Beech v. Melancon Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

    I *

In The
SUPREME COURT OF THE UNITED STATES 

October Term, 1972 
No.

ROBERT BEECH,
Petitioner,

v.

D.J. MELANCON and P.J. GALLO.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

JACK GREENBERG 
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
DREW S. DAYS, III 

10 Columbus Circle 
New York, New York 10019

WALTER L. BAILEY, Jr.
Ratner, Sugarmon & Lucas 
525 Commerce Building 
Memphis, Tennessee 38103

Attorneys for Petitioner

6



« 1

Index

Opinions Below .....................................
Jurisdiction .......................................
Question Presented .................................
Constitutional and Statutory Provisions Involved ....

Page

1
2

2
2

Statement of The Case ..............................  3
Factual Background ..............................  3
Proceedings Below ...............................  4

Reasons For Granting The Writ ......................  5
Introduction ....................................  c.

I. The Sixth Circuit Decision Conflicts 
With Prior Decisions Of This Court And
With Those Of Other Circuits ...................  g
A. The Sixth Circuit Decision Conflicts 

With Holdings That 42 U.S.C. § 1983 
Damage Actions Lie Against State 
Officials Acting In Conformity With
State Law ..................................  9

B. The Immunity Accorded By The Sixth 
Circuit To Police Officers Acting In 
Good Faith Under State Statutes Not 
Previously Declared Unconstitutional 
Conflicts With Prior Decisions Of 
This Court In That It Erases The 
Crucial Distinction Between Criminal
And Civil Liability Under § 1983 ...........  11

C. The Sixth Circuit Doctrine Is In 
Conflict With Decisions Of This 
Court That Establish The Right To 
Bring Personal Damage Actions To 
Challenge Unconstitutional State
Statutes ...................................  13

D. The Sixth Circuit Doctrine Is In 
Conflict With Decisions Of This 
Court That Establish A Distinction 
Between A Constitutional Test Of A 
State Statute "On Its Face" And A
Test Of Such A Statute "As Applied" ........  15

II. If The Decision Of The Sixth Circuit Is Read 
To Hold That Use Of Deadly Force Is Con­
stitutional Regardless Of Circumstance ,
Then It Presents An Issue Of Great National 
Importance That Should Be Resolved By This
Court .........................................  16

Conclusion 21

Appendix



1

TABLE OF AUTHORITIES
PageCases

Anderson v. Haas, 341 F.2d 497 (3rd Cir. 1965)...........  H
Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965) ............  H
Beck v. Ohio, 379 U.S. 89 (1964).........................  13
Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 U.S. 388 (1971)......................  13,14

Brooks v. Moss, 242 F.Supp. 531 (W.D.S.C. 1965) ..........  18
Brown v. Mississippi, 297 U.S. 279 (1936)................  17
Clark v. United States, 193 F.2d 294 (5th Cir. 1951).....  12,18
Cohen v. Norris, 300 F.2d 24 (9th Cir. 1962).............  11
Commonwealth v. Chermansky, 430 Pa. 170, 242 A.2d

236 (1968).............................................  20
Coolidge v. New Hampshire, 403 U.S. 443 (1971)...........  14
Cunningham v. Ellington, 323 F.Supp. 1072 (W.D. Tenn. 1971) 14,17
Edwards v. South Carolina, 372 U.S. 229 (1963)...........  13
Furman v. Georgia, 408 U.S. 238 (1972)...................  18
Guido v. city of Schenectady, 404 F.2d 728 (2nd cir. 1968) 16
Herschel v. Dyra, 365 F.2d 17 (7th Cir. 1966), cert. den.

sub nom., Herschel v. Wilson, 385 U.S. 973 (1966) ......  11
Hoffman v. Halden, 268 F.2d 280 (9th cir. 1959)..........  11
Jackson v. Duke, 259 F.2d 3 (5th Cir. 1953)..............  18
Jackson v. Martin, 261 F.Supp. 902 (N.D. Miss., 1966) .... 20
Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970).........  11,18
Lanzetta v. New Jersey, 306 U.S. 451 (1939)............  15
Love v. Bass, 145 Tenn. 522, 238 S.W. 94 (1921)..........  20
Marshall v. Sawyer, 301 F.2d 639 (9th Cir. 1962)..........  11
Monroe v. Pape, 365 U.S. 167 (1961)......................  9,10,11,12
Myers v. Anderson, 238 U.S. 368 (1915)...................  10
Nixon v. Condon, 286 U.S. 73 (1932)......................  10
Nixon v. Herndon, 273 U.S. 536 (1927)....................  10
Palko v. Connecticut, 302 U.S. 319 (1937)................ 17
Pierson v. Ray, 386 U.S. 547 (1967) ......................  6,7,16
Reneau v. State, 70 Tenn. 720, 31 Am.Rep. 626 (1879) ....  20
Rochin v. California, 342 U.S. 165 (1952)...............  18



ii
Page

Sauls v. Hutto, 304 F. Supp 124 (E.D. La. 1969) ......  20
Scarborough v. State, 76 S.W.2d 106 (1934)...........  20
Screws v. United States, 325 U.S. 91 (1941)..........  12
Smith v. Allwright, 321 U.S. 649 (1944)..............  10
Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962).......  11
Snyder v. Massachusetts, 291 U.S. 97 (1932)..........  17
Storey v. State, 71 Ala. 329 (1882) . .................  20
Stringer v. Dilger, 313 F.2d 536 (10th Cir. 1963) ....  18
Thornhill v. Alabama, 310 U.S. 88 (1940).............  15
Whirl v. Kern, 407 F.2d 781 (5th Cir. 1968)..........  11
Wolf v. Colorado, 338 U.S. 25 (1949) ................  17
Yick Wo v. Hopkins, 118 U.S. 356 (1886)..............  15

Constitutional and Statutory Authorities
Fifth Amendment, U.S. Constitution ..................  2
Fourteenth Amendment, U.S. Constitution..............  2
18 U.S.C. § 242 .....................................  12
42 U.S.C. § 1983 ....................................  2,4,6,7,10,11
Tennessee Code Annotated § 40-808 ...................  3,5,7,16,17,

18

Other Authorities
9 ALI Proceeding (1930-31) ..........................  19
Bayley and Mendelson, Minorities and the Police;

Confrontation in America (1969) ................... 9
4 Blacks tone Comm. 292 (7th ed. 1775) ................  18
Bohlen and Schulman, Arrest With and Without a Warrant,

75 U.PA. L. REV. 485 (1926-27) ....................  19
Brooks, Necessary Force - or Police Brutality, N.Y. Times,
December 5, 1967 (Magazine) .......................  3

Chevigny, Police Power: Police Abuses in New York City 
(1969) ............................................  8#9

7 — —  mm



L *

iii
Page

Cray, The Big Blue Line: Police Power v. Human Rights
(1962) ................................................... 8

Governor's Select Commission on Civil Disorder (New Jersey)
Report for Action (February, 1968) ......................  8

Greenstone, Liability of Police Officers for Misuse of Their 
Weapons, 16 CLEV. MAR. L. REV. 397 (1967) ...............  19

Gremel, When Can a Policeman Use His Gun, 40 J. CRIM. LAW 756 
(1950) .................................................. 19

Hall, Legal Social Aspects of Arrest Without a warrant,
49 HARV. L. REV. (1936) .................................  19

Jacobs, Prelude to Riot: A View of America From the
Bottom (1968) ...........................................  8

Katz, The Jurisprudence of Remedies: Constitutional Legality 
and the Law of Torts in Bell v. Hood, 117 U.PA.L.REV. 1 
(1968) ...................................................  13

LaFave, Arrest: The Decision to Take a Suspect into Custody, 
Report of American Bar Foundation's Survey of the 
Administration of Criminal justice in the U.S. (1965) • ••• 8

