Brief

    INDEX
Page

Table of Authorities................................... ii - iii
Statement of Issues Presented for Review ................  1
Statement of the Case ...................................  2
Statement of the F a c t s ...................................  5

ARGUMENT
I. DOES A MUNICIPALITY HAVE A SIMILAR QUALIFIED 

IMMUNITY OR PRIVILEGE BASED ON GOOD FAITH 
UNDER MONELL? .................................  14

II. IS A MUNICIPALITY'S USE OF DEADLY FORCE UNDER
TENNESSEE LAW TO CAPTURE ALLEGEDLY NONDANGEROUS 
FELONS FLEEING FROM NONVIOLENT CRIMES CONSTI­
TUTIONALLY PERMISSIBLE UNDER THE FOURTH, SIXTH,
EIGHTH AND FOURTEENTH AMENDMENTS? ...............  15

III. IS THE MUNICIPALITY'S USE OF HOLLOW POINT 
BULLETS CONSTITUTIONALLY PERMISSIBLE UNDER 
THESE PROVISIONS OF THE CONSTITUTION?...........  21

IV. IF THE MUNICIPAL CONDUCT IN ANY OF THESE RESPECTS 
VIOLATES THE CONSTITUTION, DID THE CONDUCT FLOW 
FROM A "POLICY OR CUSTOM" FOR WHICH THE CITY IS 
LIABLE IN DAMAGES:   22

CONCLUSION.........................................   23
CERTIFICATE OF SERVICE . .................................. 24



Table of Authorities

Cases;
Beech v. Melancon, 465 F.2d 425

(6th Cir. 1972) ................
Campbell v. City of Memphis,

(DC Tenn No. 79-2508,
March 25, 1981) ................

Cunningham v. Ellington, 323 F. Supp 1072
(W.D. Tenn 1971) ................ 14, 17,

Garner v. Memphis Police Department,
600 F.2d 52 (6th Cir. 1979) ................

Love V. Bass, 145 Tenn 522,
238 S.W. 94 (1922) ................

Mattis V. Schnarr, 547 F.2d 1007 ................
Monell V. Department of Social Services,

436 U.S. 658 ............  1, 2, 4, 5,
Owen V. City of Independence,

445 U.S. 622 (1980) ................
Reneau v. State, 70 Tenn 720 (1879) ............
Rochin v. California, 343 U.S. 165 (1952) . . . .
Washington v. Davis, 426 U.S. 229 ..............
Wiley V. Memphis Police Department,548 F.2d 1247 (6th Cir. 1977) . . 14, 16, 19, 20, 21,

Statutes;
T.C.A. §40-808 . . . . . .  ....................  3,
28 U.S.C. §1331 ...............................
28 U.S.C. §1343(3) ...............................
42 U.S.C. §1981 ................... ..........
42 U.S.C. §1983 ...............................

Page 

14, 17

14, 17 

18, 19 

21, 22 

23
18, 19

14, 16

15
23
22

20

22, 23

21, 23 
2 
2 
2 
2

XI



3. Is the municipality's use of hollow point bullets consti­
tutionally permissible under these provisions of the Constitution?

4. If the municipal conduct in any of these respects violates 
the Constitution, did the conduct flow from a "policy or custom"
for which the City is liable in damages under Monell?

STATEMENT OF THE CASE

This is a civil rights action brought by Cleamtee Garner on 
April 8, 1975, in the United States District Court for the Western 
District of Tennessee pursuant to 42 U.S.C. §§1981, 1983, 1985,
1986 and 1988 and 28 U.S.C. §§1343(3) and 1331, to seek redress 
for the fatal shooting of his son Edward Eugene Garner on October 3, 
1974, by an officer of the Memphis Police Department. Named as 
defendants were the Memphis Police Department, City of Memphis, 
Tennessee, Wyeth Chandler, Mayor of Memphis, Jay W. Hubbard, Director 
of Police of Memphis and E. R. Hyman, Police Officer of the City 
of Memphis.

The suit alleges that defendant Hyman violated the constitu­
tional rights of Edward Eugene Garner when he shot and killed Garner 
in attempting to apprehend him while fleeing from a private residence 
at 739 Vollintine, Memphis, Tennessee. The other defendants were 
sued on the grounds that their failure to exercise due care in 
the hiring, training and supervision of defendant Hyman made them 
equally responsible for Garner's death and all defendants were 
sued on the grounds that their use or authorization to use the 
"hollow point" bullet further caused the deprivation of Garner's 
rights under the Constitution and Laws of the United States.



