Milliken v. Michigan Road Builders Association, Inc. Jurisdictional Statement and Appendix

    INDEX

Page

Table of Authorities ...................................  ii “ iii
Statement of Issues Presented for Review ...............  1
Statement of the Case ..................................  2
Statement of the Facts .................................  5

ARGUMENT

I. THE DISTRICT COURT DID NOT ERR IN FINDING THAT 
OFFICER HYMON WAS JUSTIFIED IN USING HIS
WEAPON TO APPREHEND EDWARD EUGENE GARNER...... 15

TENNESSEE V. FEDERAL LAW .....................  21

II. THE DISTRICT COURT DID NOT ERR IN FINDING THAT 
THE HIRING, TRAINING AND SUPERVISORY PRACTICES 
AND PROCEDURES OF THE CITY OF MEMPHIS, MEMPHIS 
POLICE DEPARTMENT, THE MAYOR AND THE DIRECTOR 
OF POLICE OF MEMPHIS WERE ADEQUATE WITH RESPECT
TO DEFENDANT HYMON AS A POLICE OFFICER.........  23

III. THE DISTRICT COURT CORRECTLY FOUND THAT THE USE 
OF "HOLLOW POINT" AMMUNITION 3Y THE MEMPHIS 
POLICE DEPARTMENT DID NOT VIOLATE STANDARDS OF 
CIVIL CONDUCT SO AS TO SHOCK THE CONSCIENCE OF 
COURT.........................................  2 4

CONCLUSION ............................................  2 6

CERTIFICATE OF SERVICE ................................  26

l



Table of Authorities

Cases:

Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972) ..
Cunningham v. Ellington, 323 F.Supp 1072 (W.D.Tenn 

1971) ........................................
Davies Warehouse Company v. Bowles, 321 U.S. 144 

(1944) .....................................
Davis v. Department of Labor, 317 U.S. 249 (1942) 
Johnson v. Glick, 481 F.2d 1028 (2nd Cir. 1973) .
Love v. Bass, 145 Tenn 522, 238 S.W. 94 (1922) ..
McDonald v. Board of Education, 394 U.S. 802 (1944 
Mattis v. Schnarr F.2d .....
Qualls v. Parrish, 534 F.2d 690 (6th Cir. 1976) .
Rochin v. California, 343 U.S. 165 (1952) ......
Rosenberg v. Martin, 478 F.2d 520 (2nd Cir. 1972)
Scarborough v. State, 168 Tenn. 106, 76 S.W.2d 106 

(1934) .......................................
Smith v. Jones, 379 F.Supp. 201 (M.D.Tenn. 1973) .
Terry v. Ohio, 392 U.S. 1 (1968) ................
United States v. Jarboe, 513 F.2d 33 (8th Cir. 1975)
United States v. Van Roeder, 435 F.2d 1004, (10th Cir.

1971) ........................................

Page

16, 20, 21

16

17
17
25

16, 22 
17

17, 18 
22
24
25

16
21
19
22

22

Wiley v. Memphis Police Department, 548 F.2d 1247
(6th Cir.‘ 1977) ...............................  16, 17, 21, 22

STATUTES:

T.C.A. §40-808 3, 13, 15, 16, 23

-  i i



28 U.S.C. §1331 .................................. 2
28 U.S.C. §1343(3)   2
42 U.S.C. 1981 ................................... 2
42 U.S.C. 1983 ................................... 2
42 U.S.C. 1985. ................................... 2
42 U.S.C. 1986 ................................... 2
42 U.S.C. 1988 ................................... 2
28 U.S.C. Rule 52(a)   21

AUTHORITIES:

Restatement of Torts §131(1934) ..................  17

i l l



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

NO. 77-1089

CLEAMTEE GARNER, ET AL,
Plaintiff-Appellant

VS .
MEMPHIS POLICE DEPARTMENT, ET AL, 

Defendants-Appellees.