McDonald, Use of Force by Police to Effect Lawful Arrest,
9 CRIM. L. Q. 435 (1967) ................................  19

McNamara, Uncertainties in Police Work: The Relevance of 
Police Recruits' Backgrounds and Training in Bordua,
The Police: Six Sociological Essays (1967) .............  8

Michael & Wechsler, Criminal Law and Its Administration
(1940) ............ ...........rr.... .................... 19

Moreland, The Use of Force in Effecting or Resisting Arrest,
33 NEB. L. REV. 408 (1954) ..............................  19

National Center on Police and Community Relations of the 
School of Police Administration and Public Safety,
Michigan State University, A National Survey of Police 
and Community Relations, Field Survey V, The President's 
Commission on Law Enforcement and Administration of 
Justice (1967) ........................................... 8

Note, Justification for the Use of Force in the Criminal Law,
13 STAN. L. REV. 566 (1971) .............................  19

Note, The Civil Liability of Peace Officers for Wounding or
Killing, 28 U. CINC. L. REV. 488 (1959) .................. 19

Note, The Doctrine of Official Immunity Under the Civil Rights 
Act, 68 HARV. L. REV. 1129, 1239-40 (1955) ...............  11

Note, The Proper Scope of the Civil Rights Acts, 66 HARV.
L. REV. 1285, 1299 (1953) ................................  10

Note, The Use of Deadly Force in the Protection of Property
Under the Model Penal Code, 59 COLUM. L. REV. 1212 (1959) .. 19

 ̂... -  --------.. iMan*—



Page
Perkins, Criminal Law (1957) ............................  19
Perkins, The Law of Arrest. 25 IOWA L. REV. 201 (1940) ___ 19
President's Commission on Law Enforcement and The 
Administration of Justice, Task Force Report* The 
Police (1967) ............ 7 ...........  '' 8

President's National Advisory Commission on Civil
Disorders, Report (1968) ..............................  8

Prosser, Law of Torts (2d. ed. 1955) ....................  19
Robin, Justifiable Homicide by Police Officers,

54 J. Crim. L. , C.&P.S. 225 (1963) ....................  9
Rummel, The Right of Law Enforcement Officers to Use
Deadly Force to Effect an Arrest, 14 N.Y.L.F7 749' (1968) 19

Safer, Deadly Weapons in the Hands of Police Officers,
On Duty and Off Duty. 49 J. URB. L. 565 (1971) . . . ...... 19

Shaffer, Negroes and the Police, II Editorial Research
Reports, 681 (1964) ..............................  g

Wilgus, Arrest Without a Warrant, 22 MICH. L. REV. 541 (1924).. 19



In The
SUPREME COURT OF THE UNITED STATES 

October Term, 1972 
No.

ROBERT BEECH,
Petitioner,

v.

D.J. MELANCON and P.J. GALLO.

PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

Petitioner prays that a writ of certiorari 
issue' to review the judgment of the United States Court 
of Appeals for the Sixth Circuit entered in the 
above-entitled cause on July 31, 1972.

Opinions Below

The opinions of the courts below directly 
preceding this petition are as follows:

1. The District Court opinion of November 16,
1971 is unreported and is printed in the 
Appendix, infra, pp. 1-6.

2. The Court of Appeals opinion of July 31,
1972 is unreported and is printed in the 
Appendix, infra, pp.7-9.

i i ■ -v



::
i tr

Jurisdiction

The judgment of the Court of Appeals was entered 
on July 31, 1972 (Appendix, pp. 7-9, infra). The juris­
diction of this Court is invoked under 28 U.S.C. Section 
1254 (1).

Question Presented

Whether the court below erred in holding that a 
police officer who acts pursuant to a state statute not 
previously held unconstitutional is immune from liability 
for damages for civil rights violations resulting from his 
conduct.

Constitutional and Statutory Provisions Involved

1. This case involves the following portions of the
Fourteenth Amendment to the United States Constitution:

. . . [N]or shall any State deprive any
person of life, liberty, or property, with­
out due process of law; . . . .

and
The Fifth Amendment to the United States Con­

stitution :
. . . [N]or [shall any person] be deprived
of life, liberty or property without due 
process of law . . . .

2. Also involved is 42 U.S.C. § 1983 which reads 
as follows:

§ 1983. Civil Action for deprivation of rights
Every person who, under color of any statute, 

ordinance, regulation, custom, or usage, of any 
State or Territory, subjects, or causes to be sub­
jected, any citizen of the United States or other 
person within the jurisdiction thereof to the 
deprivation of any rights, privileges, or immuni­
ties secured by the Constitution and laws, shall 
be liable to the party injured in an action at

2



law, suit in equity, or other proper pro­
ceeding for redress.

3. Tennessee Code Annotated § 40-808 is also in­
volved:

40-808. Resistance to officer.- If, after 
notice of the intention to arrest the defend­
ant, he either flee or forcibly resist, the 
officer may use all the necessary means to 
effect the arrest.

Statement of the Case

Factual Background
On June 17, 1970, near midnight, petitioner, Robert 

Beech, and his cousin, Charles Crenshaw, black citizens of 
the City of Memphis, illegally entered the premises of Bil- 
lup's Service Station, a gas station, located at 1124 South 
Third Street in the City of Memphis, Tennessee. Both men 
were unarmed. While petitioner and Crenshaw were in the pro­
cess of rifling vending machines located in the gas station, 
D.J. Melancon and P.J. Gallo, police officers employed by the 
City of Memphis, arrived on the scene in their patrol car, 
parked along-side the station and alighted from the vehicle. 
Petitioner and Crenshaw, seeing the police officers, rushed 
out of the back door of the station and began running away 
from the station and from the police officers who had reached 
the back of the building. As they exited from the patrol car, 
Officer Melancon was carrying a shot-gun ( Remington "pump- 
gun" ) and defendant Gallo had drawn his .38 calibre service 
revolver. The rounded the back of the building and observing 
Beech and Crenshaw exiting from the back door of the station 
about 20-30 feet from the officers, though it was apparent to 
the officers that Beech and Melancon were unarmed, Melancon 
fired two blasts at Crenshaw and Gallo fired four shots at 
Beech. Crenshaw was mortally wounded as he headed through

3



low brush into an open city park by the second shot-gun blast, 
dying shortly after his arrival at the hospital. Beech was 
hit twice by bullets from Gallo's gun, wounds for which he had 
to undergo surgery and remain in the hospital for seven days. 
Beech was subsequently tried, convicted of an attempted felony 
and sentenced to the Shelby County Tennessee Penal Farm for a 
term of 11 months and 29 days. He is permanently disabled as 
a consequence of his injuries.

Proceedings Below
On March 11, 1971, having received leave to proceed 

in forma pauperis, petitioner filed a civil damage action 
pursuant to 42 U.S.C. § 1983 against D.J. Melancon and P.J. 
Gallo, two police officers employed by the City of Memphis, 
Tennessee. He alleged that the police officers in question 
had violated civil rights accorded him by the laws, statutes 
and Constitution of the United States in that they employed 
deadly force in preventing his escape from the commission of 
a felony where lesser, non-deadly means would have sufficed 
to apprehend him. Their use of excessive force in arresting 
him, petitioner asserted, violated rights guaranteed speci­
fically by the Fifth and Fourteenth Amendments to the Consti­
tution.

Henry Lux, then chief of police of the City of 
Memphis, was also named as a defendant based upon petitioner's 
allegation that Lux, in the course of his duties as the chief 
officer of the Memphis Police Department had authorized his 
subordinates to employ deadly force to apprehend persons 
fleeing from scenes of suspected felonies even where means 
short of deadly force would suffice to prevent escape. Accord­
ing to petitioner, the use of deadly force by Melancon and 
Gallo in his case was simply representative of a pattern and 
practice being carried on by members of the Memphis Police

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______ _____-______________  -- ---



Department of relying upon deadly force as the principal 
means of apprehending persons fleeing from the scenes of 
suspected felonies, to the complete disregard of means in­
volving less than deadly force, even where appropriate.
Lux, Melancon and Gallo moved to dismiss the complaint. Only 
Lux's dismissal motion was granted. After their motions were 
denied, Melancon and Gallo answered petitioner's allegations 
by contending, in essence, that their use of deadly force was 
justified under Tennessee Code Annotated § 40-808.

