Defendant's Response to Plaintiffs' Memorandum of Law Pursuant to the Court's Order of April 29, 1980

    IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF TENNESSEE 

WESTERN DIVISION

CLEAMTREE GARNER, et al.,

Plaintiff,
V.
MEMPHIS POLICE DEPARTMENT, et al.. 

Defendant.

NO. C-75-145

DEFENDANT'S RESPONSE TO PLAINTIFFS' MEMORANDUM 
OF LAW PURSUANT TO THE COURT'S ORDER OF APRIL 29, 1980

In his latest Memorandum filed in June, 1980, plaintiffs' 
attorney sets forth five (5) propositions for the Court's consider­
ation. They deal with the constitutionality of the City's deadly 
force policy as it relates to unarmed fleeing felons; the constitu­
tionality of the use of "Dum Dum" bullets; and the constitutionali­
ty of the policies and customs of the City. Along with the Memoran­
dum, plaintiff tenders an offer of proof.

The real questions before the Court at this time are; (1) Is a 
municipality's use of deadly force under Tennessee law to capture 
allegedly non-dangerous felons fleeing from non-violent crimes con­
stitutionally permissible? (2) Is the municipality's use of hol­
low point bullets constitutionally permissible? and (3) Is addi­
tional proof necessary for the Court to make a determination?

In remanding this case to the trial court, the Court of 
Appeals posed four questions, one of which dealt with whether a 
municipality has a qualified privilege or immunity based on good 
faith under Monell v. Department of Social Services, 436 U.S. 658 
(1978) . This was answered in Owens v. City of^ Independence,
_____ U.S. _____, 63 L. Ed.2d 672 (1980). The Supreme Court has
said that the City does not have such a privilege.

The next question is whether the City's use of deadly force 
under the Tennessee lav; is constitutionally permissible.

The Tennessee statute (T.C.A. 40-808) relied upon by the City 
has been held to be constitutional. Cunningham v. Ellington, 
323 F. Supp. 1072 (W.D. Tenn. 1971); Wiley v. Memphis Police
Department, 548 F.2d 1247, 1251, cert, denied, U.S. 822 (1977);



Beech v. Melanon, 465 F.2d 425, cert, denied, 409 U.S. 1114 
(1973). Testimony at the trial was that the guideline for the 
City's deadly force policy was T.C.A. 40-808 and that the City's 
policy was more restrictive than the statute.

VJith regard to the statute's constitutionality, relative to 
unarmed fleeing felons, the Court in V?iley addresses itself to the 
opinion of Eighth Circuit in Mathis v. Schnarr, 547 F.2d 1007 
(CA. 8, 1976) which dealt with the constitutionality of a Missouri 
statute similar to Tennessee's as it relates to the apprehension of 
fleeing felons suspected of a non-violent felony whom the officer 
does not reasonably believe will use force against the officer or 
others. In Mathis the Court held the statute to be unconstitu­
tional since there was no threat to the officer or others. No claim 
was being made that the statute was unconstitutional where there is 
a threat to the officer's life or others. The dissent which was 
adopted by the Sixth Circuit in Wiley is strongly critical of the 
majority stating that a proper balance must be made between the 
state's interest and that of the fleeing felon, and that any con­
flict in these interests should be resolved, by the legislature and 
not the Courts. This is precisely what Judge Brown said in his 
opinion in Cunningham v. Ellington, supra, at page 1075.

Indeed as far back as Rensaw v. State, 70 Tenn.
720 (1879) , the Tennessee Supreme Court sug­
gested that in view of the increase of crimes 
defined as felonies, the rule of law allowing 
officers to shoot at escaping persons though to 
be felons should be re-examined. This, how­
ever, is a policy question for the Tennessee 
legislature or perhaps the Tennessee courts 
and not for the federal courts in the guise of 
constitutional adjudication (Emphasis Ours).

Plaintiff contends that the use of deadly force to apprehend
0

one who is unarmed amounts to punishment. Again, in Cunningham v.
Ellington, supra, at page 1075, the Court in dealing with an
alleged Eighth Amendment violation said:

. . . and the short answer to plaintiff's con­
tention is that we simply are not dealing with 
punishment.

Much has been said in plaintiffs' Memorandum maintaining that 
Garner was unarmed and not a threat to anyone. It must be remem­
bered, however, that the Court concluded as the finder of facts 
that the officer could not be certain whether Garner was armed at

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the time and further that he had reason to believe under all the 
circumstances that an accomplice may be involved, and that accom­
plice may be armed. Considering all these factors, this was more 
than simply an unarmed fleeing felon case at the time the officer 
was called upon to act. If the officer has to wait each time to be 
certain the fleeing party is unarmed or that nothing more than a 
property crime has been committed before he can use deadly force 
then there is a potential danger to the officer as well as the pub­
lic .