Appeal from the United States District 
court for the Western District of Tennessee 

Western Division

BRIEF FOR APPELLEES

STATEMENT OF ISSUES PRESENTED FOR REVIEW

1. Whether the District Court erred in finding 
that E. R. Hyman, an officer of the Memphis Police Department, 
acting under Color of Law was justified in using his weapon 
to apprehend Edward Eugene Garner a fleeing felon to prevent 
his escape.

1



2. Whether the District Court erred in finding 
that the hiring, training, and supervisory practicies and" 
procedures of the City of Memphis, Memphis Police Department, 
the Mayor and the Director of Police of Memphis, were adequate 
with respect to the employment of defendant Hyman as a 
police officer.

3. Whether the District Court erred in finding 
that the use of "hollow point" ammunition by the Memphis 
Police Department did not violate standards of civilized 
conduct so as to shock the conscience of the Court.

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 Office of the City 
of Memphis.

2



The suit alleges that defendant Hyman violated the 
constitutional 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 13, 1975.

Thereafter, on September IS, 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 production of documents, the case came on for 
trial on August 2, 1976, before the Hon. Harry W. Wellford,

3



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 Eire 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 following 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 deposition 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.

4



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.

STATEMENT OF THE FACTS

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. 151, 258, 259, 268). Daisey Bell Statts, 737 Vollintine, 
a next door neighbor, observed evidence of a break-in and 
called the police. (App. 151, 266) Although the Statts 
house was not the one being broken into, the address of 737

5



Vollintine was given to the police. (App. 151, 745, 746, 
747) .

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.
151, 152, 744, 745, 804, 805). Upon arriving at 737 Vollintine, 
the officers saw Daisey Bell Statts standing on her porch 
pointing to the house next door. (App. 152, 746, 747, 809) 
Defendant Hyman questioned her about the situation and she 
said, "they are breaking in next door" (App. 152, 746, 747,
809). 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. 152, 747, 748, 809)

Patrolman Wright then moved the squad car to the 
curb, called the police depatcher to advise they were on the 
scene, picked up his flashlight and moved toward the east 
side of the house. (App. 152, 809, 810)

Defendant Hyman became aware that there was a 
light on inside the house as he proceeded down the west side 
towards the rear. (App. 152). As he approached the southwest 
corner of the house Hyman heard the back screen door slam

6



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. 152, 748, 749). The backyard of 739 Vollintine 
was completely encircled by fencing. (App. 152, 751).

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. 152, 751, 753,
755, 756). As defendant Hyman was standing 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. 152, 153, 758). Hyman could also 
make out a clothesline and the outline of objects in the 
backyard between him and the fleeing subject. (App. 153,
755) .

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 
out building located in the southeast corner of the yard. 
(App. 153, 354, 752) He did not appear to be armed, but 
Hyman could not be certain of this at the moment. (App.
153, 760)

7



Defendant Hyman immediately shouted "halt" and

identified himself. (App. 153, 752). Garner paused moment­
arily 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 head. (App. 153, 753, 754)

The area to the south beyond the fence was in 
darkness and there was poor illumination in the Anderson 
backyard. (App. 153, 749, 750). Hyman was not familiar 
with this particular location or neighborhood, having lost 
his way in proceeding to the site. (App. 153, 746).

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. 153, 810). As Patrolman 
Wright approached the southeast corner of the house, he 
heard a shot. (App. 153, 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 
north side right in the bend of the body. (App. 153, 812) 
Wright apparently did not hear Hyman's earlier indication to 
get Garner when Hyman first located him with his flashlight

8



as Garner paused before attempting to scale the fence.
(App. 153, 154).