A non-jury trial was had before the district court 
on November 11 and 15, 1971. On November 16, 1971, that 
court entered its memorandum opinion, finding against peti­
tioner (Appendix, infra, pp. 1-7). It held that, under the 
provisions of T.C.A. § 40-808, defendants' use of deadly force 
was reasonable and justifiable. On November 17, 1971, peti­
tioner appealed to the Court of Appeals for the Sixth Circuit. 
On July 31, 1972, that court affirmed the decision below, hold­
ing that affirmance was required because (1) Tennessee Statute 
T.C.A. § 40-808 authorized the police officers to use deadly 
force under the circumstances surrounding the apprehension of 
petitioner and his cousin, Crenshaw; (2) that T.C.A. § 40-808 
was at least colorably constitutional on its face given an 
earlier finding to that effect by a three-judge district court 
panel for the same circuit; and (3) irrespective of the con­
stitutionality of T.C.A. § 40-808, the officers were entitled 
to act on the presumption that the statute was constitutional 
without incurring any civil liability for the consequences of 
their use of deadly force. Hence, the trial court's finding 
that the police officers were justified in employing deadly 
force was not so clearly erroneous to warrant reversal. (Ap­
pendix, infra, pp. 7-8).

5



Reasons For Granting The Writ

Introduction

In Pierson v. Ray, 386 U.S. 547 (1967), this Court 
ruled that a police officer could not be held liable in damages 
under 42 U.S.C. § 1983 for effecting an arrest pursuant to a state 
statute subsequently held unconstitutional. Pierson, we submit, 
established no more than that a police officer should not be 
required to determine the constitutionality of state criminal 
statutes before he arrests a citizen for violating such statutes; 
that is, where his conduct in effecting the arrest is constitu­
tional, i.e., based upon probable cause, he should enjoy immunity 
from civil liability in damages to a person arrested for violating 
the unconstitutional statute. Implicit in the Pierson holding 
is a distinction between the liability of police officers in 
damages for acts carried out pursuant to unconstitutional state 
procedural statutes as opposed to acts pursuant to unconstitu­
tional state substantive statutes. We read Pierson as acknow­
ledging the existence of an immunity for police officers only 
in the latter category. It does not accord immunity to police 
officers acting under unconstitutional state statutes which 
dictate the manner in which arrests are to be made; such im­
munity exists only where the unconstitutional state statute 
defines criminal conduct which will provide the proper predicate 
for officers to make valid arrests.

The Sixth Circuit Court of Appeals has, in this case, 
promulgated a rule which represents an impermissible and un­
constitutional extension of this Court's holding in Pierson.
For it has decreed that a police officer acting pursuant to 
any state statute - procedural or substantive - not previously 
held unconstitutional is immune from liability in damages under 
§ 1983 for civil rights violations no matter how unconstitu­
tional his conduct. As discussed in more detail below, this

6



rule conflicts with a long-standing premise of federal consti­
tutional law that 42 U.S.C. § 1983 damage actions will lie 
against certain state officials acting in conformity with 
state law. It, in effect, blurs the carefully-framed dis­
tinctions between civil and criminal liability of state offi­
cials for violation of civil rights. Under its provision, 
resort to personal damage actions against peace officers by 
persons as a means of challenging unconstitutional state 
statutes is effectively foreclosed. And, finally, the doctrine 
announced by the Sixth Circuit erases the historic distinction 
between two accepted forms of constitutional attack of state 
statutes: on their face and as applied. At issue, in this case, 
therefore, is the constitutional scope on the "limited immunity" 
of police officers in § 1983 recognized by this Court in Pierson. 
Resolution of this question will, of necessity, determine the 
future of the personal damage action as an effective means of 
remedying unconstitutional and illegal acts by certain state 
officials. If the Sixth Circuit has correctly read Pierson, 
vindication of federal rights through personal damage actions 
will be restricted only to situation in which actions of state 
officials violate both state and federal statutes. A state, 
acting through its legislature and courts, will have it within 
its power to immunize its agencies and officials from liability 
under the Civil Rights Act by authorizing conduct the Constitu­
tion prohibits. Thus, where federal but not state law is 
violated, filing a federal suit for damages will become a 
nugatory act.

Furthermore, the Sixth Circuit has announced its rule 
in a case presenting constitutional questions of national im­
portance. Under the common law, police officers were justified 
in using necessary force, including deadly force, to effect the 
arrest of a resisting or fleeing felon. T.C.A. § 40-808, like

7



similar statutes in many other states, represents a codification 
of this common law doctrine. For many years, commentators, 
courts, governmental commissions, and even law enforcement offi­
cials have questioned the constitutionality and propriety of the 
use of deadly force in apprehending perpetrators of non-violent 
felonies, particularly where the fleeing felon is unarmed. Those 
who have studied the problem closely recount the numerous instan­
ces of wanton or negligent use of deadly force by police which

1/
have gone unremedied, the lack of police department regulations

2/
covering the proper use of deadly force, the role police use

1/ Brooks, Necessary Force - or Police Brutality, N.Y. Times, 
December 5, 1967 (Magazine) p. 60;
Chevigny, Police Power: Police Abuses in New York Citv 
at 237 (1969) ; ' — ---------------- ^
Cray, The Big Blue Line: Police Power v. Human Riqhts. 
at 157 (1967) ; --------------- 2---
Jacobs, Prelude to Riot: A View of America From the Bottom 
at 30 (1968) ; ----------------- ----------

LaFave, Arrest: The Decision to Take a Suspect Into Custody, 
Report of American Bar Foundation's Survey of the Administra- 
tion of Criminal Justice in the U.S. at 209-10, 213-14 (1965);
President's Commission on Law Enforcement and the Administra­
tion of Justice, Task Force Report: The Police, at 189-90 (1967).

2/ Chevigny, supra, n.l, at 239-40;
La Fave, supra, n.l, at 212;
Governor's Select Commission on Civil Disorder (New Jersey)
Report for Action, at 143 (February, 1968);
McNamara, "Uncertainties in Police Work: The Relevance of 
Police Recruits' Backgrounds and Training" in Bordua, The 
Police: Six Sociological Essays, at 191, n.24 (1967);
National Center on Police and Community Relations of the 
School of Police Administration and Public Safety, Michigan 
State University, A National Survey of Police and Community 
Relations. Field Survey V, The President's Commission on 
Law Enforcement and Administration of Justice, at 345, n.4 (1967)
President's Commission on Law Enforcement and the Administration 
of Justice, supra, n.l, at 189-90;
President's National Advisory Commission on Civil Disorders, 
Report, at 312-14 (Bantam ed.,1968).

-  8 -

_ ,,, .... ■_____ <______  ■



of deadly force has had in precipitating urban riots and exacer-
3/

bating already strained police-minority community relations
and the apparent discriminatory use of deadly force against

4/
blacks and other minorities. By immunizing police officers 
acting pursuant to state statutes not previously held unconsti­
tutional, the Sixth Circuit has effectively foreclosed any 
federal court challenge to, among other matters, present-day 
application of this common law doctrine relating to the use of 
deadly force.