On May 23, 1975, the defendants filed a Motion To Dismiss 
which was overruled on August 18, 1975.

Thereafter, on September 18, 1975, defendants filed their 
answer denying liability; any violation of the Federal Civil Rights 
Statutes; and any deprivation of the deceased's constitutional 
rights. In further answering, defendants alleged that the actions 
of defendant E. R. Hyman were governed by Tennessee Code Annotated 
§40-808.

After preliminary hearings for discovery and motion for produc­
tion of documents, the case came on for trial on August 2, 1976, 
before the Hon. Harry W. Wellford, sitting without a jury. The 
plaintiff's proof included testimony of the plaintiff himself, 
Cleamtee Garner, father of the deceased, Edward Eugene Garner;
Talton Douglas Enoch, an architect who made a model of the scene 
of the shooting; David Michael Cordero, an ambulance driver for 
the City of Memphis Fire Department who transported Garner to the 
hospital; Ann Stepp, employee of the City of Memphis Hospital who 
introduced hospital records covering the condition of Garner follow­
ing the shooting; Leedell Anderson, owner of the home that was 
broken into by Garner; Dan L. Jones, Chief of Detectives, Shelby 
County Sheriff's Department who testified as an expert relative 
to when an officer is justified in using his revolver to apprehend 
a fleeing felon; John A. Coletta, Captain, Memphis Police Department, 
Commander of the Training Bureau; Eugene L. Barksdale, Inspector, 
Memphis Police Department, who also testified as an expert relative 
to when a police officer was justified in using his revolver to 
apprehend a fleeing felon; Dr. J. T. Francisco, Shelby County



Medical Examiner; and the reading of portions of pretrial discovery 
depostion of defendant E. R, Hyman.

At the conclusion of plaintiff's proof on August 4, 1976, 
the court granted defendants' Motion For A Directed Verdict as 
to defendants Hubbard and Chandler and a partial Directed Verdict 
as to the City of Memphis and the Memphis Police Department with 
regard to hiring practices.

Defendants' proof consisted of testimony of J. W. Hubbard, 
former Director of Police, Memphis Police Department; defendant 
E. R. Hyman; Velton J. Rogers, Probation Officer, Memphis and Shelby 
County Juvenile Court; Leslie Burton Wright, Officer, Memphis Police 
Department; F. J. Wheeler, Sergeant, Memphis Police Department, 
and C. A. Russell, Sergeant, Memphis Police Department.

At the close of the trial, the court requested proposed findings 
of fact and conclusions of law which were submitted by counsel 
for both sides. On September 29, 1976, the court handed down its 
Memorandum Opinion indicating a judgment should be rendered for 
all defendants on all issues. On September 30, 1976, a Judgment 
was entered in accordance with the Memorandum Opinion and on October 
27, 1976, plaintiff filed a notice of appeal.

On appeal, the court affirmed the portion of the District 
Court's Judgment dismissing the case against the individual defen­
dants, but reversed and remanded the case against the City for 
reconsideration in light of Monell v. Department of Social Services, 
436 U.S. 658.

On remand, the District Court after reviewing memoranda and 
hearing oral argument, concluded as a matter of law that plaintiff



was not entitled to reopen the case by way of a new trial on issues 
already decided and found for the defendant City of Memphis in 
light of Monell.

Plaintiff filed a Motion for Reconsideration which was granted 
on May 29, 1980. The Court suspended its previous judgment and 
permitted plaintiff to submit further briefs and memoranda as well 
as any offer of proof.

After allowing plaintiff to make its offer of proof and the 
filing of memoranda by both sides, the Court entered an Order on 
July 8, 1981, finding in favor of defendant City of Memphis. There­
after plaintiff filed his Notice of Appeal.

STATEMENT OF THE FACTS

A. Original Trial
On the evening of October 3, 1974, Edward Eugene Garner broke 

into the Leedell Anderson home at 739 Vollintine, Memphis, Tennessee, 
for the purpose of committing a robbery. (App. 23, 157, 158). Daisey 
Bell Statts, 737 Vollintine, a next door neighbor, observed evidence 
of a break-in and called the police. (App. 23). Although 
the Statts house was not the one being broken into, the address 
of 737 Vollintine was given to the police. (App. 23, 644, 645).

