools to navigate it (the “Collection”) are available to the public for general educational and research purposes, as well as to preserve and contextualize the history of the content and materials it contains (the “Materials”). Like other archival collections, such as those found in libraries, LDF owns the physical source Materials that have been digitized for the Collection; however, LDF does not own the underlying copyright or other rights in all items and there are limits on how you can use the Materials. By accessing and using the Material, you acknowledge your agreement to the Terms. If you do not agree, please do not use the Materials.


Additional info

To the extent that LDF includes information about the Materials’ origins or ownership or provides summaries or transcripts of original source Materials, LDF does not warrant or guarantee the accuracy of such information, transcripts or summaries, and shall not be responsible for any inaccuracies.

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