I.
The Sixth Circuit Decision Conflicts 
With Prior Decisions of This Court 
And With Those of Other Circuits

A. The Sixth Circuit Decision Conflicts With 
Holdings That 42 U.S.C. § 1983 Damage 
Actions Lie Against State Officials Acting 
In Conformity With State Law
The Sixth Circuit holding in this case assumes that 

to admit civil liability for damages under § 1983 against state 
officials (in this case, police officers) acting pursuant to a 
state statute not previously held unconstitutional would do 
violence to the spirit and intent of that federal statute. 
However, as this Court's opinion in Monroe v. Pape, 365 U.S. 167 
(1961) establishes beyond question, the original understanding

3/ Chevigny, supra, n.l, at 237;
Bayley and Mendelson, Minorities and the Police: Confron­
tation in America, p. 100 (1969);
Shaffer, Negroes and the Police II Editorial Research Reports, 
681, at 683-84 (1964).

4/ Cray, supra, n.l, at 158-59;
Robin, Justifiable Homicide By Police Officers, 54 
J. Crim. L., C. & P.S. 225, 230-31 (1963).

f.’' 1 'A - . i h V  t'W..

9



of § 1983 was that it would provide a cause of action to 
persons challenging the acts of state officials carried out 
pursuant to state law. In Monroe, supra, the matter at issue 
was whether the concept "under color of state law" embodied in 
the language of § 1983 encompassed acts by state officials in 
violation of state law. Mr. Justice Douglas, writing for the 
majority, held that it did; Mr. Justice Frankfurter, in dis­
sent, urged to the contrary.

However, both the majority and minority in Monroe 
accepted the applicability of § 1983 to acts carried out by 
state officials pursuant to state law. As Mr. Justice 
Frankfurter pointed out, during the seventy years which fol­
lowed the enactment of § 1983, cases before this Court invoking 
the "under color" provisions "involved action in strict pursu­
ance of some specific command of state law or within the scope 
of executive discretion in the administration of state laws"
Id, at 212-21, notes 19, 20. In many cases, this Court held 
state officials liable in damages for violation of civil rights 
even though they acted pursuant to state statutes not previously 
held unconstitutional. Myers v. Anderson, 238 U.S. 368 (1915), 
Nixon v. Herndon, 273 U.S. 536 (1927), Nixon v. Condon, 286 U.S.
73 (1932) and Smith v. Allwright, 321 U.S. 649 (1944). In view
of the plain wording of § 1983, "under color of any statute, 
ordinance, regulation, custom, or usage, of any state" any other 
interpretation would defy accepted rules of statutory construction.

Smith v. Allwright, supra, is particularly noteworthy in 
this regard since the state officials held liable in damages 
there were acting pursuant to a statute drafted in reliance 
upon an earlier decision of this Court not overruled until 
Smith itself. See, Note, The Proper Scope of the Civil Rights 
Acts, 66 HARV. L. REV. 1285, 1299 n.74 (1953). The good faith 
reliance of these state officials upon apparently valid state

■ t .i . . . 4  - .-id5.A.«w»gffe—

10



statutes was considered relevant, not to the question of 
liability, but rather to the amount of liability. See Note,
The Doctrine of Official Immunity Under the Civil Rights 
Act, 68 HARV. L. REV. 1129, 1239-40 n.51, 52 and 53 (1955).

Nor have inferior federal courts regarded good faith 
reliance by state officials upon state statutes not previously 
held unconstitutional as a valid defense to federal civil rights 
damage actions. Herschel v. Dyra, 365 F.2d 17, 19-20 (7th Cir.), 
cert, den, sub, nom, Herschel v. Wilson, 385 U.S. 973 (1966);
Anderson v. Haas, 341 F.2d 497, 498-499 (3rd Cir., 1965); Smith 
v. Cremins, 308 F.2d 187, 188-189 (9th Cir., 1962); Marshall v . 
Sawyer, 301 F.2d 639, 646 (9th Cir., 1962); Hoffman v. Halden,
268 F.2d 280, 298-299 (9th Cir., 1959). The Sixth Circuit rule 
conflicts, therefore, not only with controlling decisions of 
this Court, but with interpretations given such holdings by at 
least three other circuits.

B.
cuit To Police Officers Acting In Good
Faith Under State Statutes Not Previously
Declared Unconstitutional Conflicts With
Prior Decisions Of This Court In That It
Erases The Crucial Distinction Between
Criminal A*nd Civil Liability Under § 1983
In Monroe v. Pape, supra, this Court enunciated the 

standard by which civil liability of state officials under 
§ 1983 should be measured in the following terms:

Section 1979 [the former designation of § 1983] 
should be read against the background of tort 
liability that makes a man responsible for the 
natural consequences of his actions (365 U.S. 
167, at 187).

Since Monroe, supra, lower courts have found state officials 
liable for damages under § 1983 for conduct ranging from willful 
infliction of bodily harm and illegal searches and seizures,
Cohen v. Norris, 300 F.2d 74, 79-81 (3rd Cir., 1962) and Basista 
v. Weir, 340 F.2d 74, 79-81 (3rd Cir., 1965) to cases of negli­
gence, Whirl v. Kern, 407 F.2d 781, 787, 788 (5th Cir., 1968)

and of "gross and culpable negligence", Jenkins v, Averett, 424



i

F.2d 1228, 1232-1233 (4th Cir., 1970).
In contrast, Screws v. United States, 325 U.S. 91 

(1941) established the applicable standard in cases charging 
state officials with criminal liability for deprivation of 
civil rights. In order to fix such liability, it must be shown 
that the defendant acted with "a specific intent to deprive a 
person of a federal right" Id.., at 103. Clark v. United States, 
193 F.2d 294 (5th Cir., 1951) reflects the incorporation of the 
Screws standard into the law of federal criminal civil rights 
prosecutions.under 18 U.S.C. § 242.

The rule articulated by the Sixth Circuit partakes
more of the Screws criminal standard than of the Monroe civil
standard of liability. In order to prevail against a state
official acting pursuant to a state statute not previously
held unconstitutional, according to the Sixth Circuit, one
must prove more than that the official acted and that the
natural consequences of his acts deprived another of his civil
rights; one must prove that the official acted pursuant to
state statute in bad faith, i.e., knowing that his reliance
upon state statute would result in a constitutional deprivation
or that the state statute was unconstitutional though not yet 

5/
declared so. Good faith action under the statute would serve 
to defeat a claim for damages for violation of civil rights.
This cannot be the law; mere good faith cannot suffice to thwart

5/ Indeed, the Sixth Circuit's decision taken to its logical 
conclusion would even make criminal prosecutions under 
federal civil rights statutes a practical impossibility. No 
matter how egregious his conduct, all a police officer would 
have to do would be to point to a state statute that purports 
to authorize it. This would present an absolute defense to 
any charge that he willfully and knowingly violated federal 
constitutional rights.

12



the assertion of federal rights. Beck v. Ohio, 379 U.S. 89, 
97 (1964).

C. The Sixth Circuit Doctrine Is In Conflict
With Decisions Of This Court That Establish 
The Right To Bring Personal Damage Actions 
To Challenge Unconstitutional State Statutes.
The personal damage action represents one of the most

respected techniques in our common law tradition for challenging
illegal or unconstitutional conduct by governmental officials.
As Mr. Justice Brennan recently remarked:

Historically, damages have been regarded as the 
ordinary remedy for an invasion of personal 
interests in liberty. Bivens v. Six Unkown 
Named Agents of Federal Bureau of Narcotics, 403 
U.S. 388, 395 (1971).