A call went out by radio over the police network to the police 
car in Ward 128 that was manned by Defendant Hyman and Patrolman 
Leslie Wright directing them to proceed to 737 Vollintine where 
there was a prowler inside. (App. 23, 24, 642, 643, 703). Upon 
arriving at 737 Vollintine the officers saw Daisey Bell Statts 
standing on her porch pointing to the house next door. (App. 24, 644, 
645, 707). Defendant Hyman questioned her about the situation and



she said, "they are breaking in next door". (App. 24, 644, 645). 
Hyman then returned to the car, got his flashlight, advised his 
partner what was happening, and then proceeded south along the 
west side of the house at 739 Vollintine. (App. 24, 645, 646, 707)

Patrolman Wright then moved the squad car to the curb, called 
the police dispatcher to advise they were on the scene, picked 
up his flashlight and moved toward the east side of the house.
(App. 24, 707, 708).

Defendant Hyman became aware that there was a light on inside 
the house as he proceeded down the west side towards the rear.
{App. 24). As he approached the southwest corner of the 
house Hyman heard the back screen door slam and reaching the corner 
of the house he saw a figure running from the back of the house 
to the back of the lot where a cyclone fence extended across the 
south boundary of the property. {App. 24, 646, 647). The 
backyard of 739 Vollintine was completely encircled by fencing.
{App. 24).

There was a three to four foot chicken wire fence supported 
by boards which ran in a north to south direction along the west 
side of the backyard and was situated between Hyman and the cyclone 
fence which appeared to Hyman to be approximately six or seven 
feet high. {App. 24, 649, 654). As defendant Hyman was stand­
ing at a point near the southwest corner of the house, he could 
also observe that a garbage can had been placed under a window 
on the back side of the house and the glass was broken out of the 
window in the rear. {App. 24, 25, 656). Hyman could also make 
out a clothesline and the outline of objects in the backyard between 
him and the fleeing subject. {App. 25, 653).



Defendant Hyman shined his flashlight along the fence and 
spotted Edward Eugene Garner in a stooped position next to the 
cyclone fence near the southwest corner of an outbuilding located 
in the southeast corner of the yard. (App. 25, 252, 650).
He did not appear to be armed, but Hyman could not be certain of 
this at the moment. (App. 25, 658).

Defendant Hyman immediately shouted "halt" and identified 
himself. (App. 25, 650). Garner paused momentarily and then 
as Hyman started in his direction and toward the chicken wire fence. 
Garner sprang to the top of the cyclone fence extending half of 
his body and his head over the fence when Hyman fired his service 
revolver hitting Garner in the right side of the head. (App. 25 
651, 652).

The area to the south beyond the fence was in darkness and 
there was poor illumination in the Anderson backyard. (App. 25,
647, 648). Hyman was not familiar with this particular 
location or neighborhood, having lost his way in proceeding to 
the site. (App. 25, 644).

Patrolman Wright, in the meantime, had proceeded along a picket 
fence on the other side of the house and heard Defendant Hyman 
yell "Halt" in a loud voice, following which there was a pause.
(App. 25, 708). As Patrolman Wright approached the south­
east corner of the house, he heard a shot. (App. 25, 810).
Wright then flashed his flashlight along the fence until he picked 
up Garner whose body was draped on the fence, the torso, arms, 
and head draped over the south side and the legs draped over the



Wright apparently did not hear Hyman's earlier indication to get 
Garner when Hyman first located him with his flashlight as Garner 
paused before attempting to scale the fence. (App. 25, 26).

An ambulance was called and Garner was transported to the 
hospital where he never fully regained consciousness. (App. 26, 710).

It was later determined that after breaking into the Anderson 
house. Garner ransacked the bedrooms and removed a ring and a wallet 
containing a small amount of cash. (App. 26, 168, 169).

