Wiley v. Memphis Police Brief for Appellant
Public Court Documents
1975
93 pages
Cite this item
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Case Files, Garner Working Files. Wiley v. Memphis Police Brief for Appellant, 1975. 59ee1d80-34a8-f011-bbd3-000d3a53d084. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2ebe190f-4ac5-4565-aee3-b2a2d828e74a/wiley-v-memphis-police-brief-for-appellant. Accessed February 12, 2026.
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IN THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NO. 75-2321
MARTHA WILEY, Mother and Next of Kin
of Fred Lee Berry, a Deceased Minor,
Plaintiff-Appellant,
vs.
MEMPHIS POLICE DEPARTMENT, et. al.
Defendants-Appellees.
On Appeal From The United States D istrict Court
For The Western D istrict of Tennessee
Western Division
BRIEF FOR A PPE LLA N T
PAUL R. DIMOND
W ILLIAM E. CALDWELL
520 Woodward Bldg.
733 Fifteenth Street, N. W.
Washington, D. C. 20005
JACK GREENBERG
CHARLES STEPHEN RALSTON
DREW S. DAYS, III
Suite 2030
10 Columbus Circle
New York, New York 10019
G. PH ILIP ARNOLD
525 Commerce Title Bldg.
Memphis, Tennessee 38103
Attorneys for Appellant
TABLE OF CONTENTS
Page
Table of Authorities .......... ..............................................
Statement of the Case ........................................................ 3
Procedural H istory...................................................... 3
Statement of Facts...................................................... 6
District Court's D ecis ion ......................................... 22
Summary of Argum ent........................................................ 26
Argum ent............................................................................. 31
I. Death Imposed Upon A Fleeing Property-
Crime Suspect Deprives Him of Funda
mental Constitutional Rights; Such
Deprivation Can Avoid Invalidity Under
The Due Process and Equal Protection
Clauses Of The Fourteenth Amendment
Only By A Showing Of Overriding State
Interests; No State Interests Sufficient
To Justify The Death Of Plaintiff's
Decedent A re Present On This Record .
A.
B.
Death Deprives A Suspect of Fundamental
Constitutional R igh ts ...................................
The Due Process Clause Invalidates State
Policies Which Impinge Upon Fundamental
Constitutional Rights Unless The Policies
Are Supported By Overriding State
Interests..........................................................
31
31
36
C. The Equal Protection Clause Also Mandates
Strict Judicial Scrutiny Of The Memphis
Deadly-Force Po licy....................................... 40
D. The City's Deadly-Force Policy And The
Interests And Presumptions Advanced To
Support It, Insofar As It Sanctioned And
Resulted In The Death Of Plaintiff's Son,
Are Illogical, Irrational and Contrary To
Fact.................................................................. 41
-1 -
E. The Memphis Deadly-Force Policy, As
It Authorized And Resulted In The Death
Of Plaintiff's Son, Violates The Due
Process And Equal Protection Clauses
Of The Fourteenth Amendment .............
II. The Use Of Deadly Force To Apprehend
Plaintiff's Son Constituted An Unreasonable
Seizure Violative Of The Fourth Amendment
61
68
III. The City's Deadly-Force Policy Authorizes,
And Here Resulted In, The Infliction Of Cruel
And Unusual Punishment................................... 74
IV. Plaintiff Established A Prima Facie Case
Of Racial Discrimination Unlawful Under 42
U. S. C. §1981 And The Equal Protection
Clause ......................................................................... 80
V. The District Court Has Jurisdiction Over
A ll Defendants Under 28 U, S. C. §1331 (a ) ............... 95
Conclusion .......................................................................... 100
Appendix A .......................................................................... la
Appendix B ................................................................................ lb
•11-
TABLE OF AUTHORITIES
Cases
Aldridge v, Mullins, 377 F. Supp. 850 (M. D. Tenn,
1972) , aff'd, 474 F. 2d 1189 (6th Cir. 1973)
Argersinger v, Hamlin, 407 U. S. 25 (1972)
Boddie v. Connecticut, 401 U. S. 371 (1971)
Beech v. Melancon, 465 F. 2d 425 (6th Cir, 1972),
cert, denied, 409 U. S. 1114 (1973)
Bell V. Burson, 402 U. S. 535 (1971)
Bell V. Hood, 327 U. S. 678 (1946)
Bivens v. Six Unknown Named Agents, 403 U. S. 388
(1971)
Blue V. Craig, 505 F. 2d 830 (4th Cir. 1974)
Breed v. Jones, 421 U. S. 519 (1975)
Bridgeport Guardians, Inc. v. Members of Bridgeport
C ivil Service Commission,482 F. 2d 1333
(2d Cir. 1973)
Butler V. United States, 365 F. Supp 1035 (D. Hawaii
1973)
Calvin v. Conlisk, 520 F. 2d 1 (7th Cir. 1975)
City of Kenosha v. Bruno, 412 U. S. 507 (1973)
Cleveland Bd. of Educ. v. LaFleur, 414 U. S. 632
(1974)
Commonwealth v. Chermansky, 242 A. 2d 237 (Pa.
1968)
Commonwealth v. O'Neal, 327 N. E. 2d 662 (Mass.
1975)
Pa ge
26n
34n
35n
23, 26n
38n, 64
99
55, 97n-98n
96n
35n
8 In
98n
99
23, 95n, 99
32n, 37, 38,
40, 64, 65n
54
32n, 34
-111-
Cox V. Turley, 506 F. 2d 1347 (6th Cir. 1974) 75-76
Cunningham V. Ellington, 323 F, Supp. 1072 (W. D. Tenn,
1971)(three-judge court)
Cuyohoga Metropolitan Housing Authority v. Harmody,
474 F. 2d 1102 (6th Cir. 1973)
Cupp V. Murphy, 412 U. S. 291 (1973)
Dahl V, City of Palo Alto, 372 F. Supp. 647 (N. D. Cal.
1974)
Davis V. Mississippi, 394 U. S. 721 (1969)
District of Columbia v. Carter, 409 U. S. 418 (1973)
Downey v. Perini, 518 F. 2d 1288 (6th Cir. 1975), vac'd
44 U. S. L .W . 3330 (U.S. Dec. 1, 1975)
Downs V. United States, 522 F. 2d 990 (6th Cir.
1975)
Duncan v. Louisiana, 391 U. S. 145 (1968)
Dunn V, Blumstein, 405 U. S. 330 (1972)
Eisenstadt v, Baird, 405 U. S. 438 (1972)
Ex Parte Pickens, 101 E, Supp. 285 (D. Alas.
Terr. 1951)
Earetta v. California, 422 U. S. 806 (1975)
Earley V. Farley, 481 F. 2d 1009 (3d Cir. 1973)
Foster v. City of Detroit, 405 F. 2d 138 (6th C ir.1968)
Foster v. HeiTey, 330 F. 2d 87 (6th Cir. 1964)
Franklin v. Troxel Manufacturing Co. , 501 F. 2d 307
(6th Cir. 1975)
Furman v. Georgia, 408 U. S. 238 (1972)
12n, 16-17,
74 & 76
99
69
98
69
96n
79
53n
34n
32n, 40n, 65
41n, 66, 67
75n
33, 34n, 35n
74 n
99
99
88, 94
45, 46, 75, 77,
78, 79, 89
- I V -
Garner v. Memphis Police Dept. , C. A. No. 75-145
(W. D. Tenn. Aug. 18, 1975) 98n,
Gideon v. Wainwright, 372 U. S. 335 (1963) 34n
Giordenello v. United States, 357 U. S. 480
(1958) 69
Glasson v. City of Louisville, 518 F. 2d 899 (6th
Cir. 1975) 36
Gomillion v. Lightfoot, 364 U. S. 339 (1960) 90
Gregory v. Litton Systems, Inc. 316 F. Supp. 401
(C. D. Calil 1970), aff'd 472 F. 2d 631 (9th Cir.
1972) 86n
Gully V. First National Bank, 299 U. S. 109 (1936) 97
Hale V. Henkel, 201 U. S. 43 (1906)
Hanna v. City of Euclid, 514 F. 2d 393 (6th Cir. 1975) 99
Harris v. United States, 382 U. S. 162 (1965) 35n
Henderson v. United States, 390 F. 2d 805 (9th
Cir. 1967) 71-72
Henry v. United States, 361 U. S. 98 (1959) 69
Hilliard v. W illiams, 516 F. 2d 1344 (6th Cir. 1975) 90 n
Howell V. Cataldi, 464 F. 2d 272 (3d Cir. 1972) 75n, 98n
Hunter v. Erickson, 383 U. S. 385 (1969) 91
Huguez V. United States, 406 F. 2d 366 (9th
Cir. 1968) 72
Incarcerated Men of Allen County v. Fair, 507 F. 2d
281 (6th Cir. 1974) 98, 99
In re Birdsong, 39 Fed. 599 (S. D. Ga. 1889) 75n
In re Gault, 387 U. S. 1 (1967) 35n
-V -
In re O liver, 333 U. S. 257 (1948) 34, 35n
In re Winship, 397 U. S. 358 (1970) 35n
Johnson v. Mississippi, 403 U. S. 212 (1971) 35n
Johnson v. State, 114 S. W. 2d 819 (Tenn. 1938) 13n
Johnson V. Zerbst, 304 U.S. 458 (1938) 33n, 35n
Jones V. Alfred H. Mayer Co. , 392 U. S. 409 (1968) 96n
Kasper V. Brittain, 245 F. 2d. 92 (6th C ir .),
cert, denied, 355 U. S. 834 (1957) 79
Kennedy v. Mendoza-Martinez, 372 U. S. 144
(1963) 76, 77
Ker V. California, 374 U. S. 23 (1963) 70, 71
Keyes v. School Dist. No. 1, 413 U.S. 189 (1973) 88
Laugesen v. Anaconda Co, , 510 F. 2d 307 (6th Cir. 1975) 88, 94
Long V. Ford Motor Co. , 496 F, 2d 500 (6th Cir. 1974) 88, 94
Love V. Bass, 238 S. W. 94 (Tenn. 1922) 13n
Lynch v. Household Finance Corp. , 405 U. S. 538
(1972) 97, 98
Lynch v. Johnson, 420 F. 2d 818 (6th Cir. 1970) 24
Manduchi V. Tracy, 350 F. 2d 658 (3rd C ir .), cert.
denied, 382 U. S. 943 (1965) 72n
Mattis V. Schnarr, 502 F. 2d 588 (8th Cir. 1974) 25n
May V. Andereon, 345 U. S. 528 (1953) 33
Maybanks v. Ingraham, 378 F. Supp. 913 (E. D. Pa.
1974) 96n, 99
McDonnell Douglas Corp. v. Green, 411 U. S. 729 (1973) 88
-VI-
Memorial Hospital v. Maricopa County, 415 U. S. 250
(1974)
M cKeiver v. Pennsylvania, 403 U. S. 528 (1971)
Monroe v. Pape, 365 U. S. 167 (1967)
Moor V, County of Alameda, 411 U. S. 693 (1973)
Morgan v. Rhodes, 456 F. 2d 608 (6th Cir. 1972),
rev'd sub nom. Gilligan v. Morgan, 413 U. S. 1
(1973)
Moragne v. States Marine Lines, 398 U. S. 375 (1970)
Mullaney v. Wilbur, 421 U. S. 684 (1975)
Nelson v. Knox, 256 F. 2d 312 (6th Cir. 1958)
Oklahoma Press Pub. Co. v, Wolling, 327 U. S. 186
(1946)
Palko V. Connecticut, 302 U. S. 319 (1975)
Papachristou v. City of Jacksonville, 405 U. S. 156
(1972)
People V. Caballos, 526 F. 2d 241 (1974)
Pierson v. Ray, 386 U. S. 547 (1967)
Pitts V. Chandler, C. A. No. C-74-306 (W. D. Tenn.
Sept. 16, 1974)
Police Dept, of City of Chicago v. Mosley, 408 U S
92 (1972)
Pointer v. Texas, 380 U. S. 400 (1965)
Powell V. Alabama, 387 U. S. 45 (1932)
Powell V. McCormack, 395 U. S. 486 (1969)
Reed v. Reed, 404 U. S. 71 (1971)
32n, 40n, 66
35n
26n, 95n
95n
52n
56
34n
24
7 In
35
42n, 59n
45-46n
23 n
97n, 98n,
99n
40, 65, 66
35n
35n, 43n
96, 98
41n, 67
- V l l -
Rhem V. McGrath, 326 F. Supp. 681 (S. D. N. Y.
1971) 75n
Roe V. Wade, 410 U. S. 113 (1973)
Reneau v. State, 70 Tenn. 720 (1879) 12n, 54
St. Paul Mercury Indemnity Co. v. Red Cab Co. ,
303 U. S. 283 (1939)
San Antonio Independent School Dist. v. Rodriguez,
411 U. S. 1 (1973)
Sauls V. Hutto, 304 F. Supp, 234 (E. D. La. 1969)
Scarbrough v. State, 76 S. W. 2d 381 (Tenn. 1929)
Schmerber v. California, 384 U. S. 757 (1966)
Screws v. United States, 325 U. S. 91 (1945)
Shapiro v. Thompson, 394 U. S. 618 (1969)
Sibron v. New York, 392 U, S. 40 (1968)
Singer v, Mahoning County Bd. of Mental Retardation,
519 F. 2d 748 (6th Cir. 1975)
Skinner v. Oklahoma, 316 U. S. 535 (1942)
Smith V. Goguen, 415 U, S. 566 (1974)
Smith V. Jones, 379 F. Supp 201 (M. D. Tenn. 1973), aff'd,
497 F. 2d 924 (6th Cir. 1974)
Stanley v. Illinois, 405 U. S. 645 (1972)
State V. Bryant, 65 N. C. 327 (1871)
State V. Dunn, 282 S. W. 2d 203 (Tenn. App. 1943) 13n
Steffel V, Thompson, 415 U. S. 452 (1974) 98
32n, 34, 36-38,
61, 62-63
97n
32
54
13n
69, 70
24, 33, 57
32n, 35n, 40n, 65
69
98
32n, 38n, 39,
40n, 64, 65
42-43n
26n
32n, 37, 38,
39, 64
54
- V l l l -
storey v. State, 71 Ala. 329 (1882) 45n
Stott V. City of Covington, C. A. No. C-73-382 97n, 98n,
(W. D. Tenn. Sept. 27,1974) 99n
Taglavore v. United States, 291 F. 2d 262 (9th Cir. 1961) 72n
Taylor v. Hayes, 418 U. S. 488 (1974) 35n
Terry V. Ohio, 392 U. S. 1 (1968) 69
Tillman v. Wheaton-Haven Recreation Ass'n, Inc. ,
410U. S. 431 (1973) 88n
Turnery. Fouche, 396 U. S. 346 (1970) 88,91
United States v. Bausch and Lomb Optical Co. , 321 U. S.
707 (1944) 71n
United States v. Brignoni Ponce, 422 U. S. 873 (1975) 69
United States v. Calandra, 414 U. S. 338 (1974) 71
United States v. City of Memphis, C. A. No. C-74-286
(W. D. Tenn. 1974) 8In
United States v. Clark, 31 Fed. 710 (C. C. E. D. Mich.
1887) 54, 75
United States v. Crosson, 462 F2d 96 (9th Cir. 1972) 74n
United States v. Dionisio, 410 U. S. 1 (1973) 71n
United States ex rel. Ametrane v. Gable, 276 F. Supp.
555 (E. D. Pa. 1967), aff'd, 401 F. 2d 765 (3d Cir.
1968) 72n
United States ex rel. von Wolfendorf v. Johnston, 317 F.
Supp. 66 (S. D. N. Y. 1970) 75n
United States v. Guadalupe-Garza, 421 F. 2d 876
(9th Cir. 1970) 71
United States v. Harrison, 434 F. 2d 1328 (D. C. Cir.