An ambulance was called and Garner was transported 
to the hospital where he never fully gained consciousness.
(App. 154, 812)

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. 154, 269, 270)

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 investigated and reported. (App. 154, 
791) 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. 154,
788) The boy's father conceded that his son was somewhat of 
a problem for him, particularly since he (the father) worked 
at night. (App. 154, 183, 184, 208) When the father was 
notified of the boys death following the shooting he indicated 
to the police that he had been expecting something like this

9



to happen. (App. 828, 829)

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 one is acting under the influence of 
an intoxicant. (App. 154, 663, 692) 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. 154, 355, 658)
The blood alcohol content was sufficient to slow his reaction 
(App. 154, 664).

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. 155, 758, 776, 777) 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. 155, 749) He could detect only traces of tall underbrush 
and trees on the other side of the cyclone fence. (App.
155, 333, 334) He did not know the lay of the land in this 
area which was only a few blocks from the Garner home.
(App. 155, 750)

10



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. 754, 756) The factors that he 
considered were his difficulty in getting through the cluttered 
backyard, Garner already being half way over the six foot 
chain link fence, and 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, 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. 754,
755, 756, 757, 758, 759)

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. 478) 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. 478)

Captain John Colletta of the Memphis Police 
Department also testified as an expert witness on the 
question of when an officer was justified in using his

11



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, be stated that in his opinion,
Hyman was jusitified 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 burglarized 
the same. (App. 633)

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 presented to it. (App.
155, 724, 726, 764) There is nothing in the record to 
indicate that defendant Hyman had any propensity toward 
precipitous or reckless use of firearms as a police officer 
or otherwise. (App. 155)

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. 155, 635, 636) Memphis police 
instructors received training at the FBI Academy. (App.
155, 405) They taught police to fire at the largest target

12



present, usually the trunk or torso area, the "center mass".
(App. 155, 156, 449, 450) Police were given instruction 
also by legal advisers on the Tennessee law with respect to 
the use of lethal force. (App. 156, 424)

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. 156, 423)

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 stopping or 
neutralizing individuals with whom they were confronted in 
dangerous situations. (App. 156, 595, 596, 728, 729) This 
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. 156, 597)
Tests were conducted 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 effectively in "neutralizing" or incapacitating

13



an individual and less likely to penetrate through a target 
and thus continue in flight to the possible harm of others. 
(App. 156, 596)

During the term of Police Director Hubbard, the 
Memphis Police Department thereafter, following consideration 
of the Coletta recommendation, changed to the use of "hollow 
point" ammunition, specifically .38 Special Caliber Remington 
125 Grain, semi-jacketed hollow point. (App. 156, 157, 728, 
729, 730) Hubbard also established a Firearms Review Board 
to investigate incidences wherein police employed a firearm. 
(App. 157, 714)

"Hollow point" ammunition is used by many other 
police departments throughout the United States and by the 
FBI, although it is more lethal in its effect. (App. 157, 
594) 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. 157, 595) 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. 157) "Hollow point" ammunition 
produces more injury than- round nose ammunition, all other 
factors being equal, but state and local Medical Examiner 
and County Coroner, Francisco, could not state the type of 
ammunition used in this particular episode would have made

14



any difference in bringing about Garner's death in light of 
the place where _the bullet struck and the point of entry.
(App. 157, 670, 671, 697, 698)

There is no evidence introduced tending to indicate 
any personal involvement whatsoever by Director Hubbard or 
Mayor Chandler in the episode in controversy, or in any 
failure on their part with respect to police hiring procedures 
regarding the employment of Hyman as a police officer.
(App. 157, 158) There was evidence to the effect that Hyman 
was, prior to this episode, a competent police officer, 
indeed, that he was the type of person who was a desirable 
police recruit by reason of his education, background, 
ability, and his race. (App. 158) There was no evidence 
indicating insufficient or inadequate police hiring methods 
or standards. (App. 158)

ARGUMENT

I.

THE DISTRICT COURT DID NOT ERR IN FINDING THAT OFFICER 
HYMON WAS JUSTIFIED IN USING HIS WEAPON TO APPREHEND 
EDWARD EUGENE GARNER.