Less than two months prior to October 3, 1974, Garner, who 
was 15 years old, was placed on probation by the Juvenile Court 
in Memphis in connection with an adjudication of Juvenile Delinquency 
stemming from a charge of burglary which his parents had investi­
gated and reported. (App. 26, 689). Previously, Garner 
was placed on probation by Juvenile Court on November 1, 1971, 
in connection with a lesser charge of burglary, and he had also 
been charged with violation of curfew set by the Juvenile Court.
(App.26, 686). The boy's father conceded that his son was somewhat 
of a problem for him, particularly since he (the father) worked 
at night. (App. 26,' 82, 83). When the father was notified 
of the boy's death following the shooting he indicated to the police 
that he had been expecting something like this to happen. (App.
726, 727).

At the time of his death, the alcohol content in the blood 
of Edward Eugene Garner was .09 which is just under the standard 
for adults established by Tennessee Law on the presumption that

north side right in the bend of the body. (App. 25, 710).



592). Although Garner was about five feet, four inches tall 
and weighed probably in the neighborhood of 100 to 110 pounds at 
death, Hyman stated that at the time he was pursuing him he looked 
to be about 17 or 18 years old, in the neighborhood of 5'5" to 
5'7" tall and weighing less than 130 pounds. (App. 26, 253, 557).
The blood alcohol content was sufficient to slow his reaction.
(App. 26, 563).

Defendant Hyman, at the time he was attempting to apprehend 
Garner, could not be certain whether there was an accomplice in 
the house or in the area, and whether the accomplice might be armed. 
(App. 27, 656, 674, 675). The area by the cyclone fence in the back 
of the yard was not illuminated, and the area south of the fence 
was very dark at the time defendant Hyman was trying to apprehend 
Garner. (App. 27, 647). He could detect only traces of tall 
underbrush and trees on the other side of the cyclone fence. (App. 
27, 232, 233). He did not know the lay of the land in this area 
which was only a few blocks from the Garner home. (App. 27, 648).

Defendant Hyman testified that the reason he fired at Garner 
was because he knew that he would not be able to apprehend him 
on foot. (App. 652, 654). The factors that he considered were 
his difficulty in getting through the cluttered backyard; Garner 
already being halfway over the six foot chain link fence; his concern 
about his ability to scale the six foot chain link fence due to 
his own size, his foot wear, having a flashlight in one hand and 
a pistol in another and the other paraphernalia on his person;

one is acting under the influence of an intoxicant. (App. 26,



the area being dark; his uncertainty about the terrain on the other 
side of the cyclone fence, and the concern that there may have 
been an accomplice in the house who may be armed. {App. 652-657).

Plaintiff's expert witness, Eugene Barksdale, testified that 
if a police officer, in pursuing a fleeing felon, is sure that 
he cannot apprehend the subject, it is his duty under state law 
to use whatever means is necessary to apprehend him, which would 
include use of his weapon. (App. 377). He further testified 
that the officer should pursue the subject on foot without firing 
his weapon only if he knows beyond a reasonable doubt that the 
individual is not armed. (App. 377).

Captain John Coletta of the Memphis Police Department also 
testified as an expert witness on the question of when an officer 
was justified in using his firearm in attempting to apprehend a 
fleeing felon. In response to a hypothetical question covering 
a factual situation identical to circumstances surrounding the 
shooting of Edward Eugene Garner, he stated that in his opinion, 
Hyman was justified in using his pistol in view of the fact that 
this would be the only means of apprehending Garner who was fleeing 
from a private residence after having burglared the same. (App.
532) .

After full investigation of the incident of October 3, 1974, 
and a review of same by the Memphis Police Firearms Review Ward, 
no disciplinary action was taken against Hyman nor was any action 
taken by the Shelby County Grand Jury, although the matter was

10



presented to it. (App. 27/ 623t 625/ 662). There is nothing in the 
record to indicste thst defendant Hymen hed eny propensity towerd 
precipitous or reckless use of firearms as a police officer or 
otherwise. (App. 27).

The training methods used and the subject matter taught at 
the Memphis Police Department Training Academy in the area of the 
use of firearms and deadly force are generally consistent with 
those used by other police departments and the FBI Academy. (App. 
27/ 534/ 535). Memphis police instructors received training 
at the FBI Academy. (App. 27, 304). They taught police 
to fire at the largest target present/ usually the trunk or torso 
area/ the "center mass". (App. 27, 28, 348/ 349). Police were 
given instruction also by legal advisors on the Tennessee law with 
respect to the use of lethal force. (App. 28/ 323).