1970) 72n
- I X -
United States v. Johnson, 425 F. 2d 630 (9th Cir,
1970), cert. dism. , 404 U. S. 802 (1971)
United States v. Koelzer, 457 F. 2d 892 (3d Cir. 1972)
United States v. Morton Salt Co. , 338 U. S. 632
(1950)
United States v. Price, 383 U. S. 787 (1966)
Uni ted States Dept, of Agriculture v. Moreno, 413
U. S. 528 (1973)
United States Dept, of Agriculture v. Murry, 413
U. S. 508 (1973)
Vlandis v. Kline, 412 U. S. 441 (1973)
Wallenberg v. New York City Dept, of Corrections,
376 F. Supp. 41 (S. D. N. Y. 1974)
Washington v. Chester County Police Dept., 294 F. Supp.
1157, 300 F.Supp. 1279 (E. D. Pa. 1969)
Washington v. Texas, 388 U. S. 14 (1967)
Watson V. City of Memphis, 373 U. S. 526 (1963)
Weber v. Aetna Casualty & Surety Co. , 406 U. S. 164
(1972)
Weinberger v. Salfi, 422 U. S. 749 (1975)
Weinberger v. Wisenfeld, 420 U. S. 630 (1975)
Wiggins V. Greer, C. A. No. 744315 (W. D. Tenn. Oct. 24,
1975)
Wolff V. McDonnell, 418 U. S. 539 (1974)
Yick Wo V. Hopkins, 118 U. S. 356 (1886)
Zwickler v. Koota, 389 U. S. 241 (1969)
72
98n
71n
88n
41n, 66, 67
38n, 64
38n, 64, 65n
99
88n
34-35n
82n
41n, 66, 67
32n, 38, 64
97n
99n
25n
33,43n, 88n, 89,
91
98
-X-
Statutes and Rules
28 U. S. C. §1331
28 U. S. C. §1343
42 U. S. C. §1981
42 U. S. C. §1983
HAWAII REV. STAT. Tit. 37 §3.07(3) (1975
Supp.)
KY. REV. STAT. ANN. §503. 90(2)(1975)
NEB. REV. STAT. §28-839(3) (Supp. 1972)
TENN. CODE ANN.
§1-313
§37-20
§37-437
§38-102
§39-904
§39-4204
§40-808
TEX. PEN. CODE, art. 2, §9. 51(c)(1974)
MEMPHIS CITY CODE
§30-15
§ 1-8
FED. R. CIV. P. 52(a)
FED. R. EVID. 406
Books and Treatises
23,30,95,97,98,99,
100
30,95n, 96
24,29,30,88,95n, 96n
95n,96
53 n
53n
53n
lOn
35n, 47n
lOn
45n
46
59n
12,18n, 26n,74-75
53n
49n
49n
23
2 In
ABA PROJECT ON STANDARDS FOR CRIMINAL
JUSTICE, STANDARDS RELATING TO THE
URBAN POLICE FUNCTION (Tent. Draft,
March 1972). 51n
ALI, MODEL PENAL CODE §3.07 (P. O. D. 1962) 16n, 51n
-X I -
ALI PROCEEDINGS
3 ELLIOT'S DEBATES (2d ed. 1876)
FBI, CRIME IN THE UNITED STATES (1971)
KENNY'S OUTLINES OF THE CRIMINAL LAW
(19th ed. 1966)
IB MOORE'S FEDERAL PRACTICE (2d ed.
1974)
C. MCCORMICK, LAW OF EVIDENCE (1954)
NATIONAL COMM'N ON REFORM OF FED.
CRIM. LAWS, STUDY DRAFT OF A NEW
FED. CRIM. CODE §607(2)(d)(1970)
NATIONAL COMM'N ON REFORM OF FED.
CRIM. LAWS, WORKING PAPERS (1970)
PRESIDENT'S COMM’N ON LAW ENFORCE
MENT AND ADMINISTRATION OF
JUSTICE, THE CHALLENGE OF CRIME
IN A FREE SOCIETY (1967)
48n, 51n
75
16n
44n
74 n
2 1n
51n
5ln
42n, 50n, 81n, 84n
PRESIDENT'S COMM'N ON LAW ENFORCE
MENT AND ADMINISTRATION OF JUSTICE,
TASK FORCE REPORT: THE POLICE (1967) 50n
R. PERKINS, CRIMINAL LAW (2d ed. 1969)
F. POLLOCK & F. MAITLAND, THE HISTORY
OF THE ENGLISH LAW (2d ed. 1918)
W. PROSSER, LAW OF TORTS (4th ed.
1971)
IB.SCHWARTZ, STATUTORY HISTORY OF THE
UNITED STATES: CIVIL RIGHTS (1970)
T. TAYLOR, TWO STUDIES IN CONSTITU
TIONAL INTERPRETATION (1969)
WEBSTER'S THIRD INTERNATIONAL
DICTIONARY (UNABRIDGED) (1961)
43, 49
44n
42n, 45n, 52n
88n
44
75n
- X l l -
Law Review Articles
Amsterdam, Perspectives On The
Fourth Amendment, 58 MINN. L. REV.
349 (1974)
Bohlen & Shulman, A rrest With And
Without A Warrant, 75 U. PA. L. REV.
485 (1927)
Davidson, W elfare Cases And The
"New Majority” ; Constitutional
Theory And Practice, 10 HARV. CIV.
RIGHTS-CIV. LIB. L. REV. 513 (1975)
73n
44, 52n
4 In
Ely, The Wages Of Crying Wolf: A
Comment On Roe v. Wade, 82
YALE L. J. 920 (1973)
Greenstone, Liability Of Police O fficers
For Misuse Of Their Weapons,
16 CLEVE. -MAR. L. REV. 397 (1967)
32n, 37n
52n
Grenel, When Can A Policeman Use
His Gun?, 40 J. GRIM. L. C. &
P. S. 756 (1950) 52n
Gunther, Forword: In Search Of
Evolving Doctrine On A Changing
Court: A Model For A Newer Equal
Protection, 86 HARV. L. REV. 1 (1972)
Holmes, The Path Of The Law,
10 HARV. L. REV. 457 (1909)
40n
50
McDonald, Use Of Force By Police
To Effect Lawful A rrest, 9 CRIM.
L. Q. 435 (1967) 52n, 55
Moreland, The Use Of Force In
Effecting Or Resisting Arrest,
33 NEB. L. REV. 408 (1954) 52n
Pearson, The Right To K ill In Making
Arrests, 28 MICH. L. REV. 957
(1930)
Perkins, The Law Of Arrest, 25 IOWA
L. REV. 101 (1940)
52n
52n
-xm -
Tribe, Structural Due Process, 10
HARV. CIV. RIGHTS-CIV. LIB. L.
REV. 169 (1975) 39n
Tsimbinos, The Justified Use Of
Deadly Force, 4 CRIM. L. BULL.
3 (1968)
Uelman, Varieties Of Police Policy:
A Study Of Police Policy Regardinc
The Use Of Deadly Force In Los
Angeles County, 6 LOYOLA (L. A. )
L. REV. 1 (1973)
Wilgus, A rrest Without A Warrant,
22 MICH. L. REV. 541 (1924)
52n
54n
43n
Law Review Notes
Note, Justification: The Impact Of
The Model Penal Code On Statutory
Reform, 75 COLUM, L. REV. 914 (1975)
Note, The Conclusive Presumption
Doctrine: Equal Process Or Due
Protection?, 72 MICH. L. REV. 800
(1974)
Note, The Irrebuttable Presumption
Doctrine In The Supreme Court,
87 HARV. L. REV. 1534 (1974)
Note, The Use Of Deadly Force In
Arizona By Police O fficers, 1973
L. & SOC. ORDER 481
Comment, Fundamental Personal Rights:
Another Approach To Equal Protection
40 U. CHI. L. REV. 807 (1973)
Note, Justifiable Use Of Deadly Force
By The Police: A Statutory Survey,
12 WM. & MARY L. REV. 67 (1970)
Note, The Appropriateness Of Deadly
Force, 15 HOW. L. J. 306 (1969)
52n
38n
38n
44n, 52n, 54n
32n, 40n, 41n
52n
52n
-XIV-
Note, Justification For The Use Of
Force In Criminal Law, 13 STAN.
L. REV. 566 (1961)
Note, The Use Of Deadly Force In The
Protection Of Property Under The
Model Penal Code, 59 COLUM.
L. REV. 1212 (1959)
44n, 45n, 52n
52n
Note, The Civil L iability Of Peace
O fficers For Wounding Or Killin
28 U. CIN. L. REV. 488 (1959)
(T
Note, Legalized Murder Of A Feeling
Felon, 15 VA. L. REV. 582 (1929)
52n
45n, 52n
-X V -
IN THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
NO. 75-2321
MARTHA W ILEY, Mother and Next of Kin of
Fred Lee Berry, a Deceased Minor,
Plaintiff-Appellant,
vs.
MEMPHIS POLICE DEPARTM ENT, et a l . ,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Tennessee
Western Division
BRIEF FOR A PPE LLA N T
The deadly-force policy of the City of Memphis and the
Memphis Police Department authorizes the City's police officers
to employ deadly force, inter a lia , whenever they deem such force
necessary to effect the arrest of a property-crime suspect even when
the suspect poses no threat of death or bodily injury to police
officers or any other persons. Pursuant to this policy, plaintiff's
black juvenile son, Freddie Lee Berry, near the end of his sixteenth
year of life, was shot and killed by police officers on the night of
January 8, 1972 as he and a black juvenile companion fled the scene
of an offense against property which, had they been adults, would have
constituted third-degree burglary of an unoccupied business establish
ment. Deadly force was resorted to solely because the officers believed
that they could not otherwise apprehend the suspects at the scene of the
offense. Neither by their conduct in committing the offense nor by their
flight did the suspects pose a threat to the life or bodily security of any
person, and the officers did not believe otherwise. The district court's
rulings on plaintiff's request for a declaratory judgment that the death
of her son contravened several federal constitutional and statutory pro
visions, and one jurisdictional ruling, result in the following:
ISSUES PRESENTED FOR REVIEW
1. Whether the City's deadly-force policy and the death of plain
tiff's son caused by the policy are unconstitutional:
(a) under the Due Process and Equal Protection Clauses
of the Fourteenth Amendment because deadly force in the circum
stances of this case impinges upon the fundamental constitutional
rights to life and to a tria l, is not supported by any overriding,
or even rational, governmental interest, and is not narrowly
tailored to serve any substantial governmental interest;
(b) under the Fourth Amendment, because such deadly
- 2 -
force constitutes an unreasonable seizure;
(c) under the Eighth Amendment, because such deadly
force constitutes cruel and unusual punishment?
2. Whether uncontroverted evidence that the Memphis deadly-
force policy is implemented disproportionately against black property-
crim e suspects, coupled with undented evidence of pervasive racial d is
crimination in the employment and law enforcement practices of the
Memphis Police Department, creates in plaintiff's favor a prima facie
case of racial discrimination under the Equal Protection Clause and 42
U.S. C. §1981 which shifts the burden of proof to defendants?
3. Whether the district court erred in refusing to exercise
jurisdiction over any defendant, including the City of Memphis, under
28 U.S. C. §1331 (a) with respect to plaintiff's claims arising under the
Constitution?
STATEMENT OF THE CASE
P rocedural History
Plaintiff Martha W iley, mother and next of kin of Freddie Lee
Berry, a 16-year-old black youth shot and killed by Memphis police
officers on January 8, 1972, initiated this action by complaint filed
January 8, 1973. [A. 5-17]. The named defendants were as follows:
V "A . " references are to the nunibers appearing at the bottom right-hand
corners of the pages in the two-volume appendix filed with the Court. Unless
otherwise clear from the context,the record item referred to w ill be identified
parenthetically, with the district court's memorandum decision identified by
'Mem. Op. , exhibits, including a number of depositions and interrogatories
admitted into evidence and marked as exhibits, identified by "E x ."; and the
transcript of tria l testimony identified by "T r . "
-3-
thG Mornphis PolicG DGp3.rtmGnt |̂ hGrGin3.ftGr, 3,n GXGCutivG
dGpartmGnt of the City of Memphis, Tennessee; the City of Memphis
[hereinafter sometimes, "C ity "], a municipal corporation organized
and existing by virtue of the laws of the State of Tennessee; Chief of
Po lice B ill P rice (since retired); form er Chief of Police Henry Lux;
Wyeth Chandler, Mayor of Memphis; Henry Loeb, a form er Mayor of
Memphis; M. J. Calliham, R.D . Roleson, B. G. Cox, andJ.K . Richards,
poUce officers of the City of Memphis and the Memphis PoUce Department;
W. W. Wannamaker and Jewell G. Ray, supervisory officials of the Memphis
2/
Police Department; and "John Doe and others sim ilarly situated." P lain
tiff invoked the district court's jurisdiction under 28 U .S .C . §§1331(a),
1343(3), and 1343(4) for alleged causes of action arising under 42 U .S .C .
§§1981, 1983, 1985, 1986 and 1988, and the Fourth, Fifth, Sixth, Eighth,
Thirteenlh and Fourteenth Amendments to the United States Constitution.
Plaintiff asserted the value in controversy to be in excess of $10,000,
exclusive of interest and costs. She prayed for declaratory re lie f (28 U .S.C
§§2201, 2202) and money damages (punitive and compensatory) for the per
sonal effects and alleged wrongful death of her son, as well as for incidental
losses. Plaintiff also invoked the district court's pendent jurisdiction seek
ing sim ilar re lie f for alleged causes of action under Tennessee law.
2/ By consent orders entered April 25, 1974 [A. 47 ] and January 27,
1975 [A. 53 ] defendants Roleson, Calliham, Wannamaker, Ray and Loeb
were voluntarily dismissed by plaintiff. And at the commencement of tria l
plaintiff agreed to dismissal of the "John Doe" defendants FA 58 (Tr
10 )]. ■ ̂ ■
-4-
A ll defendants filed a joint motion to dismiss on January 30, 1973.
[A . 18-21], By Order entered April 11, 1973 by Chief Judge Bailey
Brown (to whom this case was initially assigned), the motion to dismiss
was granted as to defendants MPD and the City, As to all other defendants
the motion to dismiss was denied. [A. 22], The individual defendants filed
their answer on July 11, 1973 generally denying the essential allegations
of the complaint. [A. 23-27].
Following a series of discovery disputes and a continuance of the
first tria l date occasioned by dilatoriness on the part of defendants (see
Order of January 3, 1974 [A. 28-29]), the following motions (in addition to
other discovery motions) were filed: (a) motion by defendants Loeb, Lux,
Chandler and Price for summary judgment [A. 30-31]; (b) motion by defendants
Calliham, Roleson and Cox for summary judgment [A . 32 ]; (c) motion by
plaintiff to strike defendants' demand for tria l by jury [A. 33-37]; (d) motion
by plaintiff for partial summary judgment [A . 44-46]; (e) motion by plaintiff
to reconsider Judge Brown's order of April 11, 1973 and to reinstate the a t y
and MPD as parties defendant [A. 41-43]. By order entered October 7, 1974
the district court, per Honorable Harry W. Wellford (to whom the case had
been transferred), vacated in part its order of April 11, 1973 and reinstated
the City and MPD as defendants for adjudication of plaintiff's claims under
42 U.S. C. §§1981 and 1988. The court declined at that time "to accept
phiintiff's invitation to assume independent jurisdiction under 28 U.S. C.
§1331 in this cause since plaintiff's c iv il rights claim against these defendants
-5-
[C ity and MPD] is recognized under the 1866 [C iv il Rights] Act. ” The court
also denied the motions of the remaining parties defendants for summary
judgment, denied plaintiff's motion for partial summary judgment, and denied
plaintiff's motion to strike the demand for jury tria l. [A. 48-50].
The City and MPD filed their answer on November 14, 1974
generally denying the essential allegations of the complaint. [A. 51-52].
(On the day of tria l defendants filed an amended answer asserting TENN.