T.C.A. §40-808 provides as follows:
"Resistance to Officer - If after notice 

of the intention to arrest the defendant, he

15



either flee or forcibly resist, the officer 
may use all the necessary means to effect the 
arrest."

This state statute and the regulations promulgated 
by the Memphis Police Department based upon the statute 
permit the use of lethal force by a police officer in the 
apprehension of persons fleeing from the commission of 
certain felonies. This statute does not authorize the use 
of a weapon in every instance and a determination of whether 
the fleeing felon could have been apprehended by less drastic 
means is a question for the trier of fact. Love v. Bass,
145 Tenn. 522, 238 S.W. 94 (1922); Scarborough v. State, 168 
Tenn. 106, 110, 76 S.W.2d 106, 107 (1934).

The constitutionality of this statute was upheld 
by a three judge district court in Cunningham v. Ellington, 
323 F.Supp. 1072 (W.D.Tenn. 1971). It was further considered 
and upheld in Beech v. Melancon, 465 F.2d 425 (6th Cir.
1972) and Wiley v. Memphis Police Department, 548 F.2d 1247 
(6th Cir. 1977) .

The regulations of the Memphis Police Department 
followed T.C.A. §40-808. Officer Hymon was entitled to 
assume the constitutionality of this statute. As this Court 
said in Beech v. Melancon, supra, at page 426:

"...State statutes like federal ones are 
entitled to the presumption of constitutionality 
until their invalidity is judically declared.

16



Davies Warehouse Company v. Bowles, 321 U.S.
144, 153, 64 S.Ct. 474, 479, 88 L.Ed. 635 (1944) 
and see also McDonald v. Board of Education,
394 U.S. 802, 808, 809, 89 S.Ct. 1404, 22 L.Ed. 
2d 739 (1969); Davis v. Department of Labor,
317 U.S. 249, 257, 63 S.Ct. 225, 87 L.Ed. 246 
(1942)."

The only court thus far to hold unconstitutional a 
statute similar to Tennessee's is the Eighth Circuit in
Mattis v. Schnarr, ______________ F.2d ______________. In
commenting on the decision, this Court in Wiley said that 
holding such a statute unconstitutional "extends to the 
felon unwarranted protection, at the expense of the unprotected 
public." Judge Weick went on to say:

"We agree with the dissent in the Eighth 
Circuit case (Mattis v. Schnarr), which was highly 
critical of the majority opinion for not following 
the decisions of other Circuits and for embarking 
on a new course which should have been left to the 
state legislatures where it belongs.

The legislative bodies have a clear state 
interest in enacting laws to protect their own 
citizens against felons, and a right, if not a duty, 
to do so. When the burglar escapes pursuit he is 
free to commit other fellonies. The dissent appro­
priately pointed out;

'In 1934 the ALI, in its First 
Restatement of Torts, modified the 
common law principle permitting the 
use of deadly force to effect the 
arrest of a felon. Restatement (First) 
of Torts §131 (1934). This modification 
was abandoned in 1948, however, and the 
common law rule was readopted. The 1966 
Appendix to the Second Restatement 
of Torts justifies this abandonment 
on the grounds that the modification 
contained in §131 had, from its 
inception, lacked any support other 
than dicta and argument by analogy.'

17



The dissent further states:
'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 
apprehending fleeing felons.'
The majority opinion of the Eighth Circuit in 

Mattis does not suggest how law enforcement officers 
are to make the on-the-spot constitutional analysis 
called for by its proposal and still react quickly 
enough to meet the exigencies of an emergency 
situation. How can a police officer ever know, 
reasonably or otherwise, whether the felon will 
use force against others if he is not immediately 
apprehended? If it clearly the prerogative of 
the state legislature to decide whether such 
restrictions on the use of force are consonant 
with public policy."