Regulations published by the Memphis Police Department in 
connection with the "Use of Firearms and Deadly Force , effective 
at the time were somewhat more restrictive than Tennessee Code 
Annotated §40—808/ which deals with the lawful means by which a 
fleeing felon may be apprehended. (App. 28/ 322).

Prior to October 3/ 1974/ the Memphis Police Department decided 
to make a study of various types of ammunition following complaints 
by officers that the "round nose" type ammunition they were issued 
for their service revolvers was not sufficiently effective in stop­
ping or neutralizing individuals with whom they were confronted 
in dangerous situations. (App. 28/ 494/ 495/ 627/ 628). This

11



followed an episode in which a police officer was killed (and a 
Federal Probation Officer wounded) by an apparently beserk man 
firing at random at others. (App. 28, 496). Tests were con­
ducted by the Firearms Section of the Memphis Police Department 
under the auspicies of Captain John Coletta who recommended a change 
to a "hollow point" projectile or bullet as more effective in "neu­
tralizing" or incapacitating an individual and less likely to pene­
trate through a target and thus continue in flight to the possible 
harm of others. (App. 28, 495).

During the term of Police Director Hubbard, the Memphis Police 
Department thereafter, following consideration of the Coletta recom­
mendation, changed to the use of "hollow point" ammunition, specif­
ically .38'Special Caliber Remington 125 Grain, semi-jacketed hollow 
point. (App. 28, 29, 627-629). Hubbard also established a 
Firearms Review Board to investigate incidences wherein police 
employed a firearm. (App. 29, 613).

"Hollow point" ammunition is used by many other police depart­
ments throughout the United States and by the FBI, although it 
is more lethal in its effect. (App. 29, 493). A key 
factor in the injury producing effect of a bullet is the part of 
the body it strikes and the point of entry. (App. 29, 494).
The particular type of ammunition used by the Memphis Police had 
a greater wounding producing potential with greater velocity than 
was formerly utilized, and was more accurate. (App. 29).
"Hollow point" ammunition produces more injury than round nose 
ammunition, all other factors being equal, but state and local

12



Medical Examiner and County Coroner, Francisco, could not state 
the type of ammunition used in this particular episode would have 
made any difference in bringing about Garner's death in light of 
the place where the bullet struck and the point of entry. (App.
29, 569, 570, 597, 598).

There is no evidence introduced tending to indicate any personal 
involvement whatsoever by Director Hubbard or Mayor Chandler in 
the episode of controversy, or in any failure on their part with 
respect to police hiring procedures regarding the employment of 
Hyman as a police officer. (App. 29, 30). There was evi­
dence to the effect that Hyman was, prior to this episode, a compe­
tent police officer, indeed, that he was the type of person who 
was a desirable police recruit by reason of his education, back­
ground, ability and his race. (App. 30). There was no 
evidence indicating insufficient or inadequate police hiring methods 
or standards. (App. 30).
B. On Remand.

In its original order of February 29, 1980, the court found 
that there was no basis for reopening the case and introducing 
additional evidence because the plaintiff's Constitutional claims 
received full and careful consideration under §1331 in the initial 
trial. (App. 36-46).

The Court further found that a municipality's use of deadly 
force under Tennessee law and the use of hollow point bullets was 
not unconstitutional. (App. 46). After this judgment 
was suspended to allow plaintiff to make an offer of proof.

13



plaintiff did so in the form of reports, depositions from other 
cases, data computed in Wiley v. Memphis Police Dept., 548 F.2d 
1247 (6th Cir.)f cert, denied, 434 U.S. 822 (1977) and affidavits. 
(App. 760-1477). Thereafter on July 8, 1981, the District Court 
entered an Order dealing specifically with plaintiff's offer of 
proof (App. 55-62) and the questions posed by this Court when 
the case was remanded. (App. 55-62). Although the court 
did not believe the additional tender by plaintiff should be taken 
into account, after giving it full consideration, its conclusion 
was not changed. (App. 58). The court again responded to 
the four (4) questions, concluding specifically that the City's 
deadly force policy and use of hollow point ammunition was consti­
tutional. (App. 61, 62). A judgment was rendered again 
for the City of Memphis primarily because of previous decisions.—' 
(App. 62).

1/

ARGUMENT
I

DOES A MUNICIPALITY HAVE A SIMILAR QUALIFIED IMMUNITY OR PRIVILEGE 
BASED ON GOOD FAITH UNDER MONELL?

