Memorandum of Points and Authorities of Plaintiff Cleamtee Garner

    July 9, 1976

Clerk,
United States District Court 
Western District of Tennessee 
Federal Building 
Memphis, Tennessee 38103

RE: Garner v. Memphis Police Department
No. C-75-145______________________

Dear Sir or Madam:
I am enclosing a corrected copy of the 

"Memorandum of Points and Authorities of Plaintiff 
Cleamtee Garner", filed in the above-mentioned 
case. A corrected copy is being served also upon 
opposing counsel on this date.

Respectfully submitted.

Drew S. Days, III 
Attorney for Plaintiff

jjSD/gr 
Enel.
cc: Henry L. Klein, Esq.

1 0  C O L  U M R U S  C I R C L E 5 8 6 - 8  3 9 7 NEW YORK 10 0 19



In The
UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TENNESSEE

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

Plaintiff,
vs.

MEMPHIS POLICE DEPARTMENT, City of Memphis, 
Tennessee; WYETH CHANDLER, Mayor of 
Memphis; JAY W. HUBBARD, Director of 
Police of Memphis; and E.R. HYMON, Police 
Officer of the City of Memphis,

Defendants.

Civil Action 
No. C-75-145

Memorandum of Points and Authorities 
of Plaintiff Cleamtee Garner

Statement of Facts
On Thursday, October 3, 1974 at approximately 11:00 P.M. 

the Memphis Police Department received a telephone call reporting 
a burglary in progress in the vicinity of 737 Vollintine in the 
City of Memphis, Tennessee. Officers Elton K. Hymon and Leslie 
B. Wright of the Memphis Police Department were dispatched to the 
scene to investigate. Upon their arrival at 737 Vollintine,
Officer Hymon was informed by the resident at 737 that the burglary 
was in progress at 739 Vollintine. The residence at 739 runs 
from front to back in a north-south direction. Officer Hymon 
proceeded along the residence at 739 Vollintine on its west side 
from north to south. Officer Wright proceeded on the eastern side 
of the residence from north to south. Both officers had their 
weapons drawn and flashlights illuminated as they moved toward the 
rear of the residence.

Hymon reached the rear corner (southeast) of the residence.



and saw a figure run from the central area of the residence
midway between the east and west corners of the residence) toward

high
an approximately six-foot/chain-link fence which ran across the 
entire rear portion of the residence. Officer Hymon directed 
his flashlight beam on the figure revealing the decedent, Edward 
Eugene Garner, who had reached the base of the chain-link fence. 
Garner was at that time 15 years old, approximately 5 feet 4 inches 
tall and of slight build. Officer Hymon yelled at Garner to halt, 
identifying himself as a police officer. Garner then paused at 
the fence and turned to Hymon, at which point Hymon could see that 
the figure was an unarmed black male. When he observed Garner at 
the fence. Officer Hymon was at the southwest corner of the resi­
dence approximately 20-25 feet from where Garner stood at the 
chain-link fence. A 2^-3 foot chicken-wire fence, running from 
the rear of the residence at 739 Vollintine to the chain-link 
fence in a north-south direction, was between Hymon and the 
backyard area where Garner stood. Officer Hymon, who is 6 feet 
4 inches tall and was in good physical condition at the time made 
no attempt to move toward Garner in order to apprehend him as the 
latter stood at the bottom of the chain-link fence. Instead,
Hymon turned away from Garner to alert his partner, Wright, of 
Garner's whereabouts. While Hymon looked away. Garner began 
climbing the fence. Hymon returned his attention to Garner and 
fired his .38 calibre revolver once,wounding Garner in the head. 
Upon being wounded. Garner's body fell upon the top of the chain- 
link fence, his head and part of his torso on the south side of 
the fence; the other portion of his torso and his legs fell to 
the north side. A few seconds after Garner was shot. Officer 
Wright arrived at the southeast corner of the residence where he 
was able to see Garner's body draped on the fence and Officer 
Hymon moving from the southwest corner toward the fence. Officer

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— — ^ --------------------------—  -  - - -   ̂ -_______________________________  *



Wright then went to his patrol car and summoned an ambulance. 
Officer Hymon removed Garner's body from the fence.