CODE ANN. §40-808 as an affirmative defense [A . 55 ] . ) By consent
order entered January 29, 1975 defendants waived their demand for tria l
by jury and the parties agreed to try the case to the court sitting without a
jury. [A. 54 ]. T r ia l was held on April 2, 3, 7 and 8, 1975 on all of
plaintiff's allegations and related issues. Following post-trial submissions
by the parties, the district court filed its memorandum decision on June
30, 1975 [A. 236 ], amended pursuimt to plaintiff's motion [A. 259 ] by order
3/
entered July 25, 1975. [A. 263 ]. Judgment for all defendants was entered
July 15, 1975 [A. 262 ], and plaintiff timely noticed her appeal on August
14, 1975. [A. 267 ]
Statement of Facts
Plaintiff's son, Freddie Lee Berry, was nearing his seventeenth
birthday at the time of his death. [A. 60-61(Tr. 27-28)]. He was five feet.
^7 The court's order of July 25 substitutes new pages for pages 18, 19
and 21 of the initial memorandum opinion. The function of these substi
tute pages is to eliminate erroneous references in the initial findings
and conclusions to the propriety of maintaining a class action and obtain
ing injunctive re lie f (plaintiff had never sought either), and to make it clear
that the court's suggestion that defendants reconsider their policy prohibit
ing warning shots was not requested by plaintiff.
four inches tall and weighed 118 pounds [A. 270 (Ex. 3)]. His father
was deceased. He had twice been adjudicated delinquent
by the Memphis & Shelby County Juvenile Court, once in 1969 for third-
degree burglary [A . 232(Tr. 579)] and once for disorderly conduct con
sisting of the use of "profane and vulgar language to an assistant school
1 /
principal, " [A. 233-34(Tr. 580-81)].
On the night of January 8, 1972 Freddie left home at approxi
mately 7:00 p.m. [A. 63 (Tr,33 )]. Shortly after 8:00 p .m ., the police
radio dispatcher for the MPD's South Precinct put out a call: "Bellevue
and Ferguson at sportings goods, prowlers ins ide." [A. 287(Ex. 6D)].
O fficers Calliham and Roleson in a police patrol car designated as
Charlie-16 responded to the call and were the first to arrive on the scene.
I A. 288 (Ex. 6D)]. Approximately 30 seconds later defendants Cox and
Richards also arrived on the scene in a patrol car designated as Charlie-
14; they were placed on the scene at 8:03 p.m. by the radio dispatcher.
[A . 288(Ex. 6D)].
The scene was the South Bellevue Marine Company, a sporting
goods store specializing in boats, boat motors and other marine equipment.
The store is located on a corner with a fenced-in storage yard enclosing
two sides of the building. In the back (east) of the building the storage yard
ends at a drainage ditch, from which the yard is separated by a fence;
4/ The district court also referred, improperly we think, to other of
Freddie Lee Berry 's contacts with Juvenile Court, which involved charges
only and none of which resulted in adjudications of wrong-doing. [A. 238-39
(Mem. Op. at 3-4)],
-7-
a parking lot and then other businesses are to the south of the building;
Bellevue Street is in front (west) of the building; and the storage yard
on the north end of the building ends at a fence which separates it from
Ferguson Street (an east-west street that intersects Bellevue). [A. 563
(Ex. 50); also see Exs. 35 & 36]. Defendants Cox and Richards were
fam iliar with this scene from prior experience. [A. 67-71, 73-77, 227-29
(Tr. 58-62, 64-68, 548-50)].
When officers Calliham and Roleson arrived on the scene they
stopped their patrol car directly in front of the Marine Company, which
has a large glass front. O fficer Calliham went to the front door and officer
Roleson began running south in front of the building for the purpose of circling
around behind the building. The inside of the Marine Company was well
lighted and Calliham could see three male blacks inside trying to break
into a drink machine. [A. 503-04(Ex. 47D at 26-27)]. At this point defendants
Richards and Cox arrived and were informed by Calliham that "There 's
three inside. " [A. 470(Ex. 47A at 4)]. In Calliham's words, he told
Richards and Cox to go to the back of the building. "Then I went to the
front and hollered at the boys to come out. They looked up and saw me
and took off every direction. " [A. 504(E x . 47D at 27)]. In the meantime,
Cox and Richards drove on north and turned east on Ferguson Street. They
stopped their car on Ferguson Street near the point where it crosses the
drainage ditch. As Cox and Richards were getting out of their car, they
saw two male blacks running out of the rear of the south portion of the
- 8 -
Igbuilding near the fence which separates the storage yard from an adjoinint
parking lot. It is approximately 54 feet from the back of the building to
the fence along the drainage ditch. [A. 563 (Ex. 50)]. Although it was raining,
the storage lot was lighted and the officers could see the youths clearly.
[A . 80-82 (Tr. 80-82)]. The two youths proceeded running and either
climbed over or went under the north-south fence into the drainage ditch.
5/
During these moments, Richards and/or Cox yelled "halt” several times
as they ran from their car to the fence which separates the ditch from
Ferguson Street. [A . 79 (T r. 70)]. When the two fleeing youths did not
obey the commands to stop, both Richards and Cox began firing their
weapons at the suspects. In Richards' words, "when we saw it
[yelling commands to halt] wasn't going to work, I looked at him [Cox]
and he looked at me and we immediately started [firing]. " [A. 86 (Tr.
107)].
Cox fired twice with his . 38-caliber Smith & Wesson Police
Special pistol loaded with hollow-point bullets [A. 204-05(Tr. 455-56)],
and Richards fired three times with a 12-gauge shotgun loaded with 00
buckshot (each shotgun shell contains 9 "shot, " each the size of a . 32-
caliber bullet). [A. 205(Tr.456)]. Freddie Lee Berry fe ll critically
wounded 208 feet down the ditch from where Cox and Richards had fired.
5/ The testimony of more disinterested w itnesses--O fficer Roleson
[A. 500 (Ex. 47C at 30)] and a neighboring property owner [A. 561, 562
(Ex. 49 at 4, 6)]--indicated that only three commands to halt were given,
although both Cox and Richards testified that more such commands
were given.
-9-
and about 16-20 feet from where the youths had entered the ditch.
[A. 563(Ex, 50)]. Freddie was taken to the hospital where he died at
10:00 p.m . "due to a gunshot wound to the brain. ” [A. 268 (Ex. 3)]. He had
also received a gunshot "gra ze” on the chin. It was determined that the
1 /
fatal gunshot was from a shotgun. [A. 286(Ex.4C at 5)].
O fficers Cox and Richards acted pursuant to the MPD's deadly
force policy which, at the time in question, broadly authorized the use of
deadly force, as a last resort, to apprehend "felony" suspect.
[See A. 244-46(Mem. Op. 9-11)]. Both officers testified that they
shot with the specific intent to k ill, and that they were trained that when
ever they use their firearm s to "shoot to kill. ” [A. 218 (Tr. 526)- A 471-72
n
(Ex. 47A at 13-14); A. 495-96(Ex. 47B at 41-42)]. It is clear from the
testimony of both officers that, because of their prior experience with the
6/ The suspect who fled with Freddie escaped, but turned himself in at
police headquarters the next day in the company of his brother-in-law.
[A . 300(Ex.6N at 9)]. On January 17, 1972 this youth (age 17), by con
sent, was adjudicated delinquent by the Juvenile Court and placed on pro
bation in the custody of his sister. [A. 302(Ex.8B)]. The third youth
(age 18) had not fled, but had hidden inside the building where he was
apprehended. [A, 299(Ex, 6N at 2)]. Burglary charges were placed against
him, and the record reflects only that his bond was set at $500 by a City
Court judge, [A. 301(Ex. 6N at 10)]. A juvenile court o fficer, called by
defendants, testified that had Freddie Lee Berry lived he would have been
returned to Juvenile Court and incarcerated in a state juvenile institution.
[A . 235(Tr. 584)]. Under Tennessee law, he could have been incarcerated
until his eighteenth birthday. TENN. CODE ANN. §37-437 and §1-313.
7/ Defendant Richards joined the MPD on September 30, 1968. [A. 281
TEx . 4B at 2)]. He took a 7-week course at the Police Training Academy
and became a patrolman on November 14, 1968. [A. 279 (Ex.4A at 3)].
[Footnote cont'd on next page]
-10-
burglarized prem ises, they knew no persons were in the building at
that time of night [A. 223-25, 227-29 (T r. 539-41, 548-50)], that they
did not believe that Freddie Lee Berry or his companion were armed
or presented a threat to human life [A, 219-22 (Tr, 531-34)], and that they
fired their weapons solely to prevent escape from a crime against property.
[A. 85 (Tr.85); A. 230 (Tr.551)]. The district court accordingly found
that it was only reasonable to believe that the crime involved was one
against property and not against persons. [A. 248(Mem.Op. 13)].
As the district court found, MPD, by January 8, 1972 , had
7/ [ ConFd]
Dn two other occasions defendant Richards has used deadly force against
persons. In 1969 he shot and killed an unarmed fleeing burglary suspect,
a black adult. [A. 473-77(Ex.47A at 16-20); A, 283(Ex.4B at 12)]. In 1973
he shot and wounded a black adult in self-defense. [A, 478-81(Ex. 47A at
22-25); A. 283-84(Ex. 4B at 12-13)]. Defendant Richards stated that he was
trained to use deadly force as a last resort to arrest fleeing felons. [A . 471
(Ex.47A at 13)]. Although he did not understand MPD to differentiate between
types of felonies (as it now does) in authorizing deadly force to arrest, he
testified he would not shoot at a fleeing person suspected of receiving stolen
property. He distinguished that crim e, which is a felony, from the felony of
burglary on the ground that in the form er crime the owner had already been
deprived of his property and "[y]ou can get him [the suspect] sooner or later
anyway. " [A.484(Ex. 47A at 32)]. In the latter crime (burglary), on the other
hand, Richards perceives a better opportunity to "save" the property,
[A. 482-84(Ex„47A at 30-32)]. Richards also would not "now" shoot at a
fleeing em bezzler, which refusal he feels would be a violation of MPD
rules for which he would probably be disciplined. [A. 485 (Ex.47A at 34)].
Defendant Cox joined the MPD in 1964. [A. 281 (Ex. 4B at
2)]. He received 12 weeks of training at the Police Academy [A 489
(Ex. 47B at 4)]. At some time prior to 1972, defendant Cox fired his
pistol at a fleeing stolen car occupied by a black male. No one was
J O ’ 17-20)]- And in 1969 he fired his weapon
at a black fleeing burglary suspect who refused to halt when ordered to
do so. [A. 283(Ex. 4B at 12); A. 286(Ex. 4C at 5)]. Cox, like Richards
was trained to use deadly force as a last resort to arrest all fleeino-
felons. [A. 490(Ex. 47B at 9)]. ^
-11-
distributed generally to line officers only two instructive statements
concerning the propriety of using deadly force. One such statement was
contained in a rules and regulations manual prepared in 1961 by defendant
Henry Lux, form er Chief (then Assistant Chief) of Police. In the words
of the district court, this manual "criptically specified" [A . 245 (Mem.
Op. 10)] that” [n]o member of the Department shall intentionally fire any
8/
weapon except as authorized by law ." [A. 315(Ex. 11, §4.113)]. And
in 1969 Chief Lux and the then Director of F ire and Police, in response
to "considerable publicity recently in the newspapers regarding alleged
'police brutality, ’ " issued a departmental communication to "a ll personnel"
9/
which, inter a lia , quoted TENN. CODE ANN. §40-808 and advised that
8/' In contrast, numerous non-life-and-death matters are the subject of
extensive discussion in the manual. Compare, for example, the detailed
instructions pertaining to the hand salute. [A . 316 (Ex. 11, §4.153)],
9/§40-808 was first adopted as §5040 of the Tennessee Code of 1858. It
reads: 'I f , after notice of the intention to arrest the defendant, he either
flee or forcibly resist, the officer may use all tlie necessary means to
effect the arrest. " This statute has been properly construed as a simple
codification of the common-law allowing the use of deadly force to arrest
any felony suspect. Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.
Tenn. 1971) (three-judge court). Although the statute is worded broadly
enough to include all criminal suspects, the Tennessee Supreme Court
has construed (or ignored) the language by adopting the common-law
felony/misdemeanor distinction. (See cases cited at end of this note).
In one of the first reported Tennessee”Supreme Court decisions to con
sider the use of deadly force by a police officer, the court reviewed a
constable's manslaughter conviction for killing an escaping prisoner who
had been convicted of assault and battery, a misdemeanor. Reneau v.
State, 70 Tenn. 720 (1879). Without reference to §40-808's predecessor,
the court adhered to the felony/misdemeanor distinction of the common
law and affirmed the conviction. In the course of decision, the court
admonished:
[Footnote cont'd on next page]
-12-
deadly force is authorized to arrest felons but not misdemeanants.
1 °/
[A . 449-51(Ex. 38)].
Freddie Lee Berry was the first of four black suspects, three
of whom were killed, to be shot by Memphis police officers during the
first three weeks of January 1972. [A. 216 (Tr.494)]. A fter the last
of the four shootings, defendant Mayor Wyeth Chandler, on January 19,
issued a statement in response to rising community controversy over the
9/ [Cont’d]
It is considered better to allow one guilty only
of a misdemeanor to escape altogether than to
take his life. And we may add that it may be a
question worthy of consideration whether the
law ought not to be modified in respect to the
lower grade of felonies, especially in view of
the larger number of crimes of this character
created by comparatively recent legislation,
whether as to these even escape would not be
better than to tal^e life.
Id. at 721-22. The Tennessee Supreme Court has never returned to that
question, however, and form has prevailed over substance as the words
of the common law have become adopted without further inquiry into the
continued validity of their original meaning. See Johnson v. State, 114
S.W.2d 819 (Tenn. 1938); Scarbrough v. State, 76 S.W .2d 38TTfenn. 1929);
^ v e V. ^ a ss , 238 S.W. 94 (Tenn. 1922); State v. Dunn, 282 S.W.2d 203
(Tenn. App7T.943).
10/ A sim ilar policy statement was contained in a policy and procedure
manual, revised in 1967, maintained at the administrative level of the Police
Department [A. 317(Ex. 12)], and in a 1969 memorandum to "a ll commanding
o ffice rs " whose purpose was to prohibit the use of warning shots, but which
also stated: "Generally the firing of a weapon constitutes the use of deadly
force. Deadly force should be used only when necessary to effect the arrest
of a felon, prevent the commission of a felony or when necessary in self
defense. " [A . 320(Ex. 13) (emphasis in original)]. A detailed firearm s
training instruction manual (Ex. lOA) was not prepared by the Department
until after January, 1972. [A . 246(Mem.Op. 11)]. D irector of Police Jay
W. Hubbard acknowledged the need for more specific guidelines to govern
the use of deadly force [A . 91, 103(Tr. 125, 155); A. 533-34(Ex.47 F at 25-26)],
as did Mayor Chandler (see text following this note).
-13-
use of deadly force by police officers. [A . 321 (Ex. 15 )].~ Among
other things, the Mayor said:
In view of the latest situation involving the
use of extreme force, we all agree that an
interim policy should be devised by the ad
ministration of the Police Department at the
earliest possible time, hopefully that they
would draw some guidelines in the use of
weapons affecting the protection of the c iti
zens of this city.
I plan to get with Chief Price and members
of our legal staff and draw up some interim
guidelines, subject to comment and review,
as soon as possible.
A new deadly-force policy was issued the next day, January 20, 1972.
[A. 322(Ex . 16)]. That policy narrowed the facial breadth of the common-
law rule, but its practical effect was only to eliminate auto-theft suspects
11/ Defendant Chandler, who had been a Memphis City Councilman for
four years and was a practicing attorney in the Memphis bar, took office
on January 1, 1972 as the elected mayor of Memphis. [A . 506-07(Ex. 47E
at 4-5); A. 282(Ex. 4B at 5)]. Chief Lux had recently retired and Mayor
Chandler had appointed defendant B ill P rice to be Chief of Police.