See also, Katz, The Jurisprudence of Remedies: Constitutional 
Legality and the Law of Torts in Bell v. Hood, 117 U. Pa. L. Rev. 
1, 8-33 (1968). Where constitutional violations by state offi­
cials have not preceded the bringing of criminal charges, only 
by way of personal damage actions could citizens effectively 
redress such infringements. In treating the illegal search and 
seizure question posed by Bivens, supra, Mr. Justice Harlan 
described this problem in the following terms:

Putting aside the desirability of leaving the 
problem of federal official liability to the 
vagaries of common law actions, it is apparent 
that some form of damages is the only possible 
remedy for someone in Bivens' alleged position.
It will be a rare case indeed in which an indi­
vidual in Bivens' position will be able to ob­
viate the harm by securing injunctive relief from 
any court. However desirable a direct remedy 
against the Government might be as a substitute 
for individual official liability, the sovereign 
still remains immune to suit. Finally, assuming 
Bivens' innocence of the crime charged, the 
'exclusionary rule' is simply irrelevant. For 
people in Bivens' shoes, it is damages or nothing.
Id., 403 U.S. 388, 409-410.

Petitioner Beech is certainly one of those people 
"in Bivens' shoes". Since he was not charged with an offense 
based upon "fruits of the poisonous tree" in violation of

-  13 -



t

the Fourth Amendment, the exclusionary rule cannot be used to
challenge the unconstitutionality of means used to apprehend

§/him. And, as indicated by a recent lower court decision 
treating the facial constitutionality of Tennessee Code Anno­
tated 40-808, the possibility of injunctive relief for people 
like Beech is substantially circumscribed by restrictive 
standing requirements. Cunningham v. Ellington, 323 F.Supp.
1072 (W.D.Tenn., 1971).

Once shot, how can a victim establish that there is 
a likely prospect that he will be shot again under similarly 
unconstitutional circumstances to warrant injunctive relief 
to prevent another violative act? And even if injunctive relief 
were available, it could not correct the prior violation of his 
constitutional rights. Were recourse to personal damage action 
unavailable to the Bivens and Beeches, it would be difficult 
to imagine how certain unconstitutional practices would ever 
have to face court scrutiny. Yet the Sixth Circuit by its 
new rule, would deny Beech an effective opportunity to press 
his personal damage action and relegate him to pursue other 
remedies which, upon analysis, prove non-existent.

6/ And in the case where an illegal search and seizure did 
uncover contraband, under the Sixth Circuit rule, seeking 
exclusion of such fruits in criminal prosecutions would 
be the only recourse available to the defendant, The 
Si^th Circuit rule would render infeasible any federal 
court movement away from reliance upon the exclusionary 
rule to personal damage actions as a means of curbing un­
constitutional police conduct. Coolidge v. New Hampshire 
403 U.S. 443, 493 (1971); BivensT, supra, at 635-644. ’

- 14 -

r-



D. The Sixth Circuit Doctrine Is In Conflict
With Decisions Of This Court That Establish
A Distinction Between A Constitutional Test
Of A State Statute "On Its Face" And A Test
Of Such A Statute "As Applied".
In Yick Wo v. Hopkins, 118 U.S. 356 (1886), this 

Court acknowledged that statutes constitutionally valid on 
their face, could be rendered unconstitutional as a conse­
quence of their discriminatory application. State statutes 
are rarely declared unconstitutional on their face except in 
the case of criminal statutes "so vague that a person of 
common understanding cannot know what is forbidden", Lanzetta 
v. New Jersey, 306 U.S. 451 (1939), or where laws broadly 
forbid conduct or activities which are protected by the Consti­
tution, particularly under the First Amendment, Thornhill v. 
Alabama, 310 U.S. 88 (1940) and Edwards v. South Carolina, 372 
U.S. 229 (1963). Therefore, the Yick Wo doctrine of unconsti­
tutionality "as applied" has proven a useful tool for challen­
ging governmental action pursuant to state law in less crucial 
areas of constitutional adjudication.

Under the Sixth Circuit rule, it is difficult to en­
vision how one could effectively prosecute a personal damage 
action against state officials who, in good faith, applied a 
constitutional state statute in an unconstitutional fashion; 
state officials acting in good faith reliance upon the facial 
constitutionality of the statute, that court appears to hold, 
should not be penalized for failing to comprehend that such a 
statute can have unconstitutional applications. This is par­
ticularly so of defendants in a case which raises the consti­
tutionality of a state statute "as applied" for the first time.

- 15 -

■ - -



II.
If The Decision Of The Sixth Circuit Is
Read to Hold That The Use of Deadly Force
Is Constitutional Regardless of Circum-
stances, Then It Presents an Issue of Great
National Importance That Should Be Resolved
By This Court.

As the foregoing discussion indicates, the Sixth 
Circuit rule, given its leteral interpretation, represents a 
drastic and unwarranted break with significant and well- 
established constitutional principles. In view of the terse, 
cryptic fashion in which the rule was enunciated, it may be 
that such a deviation from prevailing doctrines was not in­
tended by the court. Rather, the Sixth Circuit may have sought 
to adhere to the distinction established by Pierson, supra, 
between good faith acts pursuant to unconstitutional state
procedural statutes and good faith acts pursuant to unconsti-

7/
tutional state substantive statutes. If that is the case, 
its decision could be read as holding that the use of deadly 
force against a fleeing felon is constitutional regardless of 
circumstances.

Petitioner challenged the constitutionality of a Ten­
nessee procedural, as opposed to substantive, statute. Under 
Under Pierson, the Sixth Circuit could not properly determine 
that the police officers who shot Beech were free from civil 
liability for damages merely because of their good faith reli­
ance upon T.C.A. § 40-808. It had to decide that T.C.A. § 40-808 
authorized constitutional, not unconstitutional, acts by police

7/ The Sixth Circuit is not alone in finding the Pierson, supra 
rule difficult to apply in non-arrest situations. For ex­
ample, Guido v. City of Schenectady, 404 F.2d 728 (2nd Cir., 
1968) involved the civil liability of police officers for con­
ducting an illegal wiretap pursuant to a state statute held 
unconstitutional by this Court subsequent to completion of 
the acts at issue there. Though the defendants were acting 
under a procedura1ly unconstitutional state statute, the Sec­
ond Circuit held that the officers were immune from liability 
for damages. As Judge Waterman's dissent demonstrates, the 
scope of immunity granted by Pierson is still very much in 
question. _Id. at 742-743.

16



officers. For the reasons outlined in Part I, supra, if the
statute authorized unconstitutional acts, the good faith reliance 
of Gallo and Melancon upon the statute in order to engage in un­
constitutional behavior would not shield them from liability in 
damages.

The apparent justification for the Sixth Circuit's 
failure to inquire into the constitutionality of T.C.A. § 40-808 
was that the matter had already been resolved by Cunningham v. 
Ellington, supra, which held the statute not unconstitutional 
on its face. Quite to the contrary, however, the question of 
the constitutionality of state statutes like T.C.A. § 40-808 
which appear to authorize the use of deadly force by police 
officers to apprehend fleeing felons who pose no threat to the 
safety of officers or third persons has been a matter of debate 
in the United States for nearly a hundred years. The federal 
due process questions continue to be real and significant. 
Therefore, if the Sixth Circuit's decision is read to hold that 
such actions are constitutional, then it presents an issue of 
great national importance that should be resolved by this Court.

As this Court once stated:
Due process of law thus conveys neither formal 
nor fixed nor narrow requirements. It is the 
compendious expression for all those rights which 
the courts must enforce because they are basic 
to our free society. But basic rights do not 
become petrified as of any one time, even though 
as a matter of human experience, some may not too 
rhetorically be called eternal verities. It is 
of the very nature of a free society to advance 
in its standards of what is deemed reasonable and 
right. Representing as it does a living prin­
ciple, due process is not confined within a 
permanent catalogue of what may at a given time 
be deemed the limits or the essentials of funda­
mental rights. Wolf v. Colorado, 338 U.S. 25,
27 (1949).

A similar concern with due process as an evolving constitu­
tional standard can be found in other decisions of this Court 
from Snyder v. Massachusetts, 291 U.S. 97 (1932) through Brown 
v, Mississippi, 297 U.S. 279 (1936), Palko v. Connecticut, 302

17



U.S. 319 (1937) and Rochin v. California, 342 U.S. 165 (1952)
to Furman v. Georgia, 408 U.S. 238 (1972).