An ambulance arrived and transported Garner to John Gaston 
hospital where emergency surgery was performed in an attempt to 
save his life. Garner died, however, during surgery.

Garner was shot by a Remington 125 grain semi-jacketed 
hollow point bullet issued to Officer Hymon by the Memphis Police 
Department. This bullet is recognized by authorities to possess 
one of the greatest potentials of any for causing extensive 
damage to the body upon impact. Its selection by the Memphis 
Police Department was based primarily upon this characteristic. 
Memphis Police Officers are trained to shoot at the torso area 
of the body to prevent flight of a felon, are not given any 
training in ways in which less vital parts of the body could be 
shot to incapacitate a fleeing felon and are not schooled in the 
alternatives to lethal force they might employ to prevent the 
flight of a felon.

Issues Involved
1. Whether defendant E.R. Hymon acted unreasonably 

in violation of Garner's federal right to due process 
of law under the Fifth and Fourteenth Amendments and 
to be free of violations of his Fourth and Eighth 
Amendment rights by resorting to lethal force against 
him when he could have been apprehended using means 
short of lethal force.

2. Whether defendant E.R. Hymon acted unreasonably 
in violation of Garner's state rights under the laws 
and Constitution of Tennessee and specifically under 
T.C.A. § 40-808 and by resorting to lethal force 
against him when he could have been apprehended 
using means short of lethal force.

3 -



6 .

Whether the defendant's Memphis Police Department,
City of Memphis, Hubbard and Chandler violated 
Garner's federal right to Fifth and Fourteenth Amend­
ment due process of law and to rights under the Fourth 
and Eighth Amendments by authorizing issuance to Hymon 
of ammunition that is known to have one of the greatest 
potentials of any for damage to the body when a Memphis 
Police officer's duty is to apprehend, not summarily 
execute, a fleeing felon.

Whether the defendants Memphis Police Department,
City of Memphis, Hubbard and Chandler violated Garner's
state right under the laws and Constitution of Tenneessee and specifically under T.C.A. § 40-808 

/’Ey authorizing issuance to Hymon of ammunition that is
known to have one of the greatest potentials of any for
damage to the body when a Memphis Police officer's duty
is to apprehend, not summarily execute, a fleeing felon.

Whether the defendants Memphis Police Department, 
City of Memphis, Hubbard and Chandler violated Garner's 
federal rights to Fifth and Fourteenth Amendment due 
process of law and to rights under the Fourth and Eighth 
Amendments by a) training Officer Hymon to shoot only 
the torso area of the body to prevent flight of a felon 
and not to shoot less vital parts of the body to in­
capacitate a fleeing felon and b) not training Officer 
Hymon in the alternatives to lethal force that might be 
employed to prevent the flight of a felon.

Whether the defendants Memphis Police Department, 
City of Memphis, Hubbard and Chandler violated Garner's 
state rights under the laws and Constitution of Tennessee 
and specifically under T.C.A. § 40-808 by a) training 
Officer Hymon to shoot only the torso area of the body to

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m m m



prevent flight of a felon and not to shoot less vital 
parts of the body to incapacitate a fleeing felon and 
b) not training Officer Hymon in the alternatives to 
lethal force that might be employed to prevent the flight 
of a felon.