Another factor which the Courts consider in reviewing 
the actions of a police officer in cases such as this is the 
risk involved. When Officer Hymon arrived on the scene, he 
talked to the next door neighbor who pointed to the house in 
question and said: "They are breaking in." (emphasis added)
(App. 152, 746, 747, 809) He could readily assume that 
there were at least two people involved, if not more. The 
Court in its Memorandum Opinion found that Officer Hymon 
could not be certain whether there was an accomplice in the 
house or in the area and whether the accomplice might be 
armed. (App. 155) Officer Hymon did not know whether 
Garner had committed only a so-called "property crime" or 
whether persons in the home which he forceably entered might

18



have been endangered. (App. 160) As to the question of 
whether Garner was armed the Court found from the testimony 
that although it did not appear to Officer Hymon that he was 
armed, Officer Hymon could not be certain at the moment he 
was pursuing him. (App. 153)

In Terry v. Ohio, 392 U.S..1, 23 (1968), the 
Supreme Court said as follows:

"We are now concerned with more than 
the governmental interest in investigating 
crime; in addition, there is the more immediate 
interest of the police officer in taking steps 
to assure himself that the person with whom 
he is dealing is not armed with a weapon that 
could unexpectedly and fatally be used against 
him. Certainly it would be unreasonable to 
require that police officers take unnecessary 
risks in the performance of their duties. 
American criminals have a long tradition of 
armed violence, and every year in this country 
many law enforcement officers are killed in 
the line of duty, and thousands more are 
wounded."

In his Memorandum Opinion, Judge Wellford concluded 
that the real and principal issue in this case was whether 
defendant was justified in using his weapon to apprehend 
Garner as the only reasonable and practicable means of 
apprehending him or preventing his escape. (App. 159) He 
went on to say:

"... Garner was clearly a felon and Hymon 
could not be sure that he was only a juvenile.
After having been ordered to halt and knowing 
that he was confronted by a police officer,

19



Garner recklessly and heedlessly attempted to 
vault over the fence to escape, thereby 
assuming the risk of being fired upon. -Under 
the circumstances Garner was knowingly, directly 
and proximately contributing to his own injury 
and death, taking into account all factors 
present. There was very little' opportunity of 
identification of Garner for purposes of future 
arrest if he escaped.

VI. Hymon realized there were several 
obstacles between him and Garner at the moment 
Garner made what evolved into a fatal effort to 
scale the chain link fence. He was uncertain 
about the time required for him to reach the 
area from which Garner made his desperate leap, 
and he was reasonably concerned about the remote 
prospects of locating Garner once he disappeared 
into the brush and undergrowth out in the reaches 
of darkness and in an area unfamiliar and unknown 
to Hymon.

Hymon (and his partner), up until the 
moment of firing, had followed good police procedures 
in investigating an apparent burglary in progress 
by a person or persons unknown, who may or may 
not have been armed. In a split second, Hymon 
was called upon to make a fateful and difficult 
decision in the face of what reasonably appeared 
to be a successful effort to flee from arrest or 
apprehension from a felony scene. Hymon did not 
know whether Garner had committed only a so-called 
"property crime" or whether persons in the home which 
he had forceably entered might be or have been 
endangered. The Court concludes that Hymon was 
justified in thinking that once Garner scaled that 
fence, he would escape and that he, therefore, acted 
in compliance with lawful requirements in the use 
of potentially lethal force to prevent the 
escape of a fleeing felon. See Beech v. Melancon, 
supra. There was no reasonable alternative 
apparent it he were to prevent the escape or to 
effect the arrest.

VII. One particularly difficult aspect of 
this case was the age and size of young Garner.
Hymon was called upon in making a reasonable 
decision to weigh the factor, together with the 
potentiality of inflicting a fatal wound, in making

20



an arrest, in preventing an escape, under these 
circumstances. This factor, together with the 
eventual (but not then realized) fact that Garner 
was unarmed, made Hymon's decision to fire both 
difficult and agonizing. The Court has taken 
these considerations into account in concluding, 
nevertheless, that Hymon acted within his 
responsibility as a reasonable police officer. He 
certainly acted without any malice, predisposition, 
or racial animus towards Garner. He also acted 
within general guidelines afforded him as a 
Memphis Policeman, and the policy has been one 
essentially established by the Tennessee 
legislature, which has been determined to be a 
constitutionally acceptable one."