Basic to the concept of due process of law in a 
critiminal case is a trial - a trial in a court of law, not 
a "trial by ordeal". The right to be shielded from "summary 
punishment" is basic to our view of ordered Liberty. Screws 
v. United States, supra; Clark v. United States, supra;
Jenkins v, Averett, supra; Stringer v. Dilger, 313 F.2d 536 
(10th Cir., 1963); Jackson v. Duke, 259 F.2d 3 (5th Cir., 1953); 
and Brooks v. Moss, 242 F.Supp. 531 (W.D.S.C. 1965). There are 
strong arguments to the effect that the use of deadly force 
under certain circumstances authorized by T.C.A. § 40-808 no 
longer comports with society's "standards of what is deemed 
reasonable and right." Where, as in the case at hand (1) peti­
tioner was fleeing from a non-violent felony against property;
(2) petitioner was unarmed and so observed by the defendant;
(3) The officers took no measures short of deadly force to 
apprehend petitioner; and (4) the deadly force employed by the 
officers was of such magnitude as to create an expectation on 
the part of a reasonable man that death or grievous bodily harm 
would result, the use of such force might be regarded as viola­
ting due process strictures against the infliction of summary 
punishment.

It cannot be denied that the use of deadly force to
§/apprehend any fleeing felon was sanctioned by the common law. 

However, numerous commentators have pointed out that develop­
ment of the common-law right to employ deadly force was, in 
large part, dictated by the fact that all felonies were punish-

8/ 4 Blackstone Comm. 292, 293 (7th ed.).

18



9/
able by death. However, almost without exception these legal 
scholars have concluded that continued recognition of the com­
mon-law right to employ deadly force in the apprehension of 
unarmed persons fleeing from the commission of non-violent
felonies against property is at war with modern concepts of

!0_/
due process.

9/ The common-law felonies were murder, rape, manslaughter, rob­
bery, sodomy, mayhem, burglary, arson and larceny (petit lar­
ceny was not punishable by death) - criminal acts which all 
posed threats to person or body. Wilgus, Arrest Without a 
Warrant, 22 MICH. L. REV. 541, 569 (1924); Perkins, Criminal 
Law, 881 910 (1957); Note, Justification for the Use of Force 
in Criminal Law, 13 STAN. L. REV. 566, 577 (1961).

10/Michael & Wechsler, Criminal Law and Its Administration, 
p .82 n.3 (1940);
Safer, Deadly Weapons in the Hands of Police Officers, On 
Duty and Off Duty, 49 J. Urb. L. 565 (1971);
Rummel, The Right of Law Enforcment Officers to Use Deadly 
Force to Effect an Arrest, 14 N.Y.L.F. 749 (1968);
McDonald, Use of Force by Police to Effect Lawful Arrest,
9 CRIM. L.Q. 435, 451-52 (1967);
Perkins, The Law of Arrest, 25 IOWA L. REV. 201,279-80 (1940);
Tsimbinos, The Justified Use of Deadly Force, 4 CRIM. L. BULL.
3, 15-20 (1968);
Prosser, Law of Torts, §26 (2d ed. 1955);
Greenstone, Liability of Police Officers for Misuse of Their 
Weapons, 16 CLEV. MAR. L. REV. 397, 400-05 (1967);
Note, The Civil Liability of Peace Officers for Wounding or 
Killing, 28 U. CINC. L. REV. 488 (1959);
Moreland, The Use of Force in Effecting or Resisting Arrest,
33 NEB. L. REV. 408 (1954);
9 ALI Proceedings 180 (1930-31);
Note, The Use of Deadly Force in the Protection of Property 
Under the Model Penal Code, 59 COLUM L. REV. 1212, 1217-26 (1959);
Note, The Appropriateness of Deadly Force, 15 HOW. L. J. 306 
311-13 (1969);
Note, Legalized Murder of a Fleeing Felon, 15 VA. L. REV.
582 (1929);
Gremel, When Can A Policeman Use His Gun, 40 J.CRIM.LAW 756(1950);
Bohlen and Schulman, Arrest With and Without a Warrant, 75 
U. PA. L. REV. 485, 494-504 (1926-27); and
Hall, Legal-Social Aspects of Arrest Without a Warrant, 49 
HARV. L. REV. 566 (1936).

19



11 / 12 /
Various state and federal courts have found

difficulty in strict application of the common law rule.
And Mr. Chief Justice Burger has noted that the common law
rule may clash with currently-held views of due process:

From time to time judges have occasion to 
pass on regulations governing police proce­
dures. I wonder what would be the judicial 
response to a police order authorizing 
"shoot-to-kill" with respect to every fugi­
tive. 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 con­
victed killer but surely not for a car thief, 
a pick-pocket or a shoplifter. Bivins v.
Six Unknown Named Agents of the Federal Bureau 
of Narcotics, 403 U.S. 388, at 419.

Because of the seriousness and importance of the 
issues raised by the Sixth Circuit rule established in 
Beech, it is imperative that this Court review the decision 
below.

11/ Reneau v. State, 70 Term. 720 31 Am. Rep. (1879);
Scarborough v. State, 76 S.W. 2d 106 (1934); Storey 
v. State, 71 Ala. 329 (1882); Commonwealth v. Chermansky, 
430 Pa. 170 242 A. 2d 236, 240 (1968); Love v. Bass,
145 Tenn. 522, 238 S.W. 94 (1921).

12/ Jackson v. Martin, 261 F.Supp. 902, <=>05 (N.D. Miss., 1966) 
Sauls v. Hutto, 304 Supp. 124 (E.D. La., 1969).



L

Conclusion

For the above reasons, the petition for writ of 
certiorari should be granted .

Respectfully submitted,

JACK GREENBERG .
JAMES M. NABRIT, III 
CHARLES STEPHEN RALSTON 
DREW S. DAYS, III 

10 Columbus Circle 
New York, New York 10019

WALTER L. BAILEY, Jr.
Ratner, Sugarmon & Lucas 
525 Commerce Building 
Memphis, Tennessee 38103

Attorneys for Petitioner

21



i

A P P E N D I X

__



IN T11H UIIITIID CTATKS I'lGTWCT COURT
IOR Tim LTk'.TLLN DILTT-IOT OF TLNNDLLiE
__________ •>•• -.-.Thru m vi~ion___________ _

rcuLiiT ellcii, )
Plaintiff, )

V. )

Ij. J. MEIdUlCON, individually )
and a:. Police officer of tho 
Me; j his Police Cor -arUic-nt and )
P. J. GALLO, individually and 
ar. Police Officer of the Mci.iphio )
Police Department,

)
Dofendanta.

MEMORANDUM OPINION

On a midsummer evening, Jv.no 17, 1970, sometime be­
tween twelve midnight and one o'clock, plaintiff, Beech and his 
cohort in crime, Crenshaw, were surprised in the act of burglarizing 
a filling etation in a South Memphis neighborhood by two policemen, 
the defendants, Melancon and Gallo. Thera followed a tragic episode 
between the felons, both black, heedlessly and recklessly seeking 
escape and the law officers, both white, charged with the heavy re­
sponsibility of capture. Thin case cam® on to be heard by tho Court 
without a jury in an atoraosphore charged with unfortunate connotations 
of recent racial animosity, the plaintiff and hin counsel a part of 
the black community charging a violation of civil eind constitutional 
due process rights, and tho dofendanta a part of the predominate 
white establishment asserting the imperatives of lav and order.