The office of D irector of Police (ultimately filled by Jay W. Hubbard)
had been vacant for some time. Defendant Chandler testified that
"[i]n essence, in January of 1972 I was the director of the Police
Department and served as such until Hubbard came in. " [A. 509
(Ex. 47E at 9)]. At the time he took office defendant Chandler had
been a lawyer for eighteen years. He "knew generally what their [MPD]
policies were, and [he] made no move to change one way or the
o th er.” With regard to the policy authorizing the use of deadly
force to effect the arrest of all categories of fleeing felons, defendant
Chandler admitted that '1 knew that policy and did nothing to change
i t . " [A. 510 (Ex. 47E at 10)]. Chief P r ice , previously an assistant
chief, had participated in prior departmental discussions about chang
ing the deadly force policy. [A. (Tr. 498-99)].
11/
-14-
from the class of fleeing felony suspects against whom deadly
12/
force was authorized. The policy continued, for example, to
authorize such force to arrest burglary and grand-larceny suspects.
A subsequent policy, issued on February 5, 1974, eliminated grand
U/
larceny from the arrest-by-deadly-force category of crim es, but it
continues to include those property-crime suspects situated sim ilarly
12/ Attached hereto as Appendix A is a list of the incidents of police
use of deadly force against property-crim e suspects during a 1969-74
period (with those incidents resulting in death going back to 1966). As
shown by the Appendix, burglary and auto theft constitute all but 5 (which
were larceny-theft circumstances) of the 114 property-crime situations
involving police use of deadly force. With respect to the 1972 elimination
of auto-theft suspects from the list of those against whom deadly force
to arrest is authorized, Mayor Chandler explained that a particularly
egregious incident involving an auto theft had resulted in the death
of a juvenile suspect at the hands of police officers [A. 513-16 (Ex.
47E at 20-23)],and '7 agree it may be a felony to steal a car
that you don’t own, but I never put them in the same category [as
those crim es for which deadly force to arrest should be authorized]
because tliey haven't, there is no danger to life or limb in that."
[A. 524(Ex. 47E at 34)]. Mayor Chandler also acknowledged the
practical reality that police officers never shoot at fleeing "white
co lla r" crim inals, such as em bezzlers, because he does not "think
the em bezzlers have ever been considered the felons of the type that
you bring down, you know, on the s tree ts ." a d . ) ( ] ^ ^ f . note 7 , supra).
13/ D irector Hubbard testified that grand larceny was eliminated be
cause "[w ]e were strictly dealing with property, and we, we do value
the human life, and we do prefer not to take it, i f only property is
in v o lv e d .. . ." [A. 104 (Tr. 156)]. Mayor Chandler expressed a sim ilar
belief that the overriding concern should be the protection of human
life [e .g . , A . 524 (Ex.47E at 34)], yet the City's deadly-force policy
was and" continues to be substantially broader.
-15-
to plaintiff's deceased son. Memphis policy has never distinguished
between suspects known or thought to be juveniles and those known
or thought to be adults in the authorization to use deadly force.
1 1 /
[A. 118 (T r. 179)].
11/
14/ As used hereinafter, "property-crime suspect" or "fleeing property
crime suspect" refers to a suspect, such as plaintiff’ s son, who, neither
by his conduct in allegedly committing a non-violent felony against property
(or an equivalent delinquent act), nor by his flight, posed or poses a sub
stantial risk of death or serious bodily harm to a police officer or any
other person. See, A L I, MODEL PENAL CODE §3.07 (P .O .D . 1962).
We utilize herein, as we did below, the "property crim e"/
"violent crim e" classifications established by the Federal Bureau of
Investigation in its annual Uniform Crime Report, CRIME IN THE
UNITED STATES. The 1971 Report [A . 467(Ex. 43 at 5)] describes
seven offenses winch "as a group.. . represent the most common local
crime problem";
Offenses of murder, forcible rape, robbery,
;uid aggrevated assault are categorized as v io
lent crim es. Offenses of burglary, larceny $50
and over in value, and auto theft are classed
as crim es against property.
15/ In the period 1969-71, the Memplus Police Department arrested
14,466 persons for the three major property crimes (burglary, larceny,
auto theft). Of this total number arrested, 7, 506 (or 52%) were juveniles
(under 18 years of age). [A. 456(Ex. 40A)]. The record herein reveals
that a number of police departments, including those of Oakland, Cali
fornia [A. 393 (Ex. 27B)], New Haven, Connecticut [A . 417 (Ex, 271)],
and Kansas City, Missouri [A. 429(Ex. 29)], prohibit the use of deadly
force to arrest those "felony" suspects known or believed to be juveniles.
The Boston Police Department, in a comprehensive survey and evaluation
of the use of deadly force, determined that ”|'o]nly a very few departments
advised officers with regard to this subject [shooting juveniles], " but that
the "general pliilosophy" was "to refrain from shooting unless there was
an immediate threat to life, " [A. 446 (Ex. 31 at 17) (I .D .)]. The Boston
report continues [A. 448(Ex. 31 at 33)];
[Footnote cont’d on next page]
-16-
Although there are (somewhat inconsistent) indications from
some of the City's officials that deadly force should be confined to those
situations where it is necessary to the protection of life or bodily safety,
one of the two principal reasons advanced by defendants in support of the
16/
15/ [Cont'd]
Perhaps the most important consideration is
the fact that in our criminal justice system,
with the exception of extreme cases involving
a homicide or other crime involving potential
deadly force, juveniles are never convicted of
any crim e. Rather, their cases are adjudicated.
Upon reaching adulthood, juveniles' records are
expunged. Obviously i f they have been fatally
wounded, they do not have tiie second chance,
the chance to start with a clear record, for
which our system of justice provides. Indeed
anytime an officer fires his weapon at a sus
pect he may be bringing to an end the crim inal
justice process with a degree of finality that
has no equal.
Boston has since issued a new deadly force policy (Appendix B hereto),
wliich provides: "An officer of this Department sh a ll.. . refrain from the
use of firearm s against persons known or thought to be under the age of
17, except when no less drastic means are available to defend himself
or another from an unlawful attack which the officer has reasonable cause
to believe could result in death or great bodily injury. ” The district court
held that plaintiff failed to carry the burden of proving that officers Cox
and Richards knew or should have known that plaintiff's son was a juvenile
[A . 252(Mem. Op. 17)], but that finding misses the point that the deadly
force policy makes no juvenile/adult distinction and the officers were
therefore not trained--except perhaps on an ad hoc basis--to differentiate
between juveniles and adults in the use of deadly force.
][6/ note 13, supra. In addition, D irector Hubbard testified:
Now, i f we had a situation where you apprehended
them inside the prem ises, you had them basically
in custody and you satisfied yourself that it was
only against property and not against any person,
and then in the process of their trying to, they
[Footnote cont'd on next page]
-17-
use of such force against those in Freddie Lee Berry 's shoes is that it
is authorized by the common-law felony-arrest rule as adopted in Ten-
17/
nessee. The second reason, also not confined to the protection of human
life,is that the use of deadly force against property-crime suspects operates
16/ [Cont’d]
caught an unguarded moment and took off, I would
say that the use of deadly force might be questionable
there for a burglar, but you have first ascertained to
your own satisfaction that tliis is all that it was, nothing
more.
[A . 540(Ex. 47F at 32)]. That is a very precise (though unwitting) statement
of the circumstances under which plaintiff's son died. D irector Hubbard
further emphasized that "the primary thing to defend is against crimes
against people. Property crimes are serious, but when you have a victim
you are more intent on getting the person responsible and bringing them to
justice. " [A. 541 (Ex. 47F at 33)]. M oreover, other Memphis police
officials do not, at least by personal practice, sanction the use of deadly
force except in self-defense or defense of others. For example. Inspector
Jewell G. Ray, during his 19-1/2 years as a police o fficer, fired his pistol
only twice, both times in self-defense. [A . 549(Ex. 47H at 27)]. Although
he encountered a number of situations in which he felt that deadly force
would have been authorized. Inspector Ray imposed upon himself the
standard of endangering human life only when necessary to the preservation
of life or bodily safety. [A. 550-51 (Ex. 47H at 28-29)]. Former Chief
B ill P rice was on the police force thirty-three years and never fired his
gun in the line of duty, although he felt that he "could have killed a dozen
lega lly ." [A. 546(Ex. 47G at 19)]. The district court was not influenced
by this testimony, but it did note: "Some responsible Memphis police
officials perceive the use of deadly force to be improper in circumstances
where it appears to have been otherwise authorized by written or stated
policy, in the case of fleeing felons reasonably suspected of committing
a property crime. " [A . 249(Mem. Op. 14)].
n / The principal proponent of this "reason" is former Chief Lux, who
testified that when he was with the Department he felt bound by TENN.
CODE ANN. §40-808 (see note 9, supra), which he construed as prohibiting
the adoption of a p o lic ;p ^ c h restricted the use of deadly force more
[Footnote cont'd on next page]
-18-
M /
to deter criminal conduct. Nevertheless, defendants are obviously
unwilling to assert that the protection of property alone justifies the death
of a property-crime suspect such as plaintiff's son. Consequently, in addi
tion to relying solely on the common-law rule and the crime-deterrence
argument, defendants attempt to allay their uneasiness by employing
a conclusive presumption that a property-crime suspect has also committed
a crime against persons. [A. 100-02(Tr. 145-47); A. 544-45(Ex. 47G at
16-17)]. Defendants would ignore the fact that this presumption was plainly
incorrect in this case (see pp. 8-11 and note 16, supra), and that it is
frequently contrary to fact (as w ill be discussed, along with the other two
justifications, in the Argument section, infra). This effort blindly to
17/ [Cont'd]
severely than was allowed by the common-law rule. [A. 130-38(Tr. 201-
09)]. The City, however, necessarily concedes--by its adoption of the
January 20, 1972 and February 5, 1975 policies which are narrower than
the common-law rule--that it is not so confined. This would be obvious
from the face of the statute in any event, for it is not an affirmative re
quirement but rather a procedural adaptation of the common law--and a
rather vague one at that (see note 9, supra). The City of Knoxville,
Tennessee, has also modified the common-law rule by adopting a policy
which limits the use of deadly force in the fleeing felon situation to those
circumstances where such force is "necessary to effect the arrest for
a felony dangerous to human life (murder, manslaughter, rape, armed
robbery, first-degree robbery, arson or kidnapping) after peaceful al
ternatives have been exhausted. " [A. 426(Ex. 28)].
18/ Based on the testimony of defendants Chandler and Lux [A. 520-21 (Ex.
47E at 30-31); A. 137-38 (Tr. 208-09)], as well as that of Director Hubbard
[A. 103-08 (Tr. 155-60)], the district court determined "that one of the prin
cipal purposes of Memphis’ policy regarding use of deadly force insofar as
they attempt to justify the possible death of fleeing burglary suspects, is to
deter criminal conduct. " [A. 248(Mem. Op. 13)].
-19-
invoke such an irrebuttable presumption, however, does amount to at
least a tacit concession from defendants that human life has a higher value
than the bare protection of property interests.
Finally, we briefly mention here the facts (to be detailed in
Argument IV, in fra ) which raise a substantial inference that Freddie
Lee Berry 's death occurred as a result of racial discrimination. Im
plementation of the City's deadly-force policy occurs in the context of
substantial racial discrimination in the employment practices of the
MPD [ e . g . , A . 379-89(Ex. 26 at 7-17)], and, more importantly, in
the context of longstanding racial abuse, brutality, and general discrim
ination against black citizens in the City's law enforcement practices.
gv , A. 180-98(Tr. 376-94)]. This evidence is uncontroverted in the
record, although the district court chose to ignore it.
Against this general background, the City's deadly force policy,
vesting virtually unfettered discretion in the officer on his beat (see note 10,
19/ The fact is, nonetheless, that while the use of such a conclusive pre
sumption may make it easier for defendants to justify their policy to them
selves, the operative effect is to undermine the very value of human life
that led the City's officials to create the presumption in the first place.
Chief Lux testified that there is considerable peer group pressure on
police officers to use deadly force in all circumstances in which it is
authorized. [A. 147-49 (Tr. 233-35)]. This peer group pressure was sub
stantially enhanced by the open-ended nature of the City's deadly-force
policy (see note 10, supra, and accompanying text). Such pressure can
only be increased by instilling in officers the notion that, contrary to
what they see with their own eyes and reasonably believe, a property-
crime suspect has also committed a crime of violence.
- 2 0 -
supra, and accompanying test), is implemented. The result, in
summary, is that black property-crim e suspects are dispropor
tionately subjected to deadly force in contrast even to the percentage
of blacks who are arrested for such property crimes. For a 1969-71
period, the racial difference was statistically significant at the .02
level ( i .e . , there are only two chajnces in 100 that the difference is
due to chance), a fact from which plaintiff’ s expert witness concluded
that a disparate impact on blacks, with race being the operative factor,
is the result of police uses of deadly force against property-crime
suspects in Memphis. [A. 463 (Ex. 42A)]. This evidence also
was neither explained nor contradicted by defendants.
20/ Plaintiff had prepared for evidence a larger sample of data in
cluding police shootings and arrest statistics for a 1969-74 period. From
this larger sample, plaintiff's expert found a racial difference statistically
significant at the .0001 level (less tlian one chance in 10,000 that the dif
ference is due to chance). [A . 457(Ex. 42)]. The district court, however,
refused to admit any data pertaining to events occuring after January 8,
1972, on the theory that such subsequent events were not sufficiently re le
vant to a prior use of deadly force. [A . l59-60(Tr. 255-56)]. We submit
that this was an erroneous evidentiary ruling for the reasons set forth in
P la intiff's Memorandum in Support of the Admissibility of Certain Evidence,
filed in the district court on May 16, 1975 (Record Item No. 80 in this Court),
See Rule 406, Federal Rules of Evidence; C. MCCORMICK, LAW OF E V I
DENCE §§162,167 (1954). M oreover, the larger sample is certainly ap
propriate, aside from any liability issue, in evaluating the general opera
tion and effect of, and justification for, defendants' deadly-force policy
(the purposes for which the information collected in Appendix A hereto
is presented). With respect to the racial discrimination claim, plaintiff's
expert determined that the smaller 1969-71 sample, prepared in view of
the evidentiary ruling, served to reinforce his conclusions that the City's
deadly-force practices have a disparate impact on blacks explainable only
by the race factor. [A . 200-02(Tr. 422-24)]. (A larger sample pre-dating
1972 was not possible, it should be noted, because of defendants' claimed
inability to produce information for periods prior to 1969. [A. 157-58
(Tr. 253-54)].)
- 2 1 -
The District Court’ s Decision
The district court's memorandum opinion of June 30, 1975 finds
the facts surrounding the death of plaintiff's son essentially as set forth
at pages 6-16, supra. From these facts the court concluded that de
fendants Cox and Richards reasonably believed that it was necessary to
shoot Freddie Lee Berry to keep him from escaping. This ultimate
finding of fact resulted in the conclusion that the defendant officers liad
not acted contrary to Tennessee law [A . 251-52(Mem.Op. 16-17)]; plaintiff's
request for declaratory judgment and consequent damages on her pendent
state law claims was therefore denied.
With respect to plaintiff's federal claims, the district court's
findings, except those concerning the circumstances on the night of
January 8, 1972, are frequently im precise and incomplete, and its con
clusions of law appear in scattershot fashion. In b r ie f , the court denied
plaintiff's request for a declaratory judgment that the City's deadly force
policy, as applied and as it resulted in the death of plaintiff's son, is uncon
stitutional under the Fourth, Eighth and Fourteenth Amendments. [A. 257-58
(Mem.Op. 22-23)]. The court also held, without shifting any burden of
explanation to defendants, that plaintiff failed to prove unlawful racial
discrimination and, im plicitly, that plaintiff failed even to establish a
prima facie case of discrimination. [A. 254-56 (Mem.Op. 19-21)]. With
respect to a jurisdictional issue, the district court "declines to find subject
matter jurisdiction over plaintiff's constitutional claims in this case by
- 2 2 -
virtue of 28 U. S. C. §1331(a). City of Kenosha v. Bruno, 412 U.S.
W
507 (1973).” [A. 256 (Mem.Op. 21)].