Although the factual situations differ slightly, 
the findings here are consistant with those in Beech v. 
Melancon, supra; Wiley v. Memphis Police Department, supra; 
and Smith v. Jones, 379 F.Supp. 201 (M.D.Tenn. 1973), and 
should not be upset unless clearly erroneous. Federal 
Rules of Civil Procedure, Rule 52(a), 28 U.S.C.

TENNESSEE LAW v, FEDERAL LAW

Appellant contends that the District Court relied 
solely upon Tennessee law standards without reference to 
relevant federal constitutional standards to determine 
whether the defendant officer's use of deadly force violated 
plaintiff's civil rights.

Speaking to this issue, this Court in Wiley 
v. Memphis Police Department said:

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"In Qualls v. Parrish, 534 F.2d 690 (6th Cir. 
1976), this Court, in an opinion written by Judge 
McCree, cited Love v. Bass, supra, with approval 
and held that the law of the state should be 
considered in determining the federal law to be 
fashioned to determine the liability of the 
officers. There the Court stated at 694:

'Our principal reason for agreeing 
with the district court that the 
Tennessee rule should be made the 
federal rule in this case is that a 
decision to the contrary would be 
unfair to an officer who relied, in 
good faith, upon the settled law of 
his state that relieved him from 
liability for the particular acts 
performed in his official capacity.
Most of the state courts that have 
considered this question follow the 
old common law rule that deadly force 
may be used by a police officer only 
-when he has reasonable grounds to 
believe that the persons he is 
attempting to arrest has committed 
a felony.'"

As in the Wiley case, there can be no question 
that Officer Hymon and his partner had reasonable gounds to 
believe that Garner had broken into a private residence. 
Hymon pursued him as he was fleeing from the scene of the 
crime. Again, as this Court said in Wiley:

"... Since the burglars were still being 
hotly pursued they are regarded as being 
engaged in the commission of the burglary 
at the time of the pursuit. United States 
v. Jarboe, 513 F.2d 33 (8th Cir. 1975); 
United States v. Van Roeder, 435 F.2d 1004 
(10th Cir. 1971) . "

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II.

THE DISTRICT COURT DID NOT ERR IN FINDING THAT THE HIRING,
TRAINING AND SUPERVISORY PRACTICES AND PROCEDURES OF THE CITY
OF MEMPHIS, iMEMPHIS POLICE DEPARTMENT, THE MAYOR AND THE DIRECTOR
OF POLICE OF MEMPHIS WERE ADEQUATE WITH: RESPECT TO DEFENDANT
HYMON AS A POLICE OFFICER.

In its Memorandum Opinion the Court found that 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 consistant 
with those used by other police departments and the F.B.I. 
Academy. (App. 155) Memphis Police instructors received 
training at the F.B.I. Academy. (App. 155, 405) Police were 
given instructions by a legal advisor on the Tennessee law 
with respect to the use of lethal force. (App. 424) 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 T.C.A. §40-808.
(App. 156, 423) The Court further found that there was no 
evidence of any failure on the part of Director Hubbard or 
Mayor Chandler with respect to hiring procedures regarding 
the employment of Hymon as a police officer. (App. 157, 158) 
There was evidence to the effect that Hymon was a competant 
officer and the type person who was a desirable police 
recruit by reason of his education, background, ability, and 
race. (App. 158)

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III.

THE DISTRICT COURT CORRECTLY FOUND THAT THE USE OF "HOLLOW 
POINT" AMMUNITION BY THE MEMPHIS POLICE DEPARTMENT DID NOT 
VIOLATE STANDARDS OF CIVIL CONDUCT SO AS TO SHOCK THE 
CONSCIENCE OF THE COURT.