The City submits that even though it does not have a qualified
immunity per se, under the circumstances of this case it had the
right to rely upon its current policy as being constitutional.

Wiley V. Memphis’ Police Dept., supra. Beech v. Melancon,
465 F2d 425 (6th Cir. 1972); Cunningham v. Ellington, 373 F.Supp. 
1072 (WD Tenn 1971) and Campbell v. City of Memphis (DC Tenn No. 
79-2508, March 25, 1981)

14



The District Court found that under Owen v» City of Independence, 
445 U.S. 622 (1980) the City does not have a good faith defense 
in a 1983 action nor may it claim immunity simply because of the 
good faith action of its agent/ officer Hyman. (App. 61).
The court went on to point out however/ that the answer to this 
question is in some doubt because the City was apparently relying 
upon the Tennessee law as it had been interpreted by the Federal 
and State Courts. (App. 61). In the case of the City 
of Memphis/ their policy relative to the use of firearms was more 
restrictive than the state law. (App. 28/ 322). It is extremely 
difficult to comprehend any reasoning or rationale which would 
predicate liability upon the City where they were relying upon 
a policy which was within the limits of a state law and has been 
constitutionally upheld.

II
IS A MUNICIPALITY'S USE OF DEADLY FORCE UNDER TENNESSEE LAW TO 
CAPTURE ALLEGEDLY NONDANGEROUS FELONS FLEEING FROM NONVIOLENT CRIMES 
CONSTITUTIONALLY PERMISSIBLE UNDER THE FOURTH, SIXTH, EIGHTH AND 
FOURTEENTH AMENDMENTS?

The District Court answered this question in the affirmative.
The City submits the answer should be yes.

A. Facts.
This question presupposes that the instant case involves a 

"non dangerous felon"/ fleeing from a "non violent crime." At 
the time of the shooting/ the officer acting under the policy of 
the City could not be certain at the moment that the suspect Garner

15



was unarmed (App. 25, 558) or whether there was an accomplice 
in the house from which Garner was fleeing and whether the accom­
plice might be armed. {App. 21, 656, 674, 675). When the officer 
arrived at the scene he was told by a neighbor that "they are break­
ing in". (App. 24, 644, 645). Further the officer did not know 
whether the suspect had committed a so called "property crime" 
or whether persons in the house which he had forceably entered 
might be endangered. (App. 32). He could have committed 
another crime in the house such as rape, assault or even homicide.

In analyzing one of the affidavits tendered by plaintiff, 
the District Court said in its Order of July 8, 1981:

"Furthermore, as was indicated in considering the facts 
of the instant case, a police officer simply cannot clearly 
determine at night or in darkness whether a suspect is 
armed or has been armed with a deadly weapon when involved 
in the suspected felony. The bias of plaintiff's expert 
is apparent in his last conclusion, 'it was very wrong 
that the officer had been told to do what he did,' (a 
conclusion drawn not from the record in this case, but 
from a brief account of facts in an appellate decision) 
and that Garner was dead 'because of policy and training 
which authorized the summary shooting of non-dangerous 
suspects on the basis of suspicion or probable cause'."
(App. 58)

Then the Court goes on to say:
"This Court does not believe that the additional tender 
by plaintiff should properly be taken into account for 
the reasons set forth in the Court's Order (and Opinion) 
dated February 29, 1980, but even giving it full consid­
eration, the conclusion heretofore reached is not changed.
The facts of this case did not indicate to Officer Hyman 
that Garner was 'non-dangerous'." (App. 58)

B . Existing Law.
Upon reconsideration in light of Monell, the District Court 

rendered judgment for the City primarily because of previous deci­
sions by this court in Wiley v. Memphis Police Department, supra;

16



V. Ellington, 323 F.Supp. 1072 (W.D. Tenn. 1971). (App. 62).
The Court then commented on an opinion by the Chief Judge

of the Western District of Tennessee involving the deadly force
policy of the Memphis Police Department:

"The very question involved in this case was recently 
decided by Chief Judge McRae of this District in Campbell 
V . City of Memphis/ NO. 79-2508 (March 25, 1981), who 
held:

The Memphis Police Department's deadly force 
policy, inter alia, authorized police after 
having made known their identify and purpose, 
to use deadly force:

To apprehend a fleeing person, after 
exhausting every other reasonable 
means of prevention, apprehension, 
or defense, when the officer has 
reasonable cause to believe the sus­
pect has committed a felony which 
is either a burglary in the first, 
second, or third degree, or a felony 
involving an actual or threatened 
attack which the officer has reason­
able cause to believe could result, 
or has resulted, in death or serious 
bodily injury.