We do not challenge on this appeal the district court’ s disposi
tion, with respect either to the facts or to the law, of plaintiff's pendent
state law claims. Rule 52(a), Fed. R. Civ. P . ; Beech v. Melancon,
465 F. 2d 425 (6th Cir. 1972), cert, denied, 409 U.S. 1114 (1973). "The
^1/ The only §1331 jurisdictional issue that had existed in the case, prior
to the court's opinion, was whether the court had jurisdiction over the
City under §1331. But the court's single-sentence holding in the opinion
(quoted in the text) appears to deny jurisdiction over any defendant under
§1331, necessitating that we present the issue that broadly on appeal.
22/ The court also appears to have held [A. 252(Mem. Op. 17)] that
officers Cox and Richards would also enjoy a good-faith defense with
respect to plaintiff's federal claims (cf. Pierson v. Ray, 386 U.S. 547,
555-57 (1967)) because they acted in conformity with the C ity's deadly-
force policy which was authorized by state law. It is not possible to
know with certainty whether the district court would have reached the
same apparent conclusion had it found the City's policy unconstitutional;
for once the court declared that the policy was valid on the facts of this
case, and that the two officers did not violate the policy, it necessarily
followed that the officers were not liable in damages irrespective of
their defenses. Nevertheless, we suspect, given this Court's decision
in Beech v. Melancon, supra, that the district court would have accorded
a good-faith defense to the two officers even had it entered a declaratory
judgment, as requested by plaintiff, that the City's policy is unconstitu
tional. In these circumstances, plaintiff would abandon her claim for
damages against these two defendants were it not for a distinguishing fact
of undetermined significance. As previously stated (see text at note 7,
supra), defendants Cox and Richards testified that they~shot at Freddie
Lee Berry with the specific intent to kill him, because that is the way
they were trained. Former Chief Lux vigorously disputed the claim that
MPD officers were trained to shoot with the intent to kill in these circum
stances. [A. 144-47 (Tr. 230-33)]. To Cliief Lux "the inference [of this
testimony] is that the officer is going to execute somebody. I don't think
[Footnote cont'd on next page]
-23-
problem [on this appeal] is [therefore] not whether state law has been v io
lated but whether an inhabitant of a State has been deprivea of a federal right
by one who acts under 'color of any law .' " Screws v. United States, 325
U . S. 91, 108 (1945), Accord, Lynch v, Johnson, 420 F. 2d 818, 820-21
(6th Cir. 1970) ("we apply a federal rather than a state standard"); Nelson
V. Knox, 256 F. 2d 312 (6th Cir. 1958). Plaintiff asserted in the district
court that the shooting death of her son and the policy that imposed it were
in derogation of various provisions of the federal Constitution and, in
addition, that the deadly force policy as implemented generally and
against her son constituted racial discrimination violative of 42 U .S .C .
§1981 and the Equal Protection Clause of the Fourteenth Amendment,
22/ [Cont'd]
tlTe law gives him this right at all, " [A. 145 (Tr. 231)]. Chief Lux
further stated: "I don't agree with that statement [that officers are
trained to shoot to k ill]. I'm not aware of any instructions that any
officer has been given to execute anybody" [A. 146 (Tr. 232)]; and
he "[v ]ery defin itely .. .d isagree[s] with any who, anyone who has
that attitude, certa in ly ." [A. 147 (T r. 233)], The district court
noted this conflict in testimony among defendants, but the court neither
resolved the conflict nor attributed any significance to either version,
[A. 243 (Mem.Op. 8)]. It seems obvious, however, that if defendants
Cox and Richards were found to have acted in a manner contrary to their
training, the availability of a good-faith defense would be cast in substan
tially greater doubt. I f this Court holds that plaintiff is entitled to a
declaratory judgment that the City's policy is unconstitutional, the issue
of damage liability on the part of defendants Cox and Richards should
therefore be remanded for further consideration.
The district court did not discuss or analyze any defenses that
might be available to defendants City, Chandler, P rice and Lux. Hence,
should plaintiff prevail on any of the issues presented for review here,
the case must of necessity be remanded for further consideration as
to the damage liability, if any, of these defendants,
-24-
She accordingly sought "a declaratory judgment as a predicate to a
23/
damage award’ ' and money damages for the violation of federal rights.
It is the district court's denial of plaintiff's request for declaratory judgment
in these respects that we present for review by this Court. In our view of
the case, appropriate decision as to which, i f any, of the defendants must
respond in money damages to plaintiff must be left to the district court
in the first instance, upon remand following a decision here that federal
constitutional and/or statutory violations have occurred. (See note 22,
supra).
23/ W olff V. McDonnell, 418 U.S. 539, 555 (1974). Even if plaintiff
were not seeking money damages, she would nevertheless be entitled
^ pursue her declaratory judgment action. Mattis v. Schnarr, 502
F.2d 588 (8th Cir. 1974) (constitutional challenge to Missouri statutes
authorizing deadly force to arrest).
-25-
Because of the length of this brief--necessitated by the
lack of direct precedent with respect to the constitutional questions
11/
presented, the extraordinary importance of these questions, the
need for complete analysis of the racial discrimination and juris
dictional issues, and the inadequacy of the district court's findings
and analyses--we deem it helpful to summarize the argximents which
follow. Some of the arguments are in the alternative; the order of
their presentation is not intended as a priority ranking.
SUMMARY OF ARGUMENT
24/ This Court has never considered the constitutionality of using
deadly force to arrest property-crime suspects in circumstances in
wliicli the police officers did not "reasonably and in good faith believe
that their lives or those of third persons would be endangered if they
refrain[ed] from employing deadly force. . . . " Beech v. Melancon,
supra, 465 F.2d at 426 (McCree, J ., concurring). In Aldridge v.
Mullins, 377 F. Supp. 850 (M.D. Tenn. 1972), a ff’d, 474 F.2d 1189
(6th Cir. 1973), the police officer was held to have used deadly
force in violation of state law (see note 9, supra) and, thereby, to
have violated 42 U .S .C . §1983. a .
(1961). And in Smith v. Jones, 379
1973), aff'd, 497“ T T d 924 (6th Cir.
ed, almost successfully (see 379 F.
Monroe v. Pape, 365 U.S. 167
F. Supp. 201 (M .D. Tenn.
1974), the decedent had attempt-
___ Supp. at 202-03), to run over
the police officer with an automobile--"the felony of assault with in
tent to commit second degree m urder." Id. at 204.
In Cunningham v. Ellington, 323 F. Supp. 1072 (W.D. Tenn.
1971), the court, without an evidentiary record, considered the facial
validity of TENN. CODE ANN. §40-808, a state codification of the
common-law felony-arrest rule (see note 9, supra). The Cunningham
court held the statute to be facially constitutional as against conten
tions that the statute (1) violates the Eighth Amendment, (2) is un
constitutionally overbroad, (3) is unconstitutionally vague, and (4)
denies equal protection because of the types of crimes the state has
(Footnote cont'd on next page]
-26-
1. The use of deadly force to arrest a property-crime
suspect directly impinges upon his fundamental constitutional rights
to life and to a tria l. In order to sustain such interference under
the Due Process and Equal Protection Clauses of the Fourteenth
Amendment, the state must demonstrate the existence of govern
mental interests sufficient to override the express constitutional
rights involved.
In the circumstances of this case, the City has not
argued that its interests in protecting private property are, stand
ing alone, sufficient to justify taking Freddie Lee Berry 's life.
Rather, the City asserts two reasons and a conclusive presumption
which it considers sufficient to justify the death of plaintiff's son
and sim ilarly-situated property-crime suspects: (1) the common-
law felony-arrest rule, as codified in Tennessee, authorizes the
use of such deadly force. (2) The use of deadly force against
fleeing property-crim e suspects operates as an effective deterrent
to criminal conduct. (3) A third-degree burglary suspect--but
24/ [Cont'd]
classified as either felonies or misdemeanors. Of the principal
arguments made by plaintiff on this appeal, only the Eighth Amend
ment question (Argument III, infra) was considered in any way by
Cunningham, and there is a major factual distinction with respect
to that question. M oreover, the court in Cunningham was not called
upon to consider the application of the statute; here, in contrast,
the City's deadly force policy and practices come before the Court
explicated by a full evidentiary record.
-27-
not an auto-theft or a grand-larceny suspect, for comparative
exam ple--is irrebuttably presumed to have also committed a crime
of violence against persons.
When scrutinized under applicable legal standards, these
justifications are wholly insufficient to justify the extinction of
Freddie Lee Berry 's constitutional rights to life and to a trial;
they are, in fact, illogical and irrational propositions whose factual
relation to their avowed purposes is attenuated at best. The common-
law rule is an anachronism. The assertion that the sporadic
infliction of bodily injury upon a fleeing property-crime suspect deters
criminal conduct, even if true, is an unconstitutional justification; and in
any event, it is wildly speculative and contrary to fact. The literally
irrebuttable presumption that fleeing property-crime suspects have en
dangered the lives or bodily safety of others is sim ilarly conjectural and
without factual support; it is contrary to the facts surrounding the death
of plaintiff's son; and it is contrary to the City's actual experience with
fleeing property-crim e suspects. The use of deadly force on the facts of
this case is therefore unconstitutional under the Due Process and
Equal Protection Clauses of the Fourteenth Amendment. (See
Argument I, infra).
2. The use of lethal force solely for the purpose of arrest
ing plaintiff's son constituted an unreasonable seizure in violation
of the Fourth Amendment. An arrest is a "seizure"; consequently,
it is subject to the Fourth Amendment. As previously demonstrated,
-28-
the use of deadly force as authorized and implemented against
plaintiff's decedent is unreasonable. It therefore violates the
Fourth Amendment, (See Argument IT, infra),
3, The use of deadly force against a suspect fleeing from
a non-violent property crime is cruel and unusual punishment
condemned by the Eighth Amendment, Because a principal purpose
of the Memphis deadly-force policy is crime deterrence, such use
of deadly force clearly constitutes "punishment," The deadly force
used here is cruel and unusual by virtue of its infrequency and
capriciousness in application, because of its extremeness which is
degrading to human dignity, and due to its disproportionality and
excessiveness relative to its asserted justifications and the kind
of wrongful conduct in which plaintiff's son was involved, (See
Argument Til, infra),
4, Uncontroverted record evidence establishes that the City's
deadly-force policy, as it applies to fleeing property-crime suspects,
is implemented disproportionately against black, as compared to
white, suspects. These statistics appear against a background of
undenied racial discrimination in law enforcement practiced by the City,
At the very least, this evidence results in a prima facie showing of racial
discrimination contrary to 42 U, S. C, §l98 l and the Equal Protection
Clause, and it creates a presumption that race was a significant factor in
the City's deadly-force policy and in the shooting death of plaintiff's blacK
minor son authorized by the policy. The district court therefore erred in
•29-
ARGUMENT
I.
DEATH IMPOSED UPON A FLEEING PROPERTY-
CRIME SUSPECT DEPRIVES HIM OF FUNDA
M ENTAL CONSTITUTIONAL RIGHTS; SUCH
DEPRIVATION CAN AVOID INVALID ITY UNDER
THE DUE PROCESS AND EQUAL PROTECTION
CLAUSES OF THE FOURTEENTH AMENDMENT
ONLY BY A SHOWING OF OVERRIDING STATE
INTERESTS; NO STATE INTERESTS SUFFICIENT
TO JUSTIFY THE DEATH OF PLA IN TIFF 'S
DECEDENT ARE PRESENT ON THIS RECORD.
The Due Process and Equal Protection Clauses of the
Fourteenth Amendment require that the Memphis deadly-force policy,
as applied to Freddie Lee Berry, be subjected to stringent judicial
scrutiny because the policy impinges upon and, when successfully
implemented as here, irrevocably extinguishes the fundamental con
stitutional rights to life and to a tria l, as well as other constitutional
rights incident to the right to tria l. When the purposes and
rationalizations asserted in support of the policy are evaluated against
this record, they fail; they are, in fact, so whimsical as to be
inadequate to sustain a policy in which nothing--at least nothing ap
proaching life or the right to a tr ia l-- is at stake.
A. Death Deprives A Suspect of Fundamental Constitutional
Rights ~ ~ ~ ~
-31-
1. The Right to L ife . Whether or not a right is con-
stitutionally fundamental is not always an easy question to answer.
It seems difficult, however, to imagine that the claim to life is not
such a right. The test is whether the asserted right is fundamental
"in the sense that it is among the rights and liberties protected by
the Constitution," San Antonio Independent School District v, Rodriguez,
411 U.S. 1, 29 (1973); i.e . , whether the asserted right is "explictly
or im plicitly guaranteed by the Constitution." T .̂ at 33. Mani-
festly, life meets the test. It is distinctly one of those "[r]ights
San Antonio Independent School District v. Rodriguez,
4Tl U.S. I (1973); Ely, The Wages of Crying Wolf; A Comment on
Roe V. Wade, 82 YALE L7J\ 920 (1973); Comment, Fundamental
Personal Rights; Another Approach to Equal Protection. 40 U CHI
L . REV. 807 (1973T; ------------------------------
Among the rights that have been declared fundamental in equal
protection analysis are equal access to voting, Dunn v. Blumstein,
405 U.S. 330 (1972); the right to travel. Memorial Hospital v.
Maricopa County, 415 U.S. 250 (1974); Shapiro v. Thompson, 394
U.S. 92 (1972); procreation, p in n er v. “Oklahoma, 316 U.S. 535
(1942). See generally San Antonio Independent School Dist. v.
Rodriguez, supra, 411 U.S. at 30-36 & nn. 74-76.
Among the rights that have been declared fundamental in due
process analysis are the right to abort a pregnancy (encompassed
within the right to privacy). Roe v. Wade, 410 U.S. 113 (1973); to
be free of restrictive maternity leave regulations that burden "the
freedom of personal choice in matters of marriage and family l i fe , "
Cleveland Bd. of Educ. v. LaF leur, 414 U.S. 632, 639-40 (1974);
the "rights to conceive and raise one's ch ildren ," Stanley v. Illinois,
405 U.S. 645, 651 (1972); cf. Skinner v. Oklahoma, supFa, 316~u7^.
at 543-45 (Stone, C .J ., concurring). See generally Weinberger v.
422 U. S. 749, 771-72 (1975); Commonwealth” v. O 'Neal, 327
N .E .2d 662, 667-68 (Mass. 1975). ---------
And, as we shall demonstrate in text, the rights to life and to
tria l have also been deemed fundamental.
-32-
far more precious. . . than property rights. ” May v. Anderson, 345
U. S. 528, 533 (1953). It receives explicit recognition and protection
in the Due Process Clauses of the Fifth and Fourteenth Amendments,
which ordain: "nor shall any State deprive any person of life. . . without
due process of law. " The right to life has long been described in equal
27 /
protection and due process contexts as "fundamental. " —
But even if life did not receive express sanctuary in the Consti
tution, it would nevertheless be deemed a fundamental constitutional
right. The primary focus of many provisions of the B ill of Rights and
the Fourteenth Amendment, in an ultimate sense at least, is on the
protection of human life. Thus, even if not explicitly guaranteed, the
right to life would be "necessarily implied by the structure of the.
[Constitution]." Faretta v. California, 422 u. S. 806, 819 (1975).
As Mr. Justice Rutledge put it, we are here concerned "with the right
which comprehends all others, the right to life its e lf ." Screws v.
United States, supra, 325 U. S. at 133 (concurring opinion). Or, as the
Massachusetts Supreme Judicial Court recently stated: "We believe that
the right to life is fundamental and, further, that this proposition is not
27/ See, e. g. , Yick Wo v. Hopkins, 118 U. S. 356, 370 (1886)("the
fundamental rights to life , liberty and the pursuit of happiness");
Johnson v. Zerbst, 304 U. S. 458, 462 (1938)("fundamental human rights
of life and liberty"); Screws v. United States, 325 U. S. 91, 131, 132
(1945)(Rutledge, J. , concurringy(life is among the "clear-cut fundamental
rights"); icl. at 134-35 (Murphy, J. , dissenting)("He has been deprived of
the right to life itself. . . That right was his because he was an American
citizen, because he was a human being. As such, he was entitled to all
the respect and fa ir treatment that behts the dignity of man, a dignity
that is recognized and guaranteed by the Constitution. ").
