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