Tho evidence shows that on that fateful night Beech 
and Crenshaw, only recently out of the Army (Beech by reason of an

" discharge) broke into tho service station, forced their

CIVIL ?iCTI0N 
NO. C-/1-117

undesirable



way into vending machines and a r.fcock of morchandir-o and success— 
fully carried away a part of tho loot only to return for a crack at 
the tafo. They were observed by a pnacerby during the attempt to 
open the rate and were reported to tho officers cruising nearby in 
a squad car. The police officers came immediately and with guns 
drawn, ordered the plaintiff and his associate to stand fast pre­
paratory to arrest. Apparently tho first to see the police, Crenshaw 
ran, followed by Beech to tho rear through a storage area, and buret 
out of the back door of the station headed in tho direction of an 
area of undergrowth, bushes and trees.

Though ordered to halt by Melcncon who arrived at 
tho back area first with shotgun in hand, Crenshaw ran "full tilt" 
to tho cast through high grass and brush. Melancon fired twice at 
tho fleeing Crenshaw, hie second blast mortally wounding him at a 
distance of some S7 foot. Kolancon then fired at Beech, also running 
ecared at top epoed and veering off in tho direction of a row of 
trees and bushes adjacent to a nearby Park. In tho meantime during 
a frantic Cgw seconds, Callo canie on tha dark scena having first 
attempted an approach from an opposite direction, and after also 
shouting for the fugitives to stop fired four shots at tho figure of 
Beoch in ft whit© T shirt darting through the undorgrowth and trees. 
Two of Gallo's pistol shots struck Beoch from a distance of more than 
50 yards in tha back, but he managed to stumble to tho area of hia 
sister's house a block or so away before being captured.

Ko are confronted with this Ibsuo - were the patrol­
men acting within their lawful authority under tho circumstances in 
using ultimate forco of firearms to attempt to effect tho capture?
Or were tho rights of Beoch, tho plaintiff seeking damages for hio

I

"T-mr* --****■ -

2



t

periooo and gainful injury, violated by tho police defendants?
It ie conceded that defendant (Jallo fired tho ihots 

that wounded beech, but both defendants were in tho process of try­
ing to take him into thoir custody and of uoinj their weapons in 
order to do b o. The defendantn had an opportunity for a split second 
to observe beech in conus light and detected no weapon in his pomeB- 
sion. In fact, only a screwdriver was found and Beech's shoes in 
tho area whore tho shots woro fired. At the time Beech emerged from 
the building running ho v/ac porhapn twenty t.o twenty-five feet from 
Melancon proceeding into ti dark area in company with and behind 
another who was similarly about to escape. Beoch must have heard at 
lease one warning to stop and he did hear several shotgun blasts with­
out doing anything except to increase hio attempt to escapo. The 
officers testified that they could not have caught the plaintiff in 
tho dark in the surroundings in a chsao on footr they did not know 
whether other confederates might be in tho area which offered con­

siderable cover for eluding thorn.
This cnee must bo decided with reference to T.C.A.

40-300t

“40-008. Resistance to officer. - If, after 
notice of the intention to nrror.t the defendant, 
ho either flee or forcibly resist, the officers 
may use all the necessary means to arrest."

This statute was recently sustained in an attack on its constitutional­
ity by a three judge Federal Court. (Cunningham v. r.lllngton, Civil 
No. 70-250, decided 3-5-71, U.S.D.C., W.D., Tenn.) in which Chief 
Judge Harry Phillips, a Tennessean, obsorvedi

“. . .this statute means, in the present con­
text, that an officer nay use force that may 
result in death in preventing tho escape of a 
porson that fca is attempting to arrest if (1)

■ r~

3



he reasonably believes that the person 
has committed a felony and (2) ho noli flee 
the person that he intends to arrest him and 
(3) ho reasonably bolievos that no means loss 
than such l'orco will prevent tho escape. Tho 
parties also agree that, s.o construed, the 
statute merely states the common law,”
Hero tho defendant officers obBorved tho commission 

of a felony by plaintiff which was reported to them by other eye­
witnesses; and they notified plaintiff of their intention to take 
him into custody and plaintiff knew this to bo tho situation. Did 
they reasonably believo that no means loss than the use of a firearm 

would prevent Beech's escape?
Ko agree with Judge Phillips and our fellow District

Court Judges*
"It may v.'ell bo, as plaintiffs argue, that 
as a matter of valuo judgment it would be 
better to allow persons thought to bo felons 
to escape than to incur the risk of billing 
them. Indeed, ob far back no i'tiu-au v. .State,
70 Tcnn. 720 (1C75), the Tennessee uuDreme Court 
suggested that, in view of the increase of crimes 
defined as felonies, tho rule of law allowing 
officers to shoot at escaping persona thought to 
be felons should be re-examined. This, however, 
is a policy question for the Tennessee legisla­
ture or perhaps tho Tennessee courts and not for 
tho federal courts in tho guir.o of constitutional 
adjudication.”
Ko conclude, ovon if it in a roluotant conclusion, 

that the officers in tho exercise of judgment wo cannot characterise 
as unreasonable, used what they felt to ba the only practicable 
means available under difficult circumstances and under tho authority 
of Tennesseo law to prevent plaintiff's escape. We particularly 
regret (a feeling tho defendants no doubt share) that such force as 
was used was felt to bo necessary, but v.-o hold that tho plaintiff 
has failed to carry the burdon of persuasion that the force used by 
defendants was unnecessary and excessive to prevent his escape under

v

4



th e  c ir c u m s ta n c e s .  Wo c o n s id e r  t h a t  p l a i n t i f f  a d m it te d  co m m iss io n  

o f  a t e r io u i i  f e lo n y i  In d e e d , ho had a l r e a d y  co m m itted  a f e lo n y  a t  

t h iu  l o c a t i o n  and war. th e n  p r e p a r in g  to  co fu i.it  a n o th e r  I n  ro b b in g  

a ! a C r j  and f u r t h e r  t h a t  ho r e a l i z e d  t h a t  h i s  c a p u t r e  war. im m in en t 

u n le s s  ho c o u ld  f in d  r e fu g e  in  th e  d a rk n a e a  o f  n ig h t  i n  an  a r e a  

w h ere  p u r s u i t  and o b s e r v a t io n  w o u ld  b e  mor.t d i f f i c u l t ,  i f  n o t  im ­

p o s s ib l e ,  p a r t i c u l a r l y  w h ere  th o ro  w e re  two p e rs o n s  f l e e in g  and 

o n ly  tw o  o f f i c e r s  t o  a t te m p t  t o  c h a se  them  down in  an a r e a  un­

f a m i l i a r  t o  them , r l a i n t i f f  ig n o re d  th o  sh o u te d  w a rn in g s  and h e a rd  

s h o ts  a im ed a t  h i s  comp-anion w ith o u t  B to p p in g  o r  c o m p ly in g  w i t h  th e  

p ro p e r  o r d e r s  o f  th e  p o l i c e .  U nder th e  c ir c u m s ta n c e s ,  p l a i n t i f f  was 

a t  l e a s t  c o n t r ib u t in g  t o  h ie  own i n j u r y  and damage d i r e c t l y  and  p ro x -  

im a t o ly  t a k in g  in t o  a c c o u n t  a l l  th o  f a c t o r s  p r e s e n t .  I h i r .  in  n o t  

t o  im p ly  t h a t  p o l i c e  m ust n o t  make e v e r y  r e a s o n a b le  e f f o r t  to  p u r ­

su e  and t o  a t te m p t  c a p tu ro  w ith o u t  r e s o r t  t o  use  o f  f i r e a r m s  w h e re v e r  

p r a c t i c a l ,  and t h a t  t h e i r  u se  o f  f i r e a r m s  may n o t  s u b je c t  them  to  

l i a b i l i t y  when shown to  bo  u n r e a s o n a b le .  S e o  L o v e  v .  B a n s , 145 