Statement of Law

This suit does not represent an attack upon the constitu­
tionality of Tennessee Statute Annotated 40-808 which permits 
the use of lethal force by police officers to apprehend fleeing 
felons, an issue presently pending before the United States Court 
of Appeals for the Sixth Circuit in Wiley v. Memphis Police Dept. 
#75-2321.' Rather, at issue is whether the resort to lethal 
force by Officer Hymon under the circumstances was reasonable.
To the extent that it was not, his conduct violated Garner's 
right to be free from summary punishment. Screws v. United States,
325 U.S. 91 (1945), from unreasonable seizure of his body,
Jenkins v. Averett. 424 F.2d 1338 (4th Cir. 1970); and from cruel 
and unusual punishment, Weems v. United States, 217 U.S. 349 
(1910). See generally^ Paust, "Constitutional Prohibitions of 
Cruel, Inhumane or Unnecessary Death, Injury or Suffering During 
Law Enforcement Process," 2 HASTINGS CONST. L.Q. 873. State 
law which requires the exhaustion of non-lethal alternatives 
before resorting to lethal force would also have been violated. 
Scarborough v. State, 76 S.W. 2d 106 (1934).

Insofar as the other defendants are concerned, their liabi­
lity derives from plaintiff's contention that both federal law 
and state law, as presently interpreted, permit the resort to 
lethal force to apprehend, not summarily execute, fleeing felons. 
To the degree that these defendants provided officer Hymon with 
ammunition that would greatly increase the likelihood that death

-  5 -



would in fact occur when he fired his gun, they violated the
principle that lethal force should be used to apprehend, not
kill. Similarly, in failing to train him in ways to use lethal

theyforce against non-vital areas of the body,/Enhanced the likelihood 
that he would cause death as in this case. Furthermore, their 
failure to train Hymon in non-lethal alternatives for apprehending 
fleeing felons increased the likelihood that his first resort 
would be his service revolver. In sum, they provided Hymon with 
the ammunition and the inclination to execute, not apprehend. 
Garner. Their malfeasance or non-feasance constituted the gross­
est violation of Garner's federal constitutional and Tennessee 
state rights.

I Respectfully submitted.

JACK GREENBERG ()
CHARLES STEPHEN RALSTON 
DREW S. DAYS, III 

10 Columbus Circle 
New York, New York 10019

WALTER LEE BAILEY, JR. 
D'ARMY BAILEY

Suite 901 Tenoke Building 
161 Jefferson Avenue 
Memphis, Tennessee 38103

Attorneys for Plaintiff

CERTIFICATE OF SERVICE

This is to certify that on this 8th day of July, 1976, I 
served a copy of the foregoing "Points and Authorities" upon 
Counsel for defendants, Henry L. Klein, Esq., City of Memphis, 
Suite 3500, 100 North Main Bldg., Memphis, Tennessee 38103, by 
United States mail, special delivery, postage prepaid.

1,
Attorney for Plainj:iffTnJT

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In The
UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TENNESSEE

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

Plaintiff,
vs.

MEMPHIS POLICE DEPARTMENT, City of Memphis, 
Tennessee; WYETH CHANDLER, Mayor of 
Memphis; JAY W. HUBBARD, Director of 
Police of Memphis; and E.R. HYMON, Police 
Officer of the City of Memphis,

Defendants.

Civil Action 
No. C-75-145

Memorandum of Points and Authorities 
of Plaintiff Cleamtee Garner

Statement of Facts
On Thursday, October 3, 1974 at approximately 11:00 P.M. 

the Memphis Police Department received a telephone call reporting 
a burglary in progress in the vicinity of 737 Vollintine in the 
City of Memphis, Tennessee. Officers Elton K. Hymon and Leslie 
B. Wright of the Memphis Police Department were dispatched to the 
scene to investigate. Upon their arrival at 737 Vollintine,
Officer Hymon was informed by the resident at 737 that the burglary 
was in progress at 739 Vollintine. The residence at 739 runs 
from front to back in a north—south direction. Officer Hymon 
proceeded along the residence at 739 Vollintine on its west side 
from north to south. Officer Wright proceeded on the eastern side 
of the residence from north to south. Both officers had their 
weapons drawn and flashlights illuminated as they moved toward the 
rear of the residence.

Hymon reached the rear corner (southeast) of the residence.