As plaintiffs stress, this motion does not 
question the use of deadly force by police 
officers against suspects who forcibly resist 
arrest, who pose a threat to the life or bodily 
security of the arresting officers or other 
persons, or the use of deadly force to apprehend 
persons suspected of felonies involving vio­
lence. Instead, "[t]he only issue presented 
here in the constitutionality of using deadly 
force against a property crime suspect, who 
has not engaged in violence."
Plaintiffs contend that the deadly force policy 
of the Memphis Police department is unconsti­
tutional on several grounds. First, they argue

Beech V. Melancon» 465 F2d 425 (6th Cir. 1972); and Cunningham

17



that use of deadly force against a non-violent 
property crime suspect is cruel and unusual 
punishment. Second, they argue that this policy 
violates the equal protection clause of the 
Fourteenth Amendment. Third, they contend 
that the use of deadly force against a non­
violent property crime suspect violates the 
due process clause of the Fourteenth Amendment. 
Fourth, they argue that use of deadly force 
to arrest a non-violent property crime suspect 
is an unreasonable seizure.

****

. . . In accordance with Cunningham, this Court 
holds that the deadly force policy of the Memphis 
Police Department does not violate the equal 
protection clause of the Fourteenth Amendment 
because of not allowing deadly force to be 
used against fleeing misdemeanants.

* *  *  *

The definition of the goal to be served by 
the deadly force policy becomes important.
Clearly, a goal to be served by the deadly 
force policy of the Memphis Police Department 
is the prevention of all future felonies.
As such, the deadly force policy is not over- 
inclusive. See discussion in Comment, Deadly 
Force to Arrest: Triggering Constitutional
Review, 11 Harv. C.R. - C.L.L. Rev. 361, 375- 
380 (1976).

* * * *

The dissenting judges in Mattis (v. Schnarr,
547 F.2d 1007 (8th Cir. 1976)), criticized, 
the majority for failing to identify the interests 
of the state which should be balanced against 
the felon's right to life. The dissent said 
these state interests "include effective law 
enforcement, the apprehension of criminals, 
the prevention of crime and the protection 
of members of the general populance who, like 
fleeing felons, also possess a right to life."
Id., 1023.

18



The dissenting judges in Mattis also criticized 
the majority for a "single-minded focus on 
the seemingly absolute right of an individual 
to life." Id.f 1022. After noting that life 
is filled with contradictions and obstacles, 
the dissent noted, in a statement quoted by 
the Sixth Circuit in Wiley at 1253:

There is no constitutional right 
to commit felonious offenses and 
to escape the consequences of those 
offenses. There is no constitutional 
right to flee from officers lawfully 
exercising their authority in appre­
hending fleeing felons.

Mattis, 1023.
The dissent in Mattis, with which the Sixth 
Circuit agreed in Wiley, points out that the 
interests of the state in effective law enforce­
ment, the apprehension of criminals, and the 
prevention of crime outweigh the interests 
of the fleeing felon in this matter. As noted 
earlier, deadly force may be used only after 
the officer has warned the fleeing felon to 
halt, and only if the officer reasonably believes 
that no lesser menas will prevent the escape 
of the fleeing felon.

■ k i f k l c

"No court has ever specifically found force 
necessary to effect arrest to be unreasonable 
under the fourth amendment." Deadly Force 
to Arrest: Triggering Constitutional Review,
Fupra, 384, 385.

C . Punishment.
Plaintiff argues at length that the deadly force policy of

the City is tantamount to punishment. In Cunningham v. Ellington,
supra, the Court said at page 1075:

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

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D. Equal Protection - Racial Discrimination
At the trial of this case, plaintiff presented no evidence 

to substantiate the assertion that there had been a denial of equal 
protection on the basis of race. As a matter of fact, counsel 
for plaintiff expressed no desire to pursue this facet of the case. 
(App. 42).