T en n . 522 (1921) w h ere  th e  c o u r t  h e ld  i t  t o  bn  n q u e s t io n  o f  f a c t  

a s  t o  w h e th e r  e x c e s s iv e  f o r c a  wee in v o lv e d  i n  th o  a t te m p te d  a r r e s t  

and c a p tu r e  o f  a  m o o n sh in e r k i l l e d  i n  th e  c o u r s e  o f  e v e n t s ,  and 

S c a rb ro u g h  v .  S t a t e , 160 Tonn . 106 (1934) w h e re  o n e  th o u g h t  t o  h a v e  

c t o le n  a c a r  was k i l l e d  w h i le  f l e e in g  on fo o t  b y  one  o f  t h r e e  p u r ­

s u in g  d e p u ty  s h e r i f f s  who was o n ly  tw e n ty  f i v e  f e e t  aw ay a t  t h a  

t im e  h e  f i r e d  th e  f a t a l  s h o t .  The c o u r t  o b s e rv e d  i n  th o  S c a rb ro u g h  

c a s e ,  s u p ra , t h a t  * i t  i s  n o t shown w h e th e r  th e  n a t u r a l  s u r ro u n d in g s  

(a  c a m p s ite )  w o u ld  h a v e  made i t  p o s s ib le  t o  e a s i l y  c a p tu r a  Jo h n s o n  

a f t e r  h i s  f l i g h t . "

F i n a l l y ,  w h i le  h o ld in g  f o r  d e fe n d a n ts  w i t h  some



r e lu c t a n c e ,  wo a re  c o n s t r a in e d  to  r e p e a t  th e  a d m o n it io n  o £ a 

M in f i s o ip p i  C o u r t  i n  Jo h n s to n  v .  Cunningham . 10/ M is s .  149, 65 S o . 

117«
" O f f i c e r s  s h o u ld  make a l l  r e a s o n a b le  
e f f o r t s  to  app reh en d  e r in . in a l s j  r u t  t h i s  
d u ty  doer, n o t  j u s t i f y  th o  u re  o f  f i r e a r m s  
e x c e p t  in  th e  c a r e r  a u th o r iz e d  by  lav/.
O f f i c o r r ,  ac  v /o ll a r  o th e r  p e r r o n s ,  sh o u ld  
h a v e  a  t r u e  a p p r e c ia t io n  o f  th o  v a lu e  o f  a 
human l i f e . "

The  c a s e s  a u th o r iz e d  b y  o u r  la w  i n d i c a t e  th e  u se  o f

firo .ari.v8  b y  a p o l i c e  o f f i c e r  to  be  j u s t i f i e d  o n ly  when t h i s  i s  th e  

o n ly  r e a s o n a b le  and p r a c t i c a b l e  means o f  t a k in g  a f e lo n  o r  p r e v e n t ­

in g  h i s  e o c a p a ; " y e t  in  d o in g  so  th o  o f f i c e r  a c t s  a t  h i s  n e r i l .  . . "  

S t a t e  v .  P u n n , 39 T en n . App. 190, 197 (1 9 4 3 ).

L e t  a  judgm ent b e  e n te r e d  f o r  d e fe n d a n ts  M o lan co n

and G a l lo

t>* waiiiori
U 1U 1X0 STATES D IST R IC T  COURT JUDGE

^  TKCL' Cbi'i- 
A.TTU3T:

LEOTU JoSLNi-Oii'Ob', C

By

6

_______________________



No. 72-1167

^ 7 A T ^  r n s p T  r>r*hr & k"~ 4 A Lj W  W k 3 '*>■*’ d
FOR THE SIXTH CIRCUIT

a a ? <?
' '4 a £ iU« •"'A u. 1 fcu*

Robert B eech,
Plaintiff-Appellant,

v.
D. J. M elancon and P. J. Gali.o,

Defendants-Appellees.

A p r e a l from tlie 
United States District 
Court for the West­
ern District of Ten­
nessee, Western Di­
vision.

Decided and Filed July 31, 1972. V , .

• Before: E dwards, McCree and Kent, Circuit Judges. i.

Per Curiam. This is an appeal from a judgment for the 
defendants in a civil rights action instituted by the plaintiff 
claiming damages resulting from having been shot by the de­
fendant police officers while attempting to escape from the i
scene of a burglary. The plaintiff and one Crenshaw were 
attempting to rob a safe in a gas station when the defendant 
police officers stopped their patrol car in front of the gas 
station. Plaintiff and Crenshaw attempted to make an escape 
from the scene of the felonious activity.

The District Judge found that they were warned to halt 
and were informed that the defendants were police officers.
When they did not halt the defendants fired, Crenshaw was
killed and Beech was wounded. ;

The single issue here presented is whether the trial court 
was guilty of clear error in concluding that the defendants were 
justified in the use of deadly force to apprehend the plain­
tiff. A Tennessee Statute, T.C.A. S T0-S03, authorizes a police 

v */
» i-

i ** *
4 V

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______________ _______•__



t

2 Beech  v. Mclancnn and Callo No. 72-11G7

officer under the circumstances set forth above to “° 0 ° use 
all the necessary means to effect the arrest.” This Statute 
has been recently construed and found to be constitutional 
by a Three-Judge District Court. Cunningham v. Ellington 
323 F.Supp. 1072 (W.D. Tenn. 1971). °In any event" the! 
police officers were entitled to assume the constitutionality of 
the Tennessee Statute. “State statutes like Federal ones are 
entitled to the presumption of constitutionality until their in- 
validiy is judicially declared.” Davies W arehouse Compann v. 
Bowles, 321 U.S. 141, 153 (1914), and see also McDonald v 
Board o f Election, 394 U.S. S02, SOS, 809 (1969)- Davis v 
Department o f Labor, 317 U.S. 249, 237 (1912).

On this record the District Judge had evidence to justify 
his finding that the officers used only the "necessary means to 
effect the arrest. The plaintiff and his accomplice were en­
gaged in a safe robbery and attempted to escape in the dark 
of night through weeds and bushes after being warned that 
police officers were present with guns. We cannot say that 
the Distiict Judge was guilty of clear error.

The judgment is affirmed.

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» iZ jH  A . JoLUirttstin t • B U H n



No. 72-1107 Bcccli v. Mclancon and Callo 3

McCkef., Circuit Judge (concurring). I agree with the re­
sult reached by the court’s opinion to the extent that it rep­
resents a conclusion that the District Court properly deter­
mined that no constitutionally protected right of appellant was 
violated because the oificcrs employed force reasonably pro­
portionate to the interests sought to be protected. The facts 
of this case present an example of a situation in which courts 
should not second-guess police officers who, faced v ith mak­
ing split-second decisions, reasonably and in good faith be­
lieve that their lives or those of third persons would be en­
dangered if they refrain from employing deadly foice to 
attempt to apprehend fleeing felons whose arrest cannot rea­
sonably be accomplished by less dangerous means. Because 
I believe that the officers’ conduct satisfied constitutional 
standards in this case, I do not find it necessary to reach the 
question whether the Tennessee statute under the authority 
of which the officers acted is constitutional of whether its 
existence provides a qualified immunity to the officers. See 
Pierson v. Ray, 3S6 U.S. 54/ (196 i). I prefer to reserve 
judgment on the question of the constitutionality of such 
a statute as applied to a situation in which the alleged felon 
has not committed a crime that poses a threat of death or seri­
ous bodily harm to other persons, and has not indicated by 
his subsequent behavior in avoiding arrest that he will pose 
a similar threat to members of the community if he is allowed 
to escape. For example, I would find it difficult to uphold 
as constitutional a statute that allowed police officers to snoot, 
after an unheeded warning to halt, a fleeing income tax 
evader, antitrust law violator, selective service delinquent, or 
oilier person whose arrest might be sought for the commis­
sion of any one of a variety of other felonies of a type not 
normally involving danger of death or serious bodily harm.

*

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