_____________  '  ‘ ] f - . l  J* V •• f #



and saw a figure run from the central area of the residence
midway between the east and west corners of the residence) toward

high
an approximately six-foot/chain-link fence which ran across the 
entire rear portion of the residence. Officer Hymon directed 
his flashlight beam on the figure revealing the decedent, Edward 
Eugene Garner, who had reached the base of the chain-link fence. 
Garner was at that time 15 years old, approximately 5 feet 4 inches 
tall and of slight build. Officer Hymon yelled at Garner to halt, 
identifying himself as a police officer. Garner then paused at 
the fence and turned to Hymon, at which point Hymon could see that 
the figure was an unarmed black male. When he observed Garner at 
the fence. Officer Hymon was at the southwest corner of the resi­
dence approximately 20-25 feet from where Garner stood at the 
chain-link fence. A foot chicken-wire fence, running from
the rear of the residence at 739 Vollintine to the chain-link 
fence in a north-south direction, was between Hymon and the 
backyard area where Garner stood. Officer Hymon, who is 5 feet 
4 inches tall and was in good physical condition at the time made 
no attempt to move toward Garner in order to apprehend him as the 
latter stood at the bottom of the chain-link fence. Instead,
Hymon turned away from Garner to alert his partner, Wright, of 
Garner's whereabouts. While Hymon looked away. Garner began 
climbing the fence. Hymon returned his attention to Garner and 
fired his .38 calibre revolver once,wounding Garner in the head. 
Upon being wounded. Garner's body fell upon the top of the chain- 
link fence, his head and part of his torso on the south side of 
the fence; the other portion of his torso and his legs fell to 
the north side. A few seconds after Garner was shot. Officer 
Wright arrived at the southeast corner of the residence where he 
was able to see Garner's body draped on the fence and Officer 
Hymon moving from the southwest corner toward the fence. Officer

-  2 -



Wright then went to his patrol car and suminoned an ambulance. 
Officer Hymon removed Garner's body from the fence.

An ambulance arrived and transported Garner to John Gaston 
hospital where emergency surgery was performed in an attempt to 
save his life. Garner died, however, during surgery.

Garner was shot by a Remington 125 grain semi-jacketed 
hollow point bullet issued to Officer Hymon by the Memphis Police 
Department. This bullet is recognized by authorities to possess 
one of the greatest potentials of any for causing extensive 
damage to the body upon impact. Its selection by the Memphis 
Police Department was based primarily upon this characteristic. 
Memphis Police Officers are trained to shoot at the torso area 
of the body to prevent flight of a felon, are not given any 
training in ways in which less vital parts of the body could be 
shot to incapacitate a fleeing felon and are not schooled in the 
alternatives to lethal force they might employ to prevent the 
flight of a felon.

Issues Involved
1. Whether defendant E.R. Hymon acted unreasonably 

in violation of Garner's federal right to due process 
of law under the Fifth and Fourteenth Amendments and 
to be free of violations of his Fourth and Eighth 
Amendment rights by resorting to lethal force against 
him when he could have been apprehended using means 
short of lethal force.

2. Whether defendant E.R. Hymon acted unreasonably 
in violation of Garner's state rights under the laws 
and Constitution of Tennessee and specifically under 
T.C.A. § 40-808 and by resorting to lethal force 
against him when he could have been apprehended 
using means short of lethal force.

3 -



Whether the defendant’s Memphis Police Department,
City of Memphis, Hubbard and Chandler violated 
Garner's federal right to Fifth and Fourteenth Amend­
ment due process of law and to rights under the Fourth 
and Eighth Amendments by authorizing issuance to Hymon 
of ammunition that is known to have one of the greatest 
potentials of any for damage to the body when a Memphis 
Police officer's duty is to apprehend, not summarily 
execute, a fleeing felon.

Wliether the defendants Memphis Police Department,
City of Memphis, Hubbard and Chandler violated Garner's
state right under the laws and Constitution of Tenneessee _and specifically under T.C.A. § 40-808 

/by authorizing issuance to Hymon of ammunition that is
known to have one of the greatest potentials of any for
damage to the body when a Memphis Police officer's duty
is to apprehend, not summarily execute, a fleeing felon.