This issue was raised in Wiley and pursued against all defen­
dants which included the City of Memphis. Statistical information 
was introduced along racial lines. This Court said in Wiley at 
page 1254;

The District Court held with respect to plaintiff'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 protection 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 otherwise arrest cannt be reasonably accomplished 
and escape is inevitable, even in the case of so-called 
property crimes.
In our opinion these findings of fact are supported 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;
. . . Our cases have not embraced the proposition that 
a law or other official act, without regard to whether 
it reflects a racially discriminatory purpose, is unconsti­
tutional solely because it has a racially disproportion­
ate impact.

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E. Municipality v. Officers and Officials
This Court in its opinion remanding the case for further consi­

deration ruled that its previous decisions do not establish the 
constitutionality of TCA §40-808 permitting a city to authorize 
its officers to use deadly force against a fleeing felon. 600 
F2d at 54. However, in Wiley the Court 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 Tennessee statute 
was constitutional and on the fact that no court at that 
time had ever held that statute or a similar statute 
to be unconstitutional. (Emphasis Ours)
It is difficult to ascertain the difference in the constitu- 

tonality of a statute as it relates to individuals as opposed to 
a municipality. If TCA §40-808 is constitutional to the extent 
that individuals can in good faith rely upon it, then it would 
logically follow that the city has a right to rely upon it.

Ill
IS THE MUNICIPALITY'S USE OF HOLLOW POINT BULLETS CONSTITUTIONALLY 
PERMISSIBLE UNDER THESE PROVISIONS OF THE CONSTITUTION?

The District Court answered in the affirmative.
Defendant submits the answer should be yes.

Hollow point bullets are used by many other police departments 
throughout the United States as well as the FBI. (App. 29, 493).
As the District Court pointed out in its initial findings (App. 
33-35) and in its Orders of February 29, 1980, (App. 37, 46) 
and July 8, 1981, (App. 62) the use of this type of ammunition

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did not violate standards of civilized conduct so as to shock the 
conscience of the Court. Rochin v. California/ 343 U.S. 165 (1952). 
Furthermore, as the Court found, "the question of the use of hollow 
point bullets does not require a Constitutional determination under 
the facts of this case because it had no causative relation and 
regarldess of whatever kind of ammunition had been used, the result 
would have been the same. (App. 62)

IV
IF THE MUNICIPAL CONDUCT IN ANY OF THESE RESPECTS VIOLATES THE 
CONSTITUTION, DID THE CONDUCT FLOW FROM A "POLICY OR CUSTOM" FOR 
WHICH THE CITY IS LIABLE IN DAMAGES? “

The District Court found that the city was not liable.
Defendant submits that the District Court was correct in find­

ing no liability.

If the city's deadly force policy and use of hollow point 
bullets are constitutionally permissible, then we do not get to 
this last question. Irrespective of whether you get to this ques­
tion or not, the District Court found that "there was demonstrated 
no constitutionally impermissible action or practice in the record." 
(App. 62).

In a footnote in the previous opinion, this Court referred 
to certain statistics submitted in the Wiley case on the question 
of "policy or custom" 600 F2d at 55. In Wiley, this Court said 
at page 1249;

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The facts as found by the District Judge, however, were 
that these policies, practices, customs and usages were 
authorized by the Legislature of Tennessee in its enact­
ment more than one hundred years ago, of the present 
language of T.C.A. §40-808, hereinabove set forth. This 
language appeared as Section 5040 of the Tennessee Code 
of 1858, the first official code of Tennessee, and embodied 
the common law of that State. Love v. Bass, 145 Tenn.
522, 529, 238 S.W.2d 94 (1921); Reneau v. State, 70 Tenn.
720 (1879) .
If this Court in Wiley did not see fit to disturb the trial 

court's findings relative to "policies, practices, customs and 
usages" 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.

CONCLUSION
It is respectfully submitted that the judgment of the District 

Court should be affirmed.

Respectfully submitted,
Clifford D. Pierce, City Attorney 
City of Memphis 
125 North Main, Room 314 
Memphis, Tennessee 38103

Henry L. 'Klein, Staff Attorney 
2108 First Tennessee Building 
Memphis, Tennessee 38103

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CERTIFICATE OF SERVICE
I hereby certify that two copies of the foregoing Brief have 

been served by United States mail, postage prepaid, to Steven L. 
Winter, Suite 2030, 10 Columbus Circle, New York, New York 10019, 
this the 6th day of January, 1982.

Henry L. (Klein

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