-3S-
of law, not a 'trial by o r d e a l , w a s considered fundamental even
in those days when Sixth Amendment guarantees were not expressly
binding on the states, but rather were subject to a determination whether
they were "im plicit in the concept of ordered liberty. " Palko v.
Connecticut, 302 U. S. 319,325 (1937). Under that standard, it was said:
"Fundamental too in the concept of due process, and so in that of liberty,
is the thought that condemnation shall be rendered only after trial. " Id
at 327.— ^
29 /
28/ [Cont'd]
Pointer V. Texas, 380
U. S. 400 (1965). The fact that plaintiff's decedent was a juvenile and
subject to the jurisdiction of the state juvenile, as opposed to the criminal
court would not have deprived him of these fundamental rights. Of the
rights enumerated above, only the right to jury trial (see McKeiver v.
Pennsylvania, 403 U. S. 528 (1971))has been held inappITcaYle in any way
to juvenile proceedings. See Breed v. Jones, 421 U. S. 519 (1975)- in
re Winship, 397 U. S. 3 5 8 T l9 7 '^ n re Gault, 387 U. S 1 (1967)
also TENN. CODE ANN. §§37-20rit seq. ~
29/ Screws v. United States, supra, 325 U. S. at 106.
See also Powell v. Alabama, 387 U. S. 45, 67-69 (1932). In Powell,_________
it should also be noted, the Court described the right to counsel as being
of a fundamental character. " I^. at 68. The Court has said of the Sixth
Amendment right to counsel: "This is one of the safeguards. . . deemed
necessary to insure fundamental human rights of life and liberty. " Johnson
V. Zexbst, supra, 304 U. S. at 462. It is now settled that Sixth Amend
ment rights can be abridged only in exceedingly narrow circumstances.
^ , Faretta v. California, supra, 422 U. S. at 819-20 n. 15; Taylor
y. Hayes, 418 U. S. 488 (1974); Johnson v. M ississippi, 403 U. S.
(1 9 7 1 )7 '^ ^ s j . UnHed States,~"382 U. S. 162, 167~W65); In re O liver,
_supra, 333 U. S. at 273. Even in those non-criminal due process situations
not clearly impHcating fundamental constitutional rights, an otherwise
appropriate judicial hearing can be denied only upon the showing of "a
countervailing state interest of overriding significance. " Boddie v
Connecticut, 401 U. S. 371, 377 (1971). --------
-35-
Death therefore deprives a fleeing property-crime suspect,
and it deprived Freddie Lee Berry, not only of the fundamental right
to life , but of fundamental Sixth Amendment rights as well.
B. The Due Process Clause Invalidates State Policies
Which Impinge Upon Fundamental Constitutional
Rights Unless The Policies A re Supported By
Overriding State Interests.
To be sure, "not every encounter between a citizen and a
policeman warrants extended judicial scrutiny and rev iew ," Glasson v.
City of Louisville, 518 F. 2d 899, 901 (6th Cir. 1975), but where the
encounter implicates fundamental rights the need for intense judicial
inquiry is apparent. I^. Such careful scrutiny is required in this case
by the Due Process Clause of the Fourteenth Amendment (1) because the
Memphis deadly-force policy, as broadly applied to fleeing property-crime
suspects, deprived Freddie Lee Berry of fundamental constitutional rights,
and (2) because the deadly-force policy interdicted Freddie Lee Berry 's
fundamental constitutional rights through the use of a conclusive pre
sumption that fleeing property-crime suspects have also engaged in crimes
of violence endangering human life and bodily safety.
1. In V. Wade, 410 U. S. 113 (1973), the Supreme Court
held that the criminal abortion statutes at issue, which prohibited abortion
at any stage of pregnancy except as a life-saving procedure, violated the
Due Process Clause of the Fourteenth Amendment. The Court reached
this conclusion through a fam iliar analytical process. It firs t determined
that the constitutional right of privacy "is broad enough to encompass a
-36-
woman's decision whether or not to terminate her pregnancy. ” Id.
at 153. Because fundamental rights were at stake the Court applied,
under the Due Process Clause, the test of constitutionality requiring
"that regulation of these rights may be justified only by a 'compelling
state interest' . . . and that legislative enactments must be narrowly
drawn to express only the legitimate state interests at stake. " Id.
at 155. Following analysis under this standard of review, the Court
concluded that the state "may [not] override the rights of the pregnant
woman that are at stake," except insofar as essential to preservation
of the state's "important and legitimate interest in preserving and pro
tecting the health of the pregnant, woman. . . [and its] important and
legitimate interest in protecting the potentiality of human life. " Id. at
162.
Roe thus sets forth an appropriate constitutional framework for
31/
scrutiny of the Memphis deadly-force policy.— See also Cleveland Bd.
of Educ. V. LaF leur, 414 U. S. 632 (1974); Stanley v. Illinois, 405 U. S.
645 (1972). That framework requires the state, in order to justify
impinging upon fundamental rights (here, the rights to trial and life),
31/ The criticism most frequently leveled at the decision in Roe-- that
the constitutional right to abortion cannot be derived either "from the
intent of the fram ers, or from the governmental system contemplated
by the Constitution," Ely, The Wages of Crying Wolf: A Comment on
Roe V. Wade, 82 YALE L. 920, 928 (1973)--is not available in the
instant case. As demonstrated in part lA, supra, the constitutional
rights to life and to a trial are not only implicit "from the intent of the
fram ers. . . [and] from the governmental system contemplated by the
Constitution," they are explicitly guaranteed by the Constitution.
-37-
to demonstrate the existence of interests equivalent to or greater
than the rights that are curtailed. Under this standard, the only
state interests that could be deemed "compelling” in this case, as in
Roe, are the state's legitimate concerns with the protection of the lives
and bodily security of its residents, including police officers. The
Memphis deadly-force policy, as implemented against plaintiff's decedent,
must therefore be scrutinized to determine whether it serves these
interests and, if so, whether it is "narrowly drawn to express only the
legitimate state interests at stake. "
2. The Due Process Clause also comes into play in this case,
and requires close scrutiny of the challenged deadly-force policy, under
the "irrebuttable presumption" decisions of the Supreme Court. E. g. ,
Cleveland Bd. of Educ. v. LaFleur, supra; Stanley v. Illinois, supra.— ̂
Those decisions are applicable here because the Memphis deadly-force
policy is based upon a conclusive presumption that fleeing property-
crim e suspects have, even though not known by the police officers at
the scene, committed crimes of violence against persons. Such a pre
sumption is subject to close scrutiny where it impinges upon fundamental
rights. See Weinberger v. Salfi, 422 U. S. 749, 771-72 (1975).
32/ See also United States Dept, of Agriculture v. Murry, 413 U S
5U8 (T973lTVlandis v. Kline, 412 U. S. 441 (1973); Bell v. Burs on,
402 U. S. 535"(1971); Skinner v. Oklahoma, 316 U. ST~535,
(1942) (Stone, C.J. , concurring). See generally. Note, The Conclusive
Presumption Doctrine: Equal P r o c e ^ o r Due Protection?, 72 MICH7~X.
REV. 800 (1974); Note, The Irrebuttable Presumption Doctrine in the
Supreme Court, 87 HARV. L. REV. 1534 (1974/
-38-
The function of the irrebuttable presumption doctrine is to
prevent government from pursuing valid ends by means which broadly
condemn the fundamental rights of persons who, neither by their status
nor by their conduct, fit the perceived evil which government is trying,
or legitimately may try, to prevent. In an early statement of the
principles underlying the modern formulation c£ the doctrine. Chief
Justice Stone decried "the wholesale condemnation of a c lass .. . without
opportunity to any individual to show that his is not the type of case
which would justify resort to it , " Skinner v, Oklahoma, supra, 31G
U. S. at 544 (concurring opinion), as "lacking in the firs t principles of
due process. " Id. at 545.
The state is called on to sacrifice no permissible
end when it is required to reach its objective by
a reasonable and just procedure adequate to safe
guard rights of the individual which concededly the
Constitution protects.
Id. And as put by Mr. Justice White in Stanley v. Illinois, supra, 405
U. S. at 656-57;
Procedure by presumption is always cheaper and
easier than individualized determination. But
when, as here, the procedure forecloses the de
terminative issues. . . , when it explicitly disdains
present realities in deference to past form alities,
it needlessly risks running rough-shod over the
important interests [at stake].
Accordingly, policies employing such irrebuttable presumptions
33/ Cf. Tribe, Structural Due Process, 10 HARV. CIV. RIGHTS-CIV.
LIB. L. REV. 269 (1975).
-39-
where fundamental rights are endangered must be scrutinized to
determine "whether the interests advanced [by the proponents] in
support of the rules. . . can justify the particular procedures they
have adopted." Cleveland Bd. of Educ. v. LaF leur, supra, 414 U. S.
at 639. Such a standard of review is especially called for in this case,
the presumption--which can, as here, become literally irrebuttable--
being one that imperils constitutional rights of the highest order.
C. The Equal Protection Clause Also Mandates Strict
Judicial Scrutiny Of The Memphis Deadly-Force
Policy.
Because the Memphis deadly-force policy quite clearly collided
with Freddie Lee B erry 's fundamental constitutional rights, the Equal
Protection Clause also requires that it be "carefully scrutinized,"
Police Dept, of the City of Chicago v. M osley, 408 U. S. 92, 99 (1972),
and allows it to be upheld only to the extent that it is "tailored to serve
34/
a substantial governmental interest. " Id. Thus, to the extent that
w Mosley involved a classification that impinged upon First Amendment
interests. See also Memorial Hospital v. Maricopa County, 415 L). S. 250
(1974)(one-year residence requirement impinging upon the right to inter
state travel); Dunn v. Blumstein, 405 U. S. 330 (1972)(durational res i
dence requirements interfering with rights to interstate travel and equal
access to voting); Shapiro v. Thompson, 394 U. S. 618 (1969)(durational
residence requirement impeding the right to interstate travel); Skinner
Oklahoma, 316 U. S. 535 (1942)(sterilization statute impinging upon
the right of procreation). See generally, Gunther, Foreword: In
Search of Evolving Doctrine on a Changing Court: A Model for a Newer
Equal Protection, 86 HARV. L. REV. 1 (1972); Comment, Fundamental
Personal Rights: Another Approach to Equal Protection, 40 U. CHI. L.
REV. 807 (1973).
The quality of the state interest required to sustain a policy under
this strict standard of equal protection review is variously described as
Footnote cont'd on next page]
-40-
the Memphis deadly-force policy applies to fleeing property-crime
suspects like plaintiff's son, the City has a heavy burden of justification.
Even if fundamental rights were not implicated in this case, it would be
necessary for the City to show sufficient rationality in its deadly-force
policy to pass muster under the less stringent demands of recent equal
35/protection cases which do not involve declared fundamental rights. —
D. The City's Deadly-Force Policy And The Interests
And Presumptions Advanced To Support It, Insofar
As It Sanctioned and Resulted In The Death Of Plaintiff's
Son, A re Illogical, Irrational and Contrary To Fact.
As previously discussed,the City's deadly-force policy, as it
approved and caused death on January 8, 1972, vested in police officers
the discretion to kill any felony suspect whenever they deemed such
force necessary to apprehend the suspect. (See note 10, supra, and
--------
accompanying text; [A. 244-46(Mem. Op. 9-11)]). To support the policy's
W [Cont'd]
"overrid in g ," "com pelling," "im portant," and "substantial." As
Mr. Justice Powell explained in In re Griffiths, 413 U. S. 665,
n. 9. (1973): "W e attribute no particular significance to these variations
in diction. "
35/ See, e. g. , United States Dept, of Agriculture v. Moreno, 413 U. S.
■5I 8 (1973); Weber v. Aetna Casualty & Surety Co. , 406 U. S. 184 (1972);
Eisenstadt v. Baird, 405 U. S. 438 (1972); Reed v. Reed, 404 U. S. 71
See generally Davidson, Welfare Cases and the "New M ajority":
ConstitutlblTarTheory and Practice, 10 HARV. CIV. R IGHTS-C lT.~IJR
L. REV. 513, 529-37 (1975); Gunther, supra note 34, 86 HARV. L. REV.
at 17-20, 26-36; Comment, supra note 34, 40 U. CHI. L. REV. at 810-21.
36/ The district court acknowledged [A. 248-49 (Mem. Op. 13-14)] the
criticism of a Presidential Commission that "[i]n most cities police
[Footnote cont'd on next page]
-41-
result in this case, defendants recite the common law, claim a
deterrent effect on crime, and presume that violence against persons
always accompanies crimes against property.
36/ [Cont'd]
officers receive too little guidance as to when firearm s may be drawn
and used. ” PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, THE CHALLENGE OF CRIME IN A
FREE SOCIETY 119 (1967) [hereinafter "CRIME COMMISSION REPORT"]
[ A. 570 (Ex. 53)]. As the Commission concluded with regard to the
general failure of police departments to formulate policy:
Not only should policemen be guided by departmental
policy in the making of such delicate decisions, but
the people who w ill be affected by these decisions--
the public--have a right to be apprised in advance,
rather than ex post facto, what police policy is.
(A. 569), The district court determined that "Memphis provides its
officers at least as much instruction as the norm. . . ," but it recognized
that D irector Hubbard and Mayor Chandler had acknowledged the need
for more specific guidelines to govern the use of deadly force (see note
10, supra). [A. 249 (Mem. Op. 14)].
We think the district court erred in exonerating defendants'
failure to promulgate guidelines as of January, 1972 on the theory that
their failures were no worse than average. (Police departments cannot
be allowed to establish their own standards of constitutionality any more
than a particular industry, by adhering to industry-wide practices, can
impose its own standard of negligence. See W. PROSSER, LAW OF
TORTS 167 (4th ed. 1971).) "Where, as here, there are no standards
governing the exercise of the discretion granted by the [policy], the
scheme permits and encourages an arbitrary and discriminatory enforce
ment of the law ." Papachristou v. City of Jacksonville, 405 U. S. 156,
170 (1972). It is in such situations that "perhaps the most meaningful
aspect of the vagueness doctrine" comes into play: "the requirement
that a legislature establish minimum guidelines to govern law enforce
ment. " Smith V. Goguen, 415 U. S. 566, 574 (1974). As the Supreme
Court held long ago:
When we consider the nature and theory of our
institutions of government, the principles upon
which they are supposed to rest, and review the
-42-
[Footnote cont'd on next page]
1. The Common-Law Rule. At common law all fe lon ies--
murder, rape, manslaughter, robbery, sodomy, mayhem, burglary,
arson, and larce ny--were punished by death. R. PERKINS, CRIMINAL
LAW 10 (2d ed. 1969).
37/
It is therefore not surprising--especially
in a system of justice which denied felony suspects (who survived death
at the time of arrest) even the right to counsel
38/
■that the common law
W [Cont'dJ
history of their development, we are constrained
to conclude that they do not mean to leave room
for the play and action of purely personal and
arbitrary power. . . . For, the very idea that one
man may be compelled to hold his life , or the
means of living, or any material right essential
to the enjoyment of life , at the mere w ill of
another, seems to be intolerable in any country
where freedom prevails, as being the essence of
slavery itself.
Yick Wo V. Hopkins, 118 U. S. 356, 369-70 (1886). On January 8,
1972, the City of Memphis allowed "such a standardless sweep. . .[to
its] policemen. . . to pursue their personal predilections," Smith v.
Goguen, supra, 415 U. S. at 575, that the City effectively "entrust[ed]
lawmaking 'to the moment-to-moment judgment of the policeman on his
beat. " ' And, we submit, "[w jhere inherently vague [policy]
language permits such selective law enforcement, there is a denial of
due process. " Id. at 576.
37/ See also, e. g. , Wilgus, A rrest Without a Warrant, 22 MICH. L.