It should be noted that "hollow point" ammunition 
is used by many other police departments throughout the 
United States as well as the F.B.I. (App. 157, 594) In its 
findings the Court stated as follows:

"IX. The choice by the Memphis Police 
Department to utilize the particular type of 
ammunition for service revolvers at the time in 
question was undertaken after consideration and 
study. There were plausible reasons for its 
conclusion that a more effective type might be 
utilized for the protection of the police 
officers and in the general welfare, even though 
there was involved a greater potential for 
serious injury, severe wounding, or even death 
to an intended target in connection with its use. 
Perhaps a different type ammunition with less 
"wound producting potential", as Dr. Francisco 
described it, would be preferable if this Court 
were called upon to make this decision; but this 
is not the issue to be decided. Plaintiff's 
counsel concedes in his memorandum and proposed 
conclusions that the Court must rather determine 
whether the Memphis Police Department's decision 
to utilize the "hollow point" bullet with a 
high velocity is such conduct as to "shock the 
conscience of the Court", citing Rochin v. 
California, 343 U.S. 165 (1952), the "stomach 
pumping" case. Interestingly, Justice Douglas 
a renowned civil libertarian, in a concurring 
opinion observed

'Yet the Court now says the rule 
that a majority of states have 
fashioned (to admit such evidence 
of narcotics pumped from the stomach)

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violates the "decencies of civilized 
conduct" to that I cannot agree.' 432 
U.S. 178. (See also the concurring 
opinion of Justice Black).
The other two cases cited by plaintiff in 

support of his contention in this respect appear 
inapposite as pertaining only to police mistreatment 
of a prisoner in custody. 5/ [5/ See plaintiff's
proposed conclusion No. 6, citing Rosenberg v. 
Martin, 478 F.2d 520 (2nd Cir. 1972) and Johnson 
v. Glick, 481 F.2d 1028 (2nd Cir. 1973).] The 
Memphis Police Department's conduct in selecting 
ammunition in question does not violate standards 
of civilized conduct so as to shock the conscience 
of the Court; it is similar to policies in use and 
established by many other jurisdictions and was 
not adopted merely for purposes of inflicting 
excessive punishment or denying due process. 6/
[6/ This conclusion is reached even if the Hague 
Declaration of 1899 may imply a contrary standard.] 
Rather, it was considered action with a policy 
toward minimizing hazards to the police and to 
citizens in situations or resisting or fleeing 
felons subject to lawful apprehension, or in 
situations were the life or safety of a police 
officer or an assaulted citizen might even be 
at stake.

X. In this case, moreover, plaintiff has 
not shown a proximate and direct relationship 
between the police choice as to type of ammunition 
used and the particular effect on Edward Eugene 
Garner at the time and place and in these particular 
circumstances. The Court concludes, moreover, 
that it would not have been of any consequence 
in this unfortunate death as to whether the 
type of bullet utilized in 1974 or the type 
utilized in 1972 before the change was employed.
For all that was demonstrated in the evidence, 
the place in the head and brain where impact 
occurred and the manner of Garner's wounding 
would have produced death in any event no matter 
which type of bullet was used. At least 
plaintiff failed in his burden to demonstrate 
otherwise." (App. 161, 162, 163)

25



f

CONCLUSION

It is respectfully submitted that the judgment of 
the District Court should be affirmed.

Respectfully submitted,
CLIFFORD D. PIERCE, JR. 
City Attorney 
City of Memphis

City of Memphis
Suite 3500, 100 North Main Building 

Memphis, Tennessee 38103 
(901) 5232363

CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing 
Brief has been served by United States mail, postage prepaid, 
to Avon N. Williams, Jr., Esquire, and Maurice E. Franklin, 
Esquire, Attorneys at Law, 1414 Parkway Towers, Nashville, 
Tennessee 37219.

This

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