Whether the defendants Memphis Police Department, 
City of Memphis, Hubbard and Chandler violated Garner's 
federal rights to Fifth and Fourteenth Amendment due 
process of law and to rights under the Fourth and Eighth 
Amendments by a) training Officer Hymon to shoot only 
the torso area of the body to prevent flight of a felon 
and not to shoot less vital parts of the body to in­
capacitate a fleeing felon and b) not training Officer 
Hymon in the alternatives to lethal force that might be 
employed to prevent the flight of a felon.

Whether the defendants Memphis Police Department, 
City of Memphis, Hubbard and Chandler violated Garner's 
state rights under the laws and Constitution of Tennessee 
and specifically under T.C.A. § 40-808 by a) training 
Officer Hymon to shoot only the torso area of the body to

_ 4 _



flight of a felon and not to shoot less vital 
parts of the body to incapacitate a fleeing felon and 
b) not training Officer Ilymon in the alternatives to 
lethal force that might be employed to prevent the flight 
of a felon.

Statement of Law

suit does not represent an attack upon the constitu­
tionality of Tennessee Statute Annotated 40-808 which permits 
the use of lethal force by police officers to apprehend fleeing 
felons, an issue presently pending before the United States Court 
of Appeals for the Sixth Circuit in Wiley v. Memphis Police Dept. 
#75-2321.' Rather, at issue is whether the resort to lethal 
force by Officer Hymon under the circumstances was reasonable.
To the extent that it was not, his conduct violated Garner's 
right to be free from summary punishment. Screws v. United States, 
325 U.S. 91 (1945), from unreasonable seizure of his body,
Jenkins v. Averett, 424 F.2d 1338 (4th Cir. 1970); and from cruel 
and unusual punishment, Weems v. United States, 217 U.S. 349 
(1910). See generally, Paust, "Constitutional Prohibitions of 
Cruel, Inhumane or Unnecessary Death, Injury or Suffering During 
Law Enforcement Process," 2 HASTINGS CONST. L.Q. 873. State 
law which requires the exhaustion of non-lethal alternatives 
before resorting to lethal force would also have been violated. 
Scarborough v. State, 76 S.W. 2d 106 (1934).

Insofar as the other defendants are concerned, their liabi­
lity derives from plaintiff's contention that both federal law 
and state law, as presently interpreted, permit the resort to 
lethal force to apprehend, not summarily execute, fleeing felons.
To the degree that these defendants provided officer Hymon with 
ammunition that would greatly increase the likelihood that death

-  5 -



I

i

would in fact occur when he fired his gun, they violated the
principle that lethal force should be used to apprehend, not
kill. Similarly, in failing to train him in ways to use lethal

they
force against non-vital areas of the body,/fenhanced the likelihood 
that he would cause death as in this case. Furthermore, their 
failure to train Hymon in non-lethal alternatives for apprehending 
fleeing felons increased the likelihood that his first resort 
would be his service revolver. In sum, they provided Hymon with 
the ammunition and the inclination to execute, not apprehend. 
Garner. Their malfeasance or non-feasance constituted the gross 
est violation of Garner's federal constitutional and Tennessee 
state rights.

' Respectfully submitted,

JACK GREENBERG 7)
CHARLES STEPHEN RALSTON 
DREW S. DAYS, III 

10 Columbus Circle 
New York, New York 10019

WALTER LEE BAILEY, JR.
D'ARMY BAILEY
Suite 901 Tenoke Building 
161 Jefferson Avenue 
Memphis, Tennessee 38103

Attorneys for Plaintiff 

CERTIFICATE OF SERVICE

This is to certify that on this 8th day of July, 1976, I 
served a copy of the foregoing "Points and Authorities" upon 
Counsel for defendants, Henry L. Klein, Esq., City of Memphis, 
Suite 3500, 100 North Main Bldg., Memphis, Tennessee 38103, by
United States mail, special delivery, postage prepaid.

,vV(VtW A.  K
Attorney for Plaiqf:iffiin J T

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