REV.“ 54l7T69llt24).
38/ In 1688 England began allowing those charged with treason to be
represented by counsel, but it was not until 1838 that England afforded
counsel generally to those charged with felonies. See Powell v.
Alabama, 387 U. S. 45, 60 (1932).
-43-
authorized deadly force to effect the arrest of all felony suspects.—
In common-law times such a rule was not without its logic, for a suspect
facing a mandatory death penalty could be assumed to be a desperate
40/
person, expected to resist arrest by all possible means.— "His killing
was at best an extra-judicial and premature execution of a penalty which
he had already incurred by his fe lony.” Bohlen & Shulman, Arrest With
39/
and Without a Warrant, 75 U. PA. L. REV. 485, 495 (1927).
41/
But the common-law rule has outlived its original rationale,
and the days have long since passed when ” [t]o be a suspected felon was
often as good as being a dead one. ” T. TAYLOR, TWO STUDIES IN
CONSTITUTIONAL INTERPRETATION 28 (1969). In Tennessee and
throughout the country, the offenses for which death is a punishment
T9/ See generally. Note, The Use of Deadly Force in Arizona by
Pb licFO fficers, 1973 L. & SOC. ORDER 481, 482 [hereinafter "Force
in Arizona'/; Note, Justification for the Use of Force in Criminal Law,
13 STAN. L. REV. 566, 582-84 (196lT~|hereinafter, " Use o f T o r c e ^ .
The conceptual origins of the felony-arrest rule can be traced to the
principle of outlawry, under which criminal suspects were legally stripped
of their humanity. See F. POLLOCK & F. MAITLAND, THE HISTORY
OF ENGLISH LAW MW (2d ed. 1918):
He who breaks the law has gone to war with the community;
the community goes to war with him. It is the right and
duty of every man to pursue him, to ravage his land, to
burn his house, to hunt him down like a wild beast and slay
him; for a wild beast he is; not merely is he a "friendless
man," he is a wolf.
W KENNY’S OUTLINES OF THE CRIMINAL LAW 96 (19th ed. 1966).
41/ "It made little difference if the suspected felon were killed in the
process of capture, since, in the eyes of the law, he had already forfeited
his life by committing the felony. " Force in Arizona, supra note 39,
[Footnote cont’d on next page]
-44-
have long been restricted beyond common-law rules so that the
death penalty has been available only for a handful of the most heinous
and life-endangering crimes. Now the very availability of the death
penalty for any crime is in serious doubt. Furman v. Georgia, 408
U. S. 238 (1972). It is instructive for this case, moreover, that
42/ 43/
Tennessee — and most modern jurisdictions— do not allow the use
41/ [Cont'd]
1^73 L. & SOC. ORDER at 482. "The extirpation was but a premature
execution of the inevitable judgment. " Note, Legalized Murder of a
Fleeing Felon, 15 VA. L. REV. 582, 583 (192^1:
42/ TENN. CODE ANN. §38-102 allows "[rjesistance sufficient to
prevent the offense. . . [to] be made by the party about to be injured" only
where necessary ” [t]o prevent an offense against his person" o r "ftjo
prevent an illegal attempt by force to take or injure property in his
lawful possession. " (Emphasis added). Director Hubbard conceded:
"O f course, if you see someone in the process of entering, I ’d say that
it would be open to a great deal of, of question whether or not deadly
force to prevent them from entering would be justified. . . . " [A. 99
(Tr. 144)].
« / ^ W. PROSSER, LAW OF TORTS 115 (4th ed. 1971). Lse of
Force, supra note 39, 13 STAN. L. REV. at 576. As explained by the
Alabama Supreme Court in Storey v. State, 71 Ala. 329, 338-41 (1882):
[T]he law is too tender of the public peace and too
careful of the lives of the subjects to "su ffer, with
impunity, any crime to be prevented by death, un
less the same, if committed, would also be punished
by death. ". . . The reason is that the preservation of
human life is of more importance than the protection
of property. . . . The ru le ,. . better comports with the
public tranquility and the peace of society. The
establishment of any other would lead to disorderly
breaches of the peace of an aggravated nature, and
therefore tend greatly to cheapen human life.
And as the California Supreme Court recently stated in People v.
[Footnote cont'd on next page]
-45-
of deadly force to protect mere property interests. Surely the state has
at least as great, and in all likelihood a much greater, interest in
preventing a crime than in apprehending the criminal. Yet we do not
allow the use of deadly force in such circumstances except when
reasonably necessary to the protection of innocent human life and bodily
safety.
Had Freddie Lee Berry been an adult on January 8, 1972, and
had he not died that night, he could have been prosecuted for third-
degree burglary and, upon conviction, subjected to a permissible sentence
of three to 10 years in prison (TENN. CODE ANN. §39-904)--but that
only after he had been afforded all of the procedural protections imposed
by our constitutional system of criminal justice (see note 28, supra).
As the district court noted: "Death has not been the punishment for
burglary in Tennessee under any circumstances, either before or since
Furman v. Georgia, 408 U. S. 238 (1972). The maxiznum punishment
would be ten years unless armed in which case it would be fifteen. "
43/ [Cont'dJ
Caballos, 526 P. 2d 241, 246 (1974), in refusing to approve the
use of deadly force to prevent a burglary:
Where the character and manner of
the burglary do not reasonably create a
fear of great bodily harm, there is no
cause for exaction of human life [cita
tions omitted]. The character and manner
of the burglary could not reasonably create
such a fear unless the burglary threatened,
or was reasonably believed to threaten,
death or serious bodily harm.
-46-
[A. 250 (Mem.Op. 15)]. As it was, Freddie Lee Berry, along
with over one-half of those arrested for burglary in Memphis (see
note 15, supra), was a juvenile; and the most punishment he would
have received, had he lived, would have been incarceration in a
juvenile institution until his eighteenth birthday (see note 6, supra)--
but, again, not until after he was accorded a host of procedural
protections (see note 28, supra) and, even then, not for the purpose
U/
of retribution but solely for the purpose of rehabilitation. Instead,
he died in a Memphis drainage ditch, the victim of "the ultimate
A juvenile or "child" in Tennessee is any person less than 18
years of age. TENN. COPE ANN. «37-202(D. Children do not
commit "crim es"; their wrongful acts, if the equivalent of adult
crim es, are designated "delinquent ac ts ." I^. , ^37-202(3). Juveniles
who commit delinquent acts may be tried and punished as adults only
i f they are 16 or more years of age (15 years for murder, rape,
robbery with a deadly weapon or kidnapping), and then only after a
juvenile court hearing and determination that "the child is not amenable
to treatment or rehabilitation as a juvenile through available fac ili
t ie s ," that there "are reasonable grounds to believe" that he committed
the act charged, that he is not commitable to a mental institution,
and that "the interests of the community require that the child be placed
under legal restraint or discipline. " I^ . , §37-234. Unless treated as an
adult following the procedural requirements set forth above, an ad
judication of delinquency "is not a conviction of crime and does not impose
any civ il disability ordinarily resulting from a conviction or operate to
disqualify the child in any civ il service application or appointment."
Id . , §37-233. Delinquent children may not be committed to institu
tions "prim arily for the execution of sentences of persons convicted
of a crime. " The purpose of the juvenile justice system in
Tennessee, therefore, is, "consistent with the protection of the
public interest, to remove from children committing delinquent acts
the taint of crim inality and the consequences of criminal behavior
and to substitute therefor a program of treatment, training and re
habilitation. " Id ., §37-201(2).
-47-
force in the police arsena l.'' What did we kill him for?
Plainly we did not k ill Freddie Lee Berry for the offense
he committed. Nor did he die for his flight from the police
46/
Freddie Lee Berry was killed by a pellet fired from a 12-guage
shotgun loaded with 00 buckshot. Each shell contains nine 'TDuckshot "
each the size of a .32 caliber bullet. This shotgun's "fire power
when fully loaded compares favorably with five .32 caliber revo lve rs ."
[A. 308(10A at 64)]. The Memphis Police Department's Firearms
Manual further states [A. 311 (Ex. lOA at 67)]:
Shotguns are the ultimate force in the police
arsenal and the final stage in the escalation
of the use of force in police actions. There
fore, the use of these firearm s should be
limited as a final action after all other means
have been exhausted, and no other alternative
is available to the police.
W ^ 9 A L l PROCEEDINGS 187 (1931) (Professor M ikell):
It has been said, "Why should not this man be
shot down, the man who is running away with
an automobile? Why not kill him if you cannot
arrest h im ?" We answer: because, assuming
that the man is making no resistance to the of
ficer, he does not deserve death. . .Maybe I
ask what we are killing him for when he steals
an automobile and runs off with it? A re we
killing him for stealing the automobile? If
we catch him and try him, we throw every
protection around him. We say he cannot be
tried until 12 men of the grand jury indict
him and then he cannot be convicted until 12
men of the petit jury have proved him guilty
beyond a reasonable doubt, and then when we
have done all that, what do we do to him?
Put him before a policeman and have a police
man shoot him? Of course not. We give him
three years in a penitentiary. It cannot be
that we allow the officer to kill him because
(Footnote cont'd on next page]
-48-
officers, for Tennessee does not even make flight from arrest a
serious offense, i f indeed it is a crim e. See R. PERKINS,
CRIMINAL LAW 496 (2d ed. 1969). And, as we show in the
following two subsections, defendants' assertions that his death
was required for its deterrent value, or because he was conclusive
ly presumed to have killed or injured someone else, are manifestly
inadequate answers. But the point here, simply, is that parroting
the common-law rule does not provide the answer, either. Compari
son of the rule's original premises and purposes with those of
our modern criminal justice system should be enough to consign
W [Coni'd ]
he stole the automobile, because the
statute provides only three years in a
penitentiary for that. Is it then for
fleeing? And again I insist it is not a
question of resistence of the officer. Is
it for fleeing that we kill him? Fleeing
from arrest is also a common law offense
punishable by a light penalty. A penalty
much less than that of stealing an auto
mobile. If we are not kilbng him for
stealing the automobile and not killing
him for fleeing, what are we killing him
for?
W. note 46, supra. We have found no Tennessee decision
or statute making flight from arrest a crime per £e, but MEMPHIS
CITY CODE §30-15 makes it "unlawful" for any person "to escape
from. . .any officer or member of the police fo rc e ." Violation
of this section, which prescribes no penalty, is a maximum fine
of $50. MEMPHIS CITY CODE §1-8.
-49-
the rule to its place in the ancient history which produced it.
As Justice Holmes once wrote;
It is revolting to have no better reason for a
rule of law than that so it was laid down in
the time of Henry IV. It is still more re
volting if the grounds upon which it was laid
down have vanished long since, and the rule
simply persists from blind imitation of the
past.
Holmes, T he Path of the Law, 10 HARV. L. REV. 457, 469 (1909).
It is significant, therefore, that such diverse authorities
as the President's Commission on Law Enforcement and Admin-
istration of Justice, the National Commission on Reform of the
48/ CRIME COMM'N REPORT, supra (Ex. 53). The Com
mission urged [A. 570 (Ex. 53 at 119]T^mphasis in original)];
A comprehensive regulation should be
formulated by every chief administrator to
reflect the basic policy that firearm s may
be used only when the officer believes his
life or the life of another is in imminent
danger, or when other reasonable means
of apprehension have failed to prevent the
escape of a felony suspect whom the officer
believes presents a serious danger to others.
See also PRESIDENT'S COMM'N ON LAW ENFORCEMENT AND
ADMINISTRATION OF JUSTICE, TASK FORCE REPORT; THE
POLICE 189 (1967) (Ex. 54). Former Chief Lux was aware of
these Commission recommendations, but he rejected them then
and would reject them now, [A. 130-38(Tr. 201-09)].
-50-
49/ 50/
Federal Criminal Laws, the American Bar Association"^ the
American Law Institute, and numerous commentators whose
49/ NATIONAL COMM'N ON REFORM OF FED. CRIM. LAWS
1 WORKING PAPERS 268-69 (1970) (proposing "to proscribe the
use of deadly force against a person who clearly poses no harm
to life or physical safety of others."); id ., STUDY DRAFT OF A
NEW FED. CRIM. CODE §607(2)(d) (1970). This proposal is
consistent with the FBI's policy (see note 53, infra).
^ / ABA PROJECT ON STANDARDS FOR CRIMINAL JUSTICE,
STANDARDS RELATING TO THE URBAN POLICE FUNCTION 288-
89 (Tent. Draft, March 1972).
^ / MODEL PENAL CODE §3.07 (P .O .D . 1962). In pertinent
part, that section proscribes the use of deadly force in arresting
a felony suspect unless, in addition to the requirement that the use
of such force be necessary, either "(1) the crime for which the
arrest is made involved conduct including the use or threatened use
of deadly force; or (2) there is a substantial risk that the person
to be arrested w ill cause death or serious bodily harm if his ap
prehension is delayed." §3.,07 (2)(b)(iv). Professor Herbert Weschsler,
the A L I's Chief Reporter in the formulation of the Model Penal Code,
explained the principle ultimately incorporated into the Code;
The preservation of life has such moral
and ethical standing in our culture and society,
that the deliberate sacrifice of life merely for
the protection of property ought not to be sanc
tioned by the law.
35 A L I PROCEEDINGS 285-86 (1958). Hence, the Model Penal
Code provision "derives from the basic value judgment that there
can be no justification for killing unless it is necessarily done in
the protection of l i fe . " Comment, The Use of Deadly Force in the
Protection of Property Under the Model Penal Code, 59 COLUM L
REV. 1212, 1222 (1959). "
•51-
writings span the past 50 years, eschew the common-law rule in favor
of strict procedures designed to limit the use of deadly force by
police officers to those circumstances where the use of such force
is essential to the protection of human life and bodily security.
It is also of great significance that the life/property distinc-
M/
tion is hewed to by the Federal Bureau of Investigation, several
52/ W. PROSSER, LAW OF TORTS 134 (4th ed. 1971); Tsimbinos,
The Justified Use of Deadly Force. 4 GRIM. L. BULL. 3, 15-20
McDcmald, Use of Force by Police to Effect Lawful A rrest,
9 GRIM. L .Q . 435 ̂ 351-52 (1967); Greenstone, Liability of Police
Officers for Misuse of Their Weapons, 16 G LEVE.-M AR. L.
400-05 (1967); Moreland, The Use of Force in Effecting or
Resisting A rre s t, 33 NEB. L. REV. 408 [1954); G rem eirwherT
Can a Policeniah Use His Gun?, 40 J. GRIM. L .C . & P.57~7T6,
759-60 (1950); Perkins, The Law of A rres t, 25 IOWA L. REV. 201
279-80 (1940); Pearson, The Right to K ill in Making A rre sts, 28
MICH. L . REV. 957, 974-76 (1930); Bohlen & Schulman, Arrest
With and Without a Warrant, 75 U. PA . L. REV. 485, 494‘̂ 0 4 ~ (’l927);
Note, Justification: The Impact of the Model Penal Code on Statutory ’
Reform", 75 COLUM. L . REV. 914, 949-53, 961 (1975); C/hhmeht;
Force in Arizona, supra note 39; Note, Justifiable Use of Deadly
Force by the Police: A Statutory Survey, 12 W'M. & M ^ T X 7 ~ R E V .
67, 85 (1970); Note" The Appropriateness of Deadly Force, 15 HOW.
L .J . 306, 312 (1969); Note, Use of Force, supra note 39/ 13 STAN.
L. REV. at 582-85; Note, The Civil Liability of Peace O fficers for
Wounding or K illing, 28 U. CIN. L . REV. 488, 494-95 (1959); NoFe,
The Use of Deadly Force in the P rotection of Property Under the
Model Penal Code, 59 CDLUM. L. REV. l2r?7~l2l7-26, (T"959Ty~Note
Legalized Murder of a Fleeing Felon, 15 VA. L. REV. 582 (1929).
53/ See U.S. Department of Justice, Prevention and Control of
Mobs and Riots 89-91 (1967) (quoted in Morgan v. Rhodes, 456 F.
