Tennessee v. Garner Brief for Appellee-Respondent
Public Court Documents
October 1, 1984
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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