Another issue raised by plaintiff is whether the City's deadly
force policy violates the equal protection clause because it is
racially discriminatory. In Wiley the same issue was raised and
pursued as to all defendants which included the City of Memphis and
the Court said at page 1254:

The District Court held with respect to plain­
tiff's claim of racial discrimination that 
"plaintiff has failed to persuade the court 
that under the circumstances of this case 
defendants have discriminated against her or 
against her son because of their race."
Nor did the Court find a denial of equal pro­
tection when it said:
No racial animus or basis is shown to motivate 
the policy involved. Both white and black 
fleeing felons have been shown by plaintiff's 
own proof to have been fired upon or shot by 
Memphis police as a matter of last resort where 
otherv/ise arrest cannot be reasonably accom­
plished and escape is inevitable, even in the 
case of so-called property crimes.
In our opinion these findings of fact are sup­
ported by substantial evidence and are not 
clearly erroneous.
As to racial impact, the Supreme Court in 
Washington v. Davis, 426 U.S. 229, 239,
96 S. Ct. 2040, 2047, 48 L. Ed. 2d 597 (1976) 
stated:
. . . [0]ur cases have not embraced the propo­
sition that a law or other official act, with­
out regard to whether it reflects a racially 
discriminatory purpose, is unconstitutional 
solely because it has a racially dispropor­
tionate impact.

In the case at bar, this issue was not pursued by counsel for 
plaintiff.

It is difficult to ascertain the difference in the constitu-
0

tionality of a statute as it relates to individuals as opposed to a 
municipality. If T.C.A. 40-808 is constitutional and the officers

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and officials had a right to rely upon it then why would not the 
City have the same right. As pointed out in our previous memoran­
dum, the Court in Wiley referring to the City as well as others said 
at page 1254:

We are of the opinion further that MPD, the 
City, the Mayor, and the former Mayor, and the 
Chief of Police had the same right to rely on 
the law of Tennessee and the decisions of this 
Court and the decision of the three-Judge Court 
in formulating their policies. Also, they 
would rely on the presumption that the Tennes­
see statute was constitutional and on the fact 
that no court at that time had ever held that 
statute or a similar statute to be unconstitu­
tional. (Emphasis Ours)

The proof in the case showed and the Court so found that the 
use of Dum Bum bullets was not implemented for the purpose of in­
flicting extensive punishment and did not violate standards of 
civilized conduct so as to shock the conscience of the Court. 
Rochin V. California, 343 U.S. 165 (1952). This was pointed out in 
the Court's Order of February 29, 1980.

In interpreting the purpose of the questions posed by the 
Court of Appeals in this cause for consideration in light of 
Monell, if this Court finds no constitutional violation in connec­
tion with the City's use of deadly force under Tennessee law and 
its use of hollov; point bullets, then there is no need to go further 
and consider the fourth question dealing v/ith "policy or custom . 
In any event this Court retained jurisdiction over the City of 
Memphis pursuant to 28 US.C. § 1331 and the Fourteenth Amendment 
and at the conclusion of the trial ruled;

VIII. The policies of the Memphis Police 
Department which authorizes the use of fire­
arms to apprehend fleeing felons come within 
the general ambit of the Tennessee statute 
(T.C.A. 40-808) . The training program of the 
Memphis Police Department which incorporates 
some of the methods, practices and procedures 
used by other police departments was at least 
adequate in respect to apprehension of resist­
ing or fleeing felons. The City of Memphis and 
the Memphis Police Department are not liable to 
plaintiff on this basis asserted.

Why should the case against the City be reopened on the ques­
tion of policy or custom? In Wiley the Court found at page 1249:

The facts as found by the Distrct Judge, how­
ever, were that these policies, practiced, 
customs and usages were authorized by the 
Legislature of Tennessee in its enactment more 
than one hundred years ago, of the present Ian-



guage of T.C.A. § 40-808, hereinabove set 
forth. This language appeared as Section 5040 
of the Tennessee Code of 1858, the first offi­
cial code of Tennessee, and embodied the common 
law of that State. Love v. Bass,
l45 Tenn. 522, 529, 238 S.W.2d 94 (1921);
Reneau v. State, 70 Tenn. 720 (1879).

It is also interesting to note that the Court of Appeals in 
this case refers to the appellate record in Wiley and certain sta­
tistics on the question of "policy and custom". If the Court in 
V̂ iley did not see fit to disturb the trial court's findings rela­
tive to policies and customs based on City of Memphis statistics, 
then certainly there would be no justification for disturbing the 
findings in this case which likewise involves the City of Memphis.

There is no need to reopen the case to permit plaintiff to of­
fer additional proof. He should not have that right in view of the 
fact the case has already been considered against the City. Fur­
thermore, no proof is needed on the purely legal question of the 
constitutionality of use of deadly force under Tennessee law. The 
Dum Dum bullet issue was dealt with in detail at the trial. Plain­
tiff had every opportunity to present proof which involved the City 
of Memphis. Much of plaintiff's offer of proof seems to go to cus­
tom or policy, which at this point is of no concern to the Court 
because we do not get to that question.

In conclusion, defendants respectfully submit that the Court's 
Order of February 29, 1980, should be reinstated.

CLIFFORD PIERCE, City Attorney 
City Hall, Room 314 
125 N. Mid-America Mall 
Memphis, Tennessee 38103

ENRY l 7 KLE“;HENRY L/ KLEIN, Staff Attorney 
City of Memphis 
2108 First Tennessee Bldg. 
Memphis, Tennessee 38103 
(90]) 523-2363
ATTORNEYS FOR DEFENDANTS

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CERTIFICATE OF SERVICE
I, HENRY L. KLEIN, hereby certify that a copy of the foregoing 

pleading has been mailed, postage prepaid, to Mr. Steven L. Winter, 
Suite 2030, 10 Columbus Circle, New York, New York 10019, and Mr. 
Walter Lee Bailey, Jr., Suite 901, 161 Jefferson Avenue, Memphis, 
Tennessee 38103, this the day of , 1980.

HENRY

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