^d 608, 616 (6th Cir. 1972), rev'd on other grounds sub nom.
Gilligan v. Morgan, 413 U. S. (1973))/ ”A basic rule in police fir e
arms training is that a firearm is used only in self-defense or to
protect the lives of others.” A Memphis FBI agent, fam iliar with
FBI firearm s training procedures, testified below that agents are
[Footnote cont'd on next page]
-52-
states that have seriously reconsidered the question, and a very
large number of state and local law enforcement agencies. Thus,
when Memphis officials formulated the January 20, 1972 deadly-
force policy, they considered (and rejected) the deadly force policies
in effect in Charlotte (Ex. 27A) and Durham (Ex. 27J), North
Carolina; Oakland (Ex. 27B) and San Jose (Ex. 27F), California;
Dallas, Texas (Ex. 27C); Phoenix, Arizona (Ex. 27G); and New
Haven, Connecticut (Ex. 271); and also the provisions of the Model
Penal Code (see note 51, supra) which had been adopted by some
of the departments--all of which restrict the use of deadly force
to self-defense and defense of others or to the arrest of suspects
engaged in inherently violent felonies. The record also reflects
that other police departments, including those in Knoxville, Tennessee
(Ex. 28), Kansas City, Missouri (Ex. 29) and Boston, Massachusetts
53/ [Cont'd ]
"trained to use firearm s only in self-defense or to safeguard the
lives of other persons." [A, 557 (Ex. 471 at 7). The FBI does
not even allow the use of deadly force to arrest persons on the "Ten
Most Wanted" list except in self-defense or defense of others.
[A . 558 (Ex. 471 at 29)]. Cf. Downs v. United States, 522 F. 2d
990 (6th Cir. 1975).
54/ Hawaii, Kentucky, Nebraska and Texas, for example, have
adopted the Model Penal Code approach (see note 51, supra), and do
not allow deadly force to arrest for non-violent felonie's^ HAWAII
REV. STAT. T it. 37 §3 .07(3)(1975 Supp.); KY. REV. STAT. ANN.
§503.90(2) (1975); NEB. REV. STAT. §28-839(3) (Supp. 1972); TEX.
PEN. CODE, art. 2, §9 .51(c) (1974).
-53-
(see Appendix B, in fra ). place sim ilar prohibitions on the use of
deadly force.
The judiciary has also begun recently to recognize that reason
has abandoned the common-law rule (see, e .g . , Sauls v. Hutto,
304 F.Supp. 234 (E .D . La. 1969); Commonwealth v. Chermansky,
242 A. 2d 237 (Pa. 1968)), although judges have been suggesting
for over a century that the rule should be interred. See, e .g . ,
Reneau v. State, 70 Tenn. 720, 721-22 (1879)(quoted in note 9,
supra); State v. Bryant, 65 N. C. 327, 328 (1871). In United
States V. Clark, 31 Fed. 710, 713 (C .C .E .D . Mich. 1887), Judge
(later Justice) Brown said of the common-law arrest privilege
that;
I doubt, however, whether this law would be
strictly applicable at the present day. Suppose,
for example, a person were arrested for
petit larceny, which is a felony at the common
law, might an officer under any circumstances
be justified in killing him? I think not. The
punishment is altogether too disproportioned
to the magnitude of the offense.
Only recently Chief Justice Burger echoed sim ilar sentiments;
Freeing either a tiger or a mouse in a
schoolroom is an illega l act, but no rational
55/ See also Uelman, Varieties of Police Policy; A Study of
Police Policy Regarding the Use of Deadly Foi-cFTn-Los Aneeles
County, 6 LOYOLA (L .A . ) L . REV. 1, 26-32 (T973Y~I^rce hT~
Arizona, supra note 39, 1973 L. & SOC. ORDER at 486'-87; Boston
Police Department Planning & Research Division, The Use of
Deadly Force by Boston Police Personnel 13-17 (Ma7T^“T9T4)
[A T "442-46 (Ex. 31 at 13-17)].
-54-
person would suggest that these two acts
should be punished in the same way. From
time to time judges have occasion to pass
on regulations governing police procedures.
I wonder what would be the judicial response
to a police order authorizing "shoot-to-kill”
with respect to every fugitive. 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 convicted k iller but
surely not for a car thief, a pick-pocket or
a shoplifter.
Bivens v. Six Unknown Named Agents, 403 U.S. 388, 419 (1971)
(dissenting opinion).
We therefore submit, "in common with all rational m inds,"
that the common-law deadly-force rule, insofar as it encompasses
fleeing property-crim e suspects such as Freddie Lee Berry, is
wholly unrelated to "the gravity and need. " This is not to suggest
that there is no state interest in apprehending and prosecuting
property-crime suspects. "The point is that such public interest
as exists does not justify taking the life of a petty thief simply be
cause his immediate capture cannot be accomplished in any other
w ay ." McDonald, Use of Force by Police to Effect Lawful A rrest,
9 GRIM. L .Q . 435, 452 (1967).
The original justifications for the death-dealing common-law
rule no longer exist; it is an anachronism. Though "[o]ne would
expect, upon an inquiry into the sources of the common-law rule,
to find a clear and compelling justification" for its existence, cf.
-55-
Moragne v. States Marine L ines, 398 U S, 375, 381 (1970), there
is no such justification for this "barbarous" ( ^ . ) rule, because
"the sole substantial basis for the rule at common law is a feature
of the early English law [ i . e . , all felonies punishable by death]
that did not survive into this century" or the last. Id. at 382.
2. Deterrence of C rim e. In addition to mere recitation
of Tennessee's adoption of the common-law rule as a justification
for Freddie Lee B erry 's death, defendants also assert "that one of
the principal purposes of Memphis' policy regarding use of deadly
force insofar as they attempt to justify the possible death of fle e
ing burglary suspects, is to deter criminal conduct." [A. 248(Mem.
Op. 13)]. The district court simply noted that this is defendants'
position, without analyzing its validity (and also without approving
it as a justification). In any event, defendants' position in this
regard is a naked assertion untenable in fact or logic, and void
in constitutional contemplation.
A ll of the City officials (Mayor Chandler, D irector Hubbard,
and form er Chiefs Lux and P rice ) who advanced crime deterrence
as a rationalization for shooting fleeing property-crime suspects
conceded that they had conducted no factual research attempting to
correlate police o fficers ' use of deadly force with changes in the
crime rate, and further, that there is no evidence supportive of
56/ D irector Hubbard testified that any such effort "would be. . .
an exercise in fu tility ." [A . 537 (Ex. 47 F at 29)].
-56-
the proposition. [A. 106, 137-38 (T r. 158, 208-09)]. D irector
Hubbard did say that he thought there was some evidence to the
effect that capital punishment is a crime deterrent, which he
construed as logically supporting the view that death in the streets
at the hands of police officers deters criminal conduct. [A. 106-08
(T r. 158-60)]. We need not debate the merits of the view that
capital punishment is a crime deterrent in order to point out that
this contention at once demonstrates both the absurdity and the un
constitutionality of shooting fleeing property-crime suspects for
the purpose of deterring criminal conduct.
We have shown above that had Freddie Lee Berry been arrest
ed, accorded all of the procedural safeguards guaranteed by the
Constitution, tried and convicted as an adult of third-degree burglary,
the greatest punishment he could have received would have been
a prison sentence of striking mildness in contrast to death.
Tennessee has decreed three to 10 years in prison, not death, as
the penalty for third-degree burglary, and while the state might
have legislated death as the punishment, it has not done so. If
the Memphis deadly-force policy is in fact being implemented to
deter property crime, then the City has deployed its police officers
"to take the law into their own hands and act as prosecutor, jury,
judge, and executioner" in plain violation of the Constitution.
Screws v. United States, 325 U.S. 91, 196 (1945). Such a purpose,
in short, is not a legitimate state goal under our constitutional
system.
-57-
Aside from its patent unconstitutionality, the crim e-deter
rence rationalization is demonstrably illog ica l. If the greater
certainty that, upon conviction, a prison sentence w ill be imposed
does not deter property crime, surely the erratic implementation
of the deadly-force arrest policy (see notes 66-67, in fra) can
have little, i f any, bearing on the property crime rate. The
City’s experience with the use of warning shots is instructive in
this regard. P r io r to 1969 the City authorized police officers to
use warning shots as an aid, and as a precondition to the use of
deadly force, in the apprehension of fleeing suspects. This
policy was abandoned in 1969 and warning shots were prohibited
[ see A . 320 (Ex. 13)] because analysis of the experience in Memphis
and elsewhere revealed that warning shots have no effect on flee
ing suspects, making them not worth the risk to innocent bystanders.
[A . 139-42(Tr. 220-224)]. As a San Francisco officia l put it; "For
every suspect who surrenders upon hearing warning shots, there
are others who flee that much fa s te r ." [Quoted in A, 447 (Ex. 31
at 30)], Most departments, like Memphis, now prohibit the use
of warning shots. The only conclusion that can be drawn, there
fore, is that not only does the threat of deadly force not deter
criminal conduct, it does not even deter flight from arrest.
57/ Defendants’ own conduct reveals that they do not really believe
there is any deterrent value in shooting property-crime suspects
[Footnote cont'd on next page]
-58-
The asserted crim e-deterrence justification, like the common-
law rule it seeks to support, is thus illogica l and contrary to fact
at best; at worst, it is an unconstitutional authorization for sum
mary execution.
3. The Presumption of V iolence. Finally we come to an
operational aspect of the City's deadly-force policy which, while
revealing defendants' uneasiness with their policy, is astonishingly
arbitrary; the conclusive presumption that fleeing property-crime
suspects have already committed a crime of violence against
persons. [A. 99 -102(Tr. 144-47); A. 544-45(Ex. 47G at 16-17)].
58/
^7/ [Cont'd ]
dô wn in the streets. Tennessee treats auto theft and grand larceny
as crimes equivalent to third-degree burglary; the punishment is
three to 10 years in prison. TENN. CODE ANN. §39-4204. (There
is no separate auto-theft statute.) Yet defendants have discontinu
ed the authorization to use deadly force to arrest auto-theft and
grand-larceny suspects. It is impossible to perceive a difference,
with respect to the effect on criminal conduct, between shooting
third-degree burglary suspects and shooting auto-theft and grand-
larceny suspects. The answer to this riddle, of course, is that
there is no such effect in either situation.
58/ Mayor Chandler suggested, but did not press, an argument
sim ilar to the presumption that a third-degree burglary suspect has
also committed a crime against persons, i . e . , that deadly force is
necessary to prevent such a suspect from committing more serious
crimes in the future. [A. 511 (Ex. 47 E at 14)]. He conceded that
the assumption implicit in this proposition is without a known factual
basis [A . 525(Ex. 47 E at 37)], and we do not read the record as
making a serious effort to justify the use of deadly force on this basis.
It would, in any event, be condemned as authorization for summary
execution (see p. 57, supra) for anticipated but unpredictable future
conduct. Our Constitution does not even permit persons to be a r
rested, let alone executed, on the basis of such flim sy speculation.
See, e .g . , Papachristou v. City of Jacksonville, 405 U.S. 156, 171
0^ 2).
-59-
It should be sufficient to observe that such presumption was plain
ly incorrect in its application to the facts of this case (see pp. 8-11,
supra), and the district court so found. [A . 248 (Mem. Op. 13)].
But not only was the presumption incorrect in this case, it is not
even generally true. D irector Hubbard conceded, for example,
that he had no idea as to the percentage of burglary suspects who
are found to be armed. [A. 116-17 (T r. 177-78)]. There is evidence
available, however, from which an informed judgment could have
been made. It is sufficient here to note that Appendix A at pages
la-7a, infra, reflects 91 incidents in which unarmed burglary suspects
were shot at by MPD officers (17 incidents resulted in death).
Thus, in well over one-half of the incidents involving police use
of deadly force against persons [~see A. 328-30 (Ex. 20)], the
suspects were not armed and presented no apparent threat of death
or serious bodily injury to police officers or other persons.
Defendants' irrebuttable presumption--imposed, perhaps,
because they have reservations about giving property a value
greater than life (see pp. 19-20, supra)- - is thus without a basis
in fact.
59/ It is noteworthy also that over one-half of the property-crime
suspects arrested during this period were juveniles (see note 15,
supra), a fact which further reduces the probability that crimes
of violence occur in connection with property crimes.
■60-
E. The Memphis Deadly-Force Policy, As It Authorized And
Resulted In The Death Of Plaintiff's Son, Violates The Due
Process And Equal Protection Clauses Of The Fourteenth
Amendment.
When the legal principles set forth above in parts A, B,
and C of this argument are applied to defendants' justifications dis
cussed in part D, supra, the inevitable conclusion is that the Memphis
deadly-force policy as applied to plaintiff's decedent is unconstitutional:
(1) under the Due Process Clause and Roe v. Wade, 410 U. S. 113
(1973), because it is not narrowly drawn and applied so as to serve
state interests sufficiently compelling to justify the extinction of Freddie
Lee Berry 's fundamental rights to life and to a trial; (2) also under the
Due Process Clause because it impinges upon fundamental rights
through utilization of an irrebuttable presumption that a fleeing property-
crime suspect has engaged in conduct endangering human life and bodily
security, which presumption is often, as it was here, contrary to fact;
(3) under the Equal Protection Clause because, as applied to the facts
of this case, because it does not serve, and is not tailored to serve, govern
mental interests sufficiently substantial to justify denial of decedent's
fundamental constitutional rights to life and to a trial; and (4) also
under the Equal Protection Clause because it is not rationally related
to legitimate state interests. We shall briefly discuss these conclusive
points seriatim.
1. As discussed in part A above, Freddie Lee Berry possessed
-61-
fundamental constitutional rights to life and to trial. Undoubtedly,
in some circumstances a criminal suspect, by his conduct, may be
deemed to have forfeited these fundamental rights because his actions
jeopardize state interests of overriding import. As in Roe v. Wade,
supra, there w ill be a ''point'' at which state interests w ill "become
sufficiently compelling" to justify abridgement of the rights at stake.
410 U. S. at 154. But this is not such a case.
In Roe the "compelling interests" recognized by the Court were
"the health of the pregnant woman" and "the potentiality of human life
[of the fetus]. " at 162. To sustain the extinguishment of Freddie
Lee B erry 's fundamental rights to life and to a trial, the City must
show that its deadly-force policy, as applied in this case, is supported
by governmental interests of a sim ilar overriding quality, i. e. , interests
that are at least in some way related to the protection of life and bodily
security. The City has plainly failed in its burden. Neither the common-
law rule (part D l, supra) nor the crim e-deterrence assertion (part D2,
supra) serve any interest of a sufficiently substantial quality. And while
the conclusive presumption that a property-crime suspect has also en
gaged in violence against persons is related to the protection of life and
bodily safety, it does so with a sweep that is much too broad and which
was contrary to the facts of this case, as it is frequently contrary to
fact (part D3, supra). This presumption is clearly not "narrowly drawn
-62-
to express only the legitimate state interests at stake. ” Id. at 155.
It follows that the City's policy employing deadly force to
arrest property-crim e suspects and Freddie Lee B erry 's death contra
vene the Due Process Clause of the Fourteenth Amendment. It is not
an adequate response to say, as did the district court, that this is a
judgment for the Tennessee legislature. [A. 253 (Mem. Op. 18)]. If the
constitutional result required by the foregoing analysis comes about
through a balancing process, it is nonetheless true that the fulcrum is
set in place by the Constitution of the United States. And it is equally
true that the City's asserted interests do not balance very well against
Freddie Lee B erry 's fundamental constitutional rights to life and to a
trial. That balance is not upset by the contention that otherwise it would
"recogn ize a felon's constitutional right to escape. . . . " [A. 252(Mem. Op.
17)]. The suppression of illegally-seized evidence, or the prohibition
against extracting confessions with cattle prods, or the reversal of con
victions because the right to counsel was denied, do not result from
holdings that criminals have a constitutional right to go free. Rather,
they result simply from the mandate of a Constitution framed to express
the belief that certain things have a higher value than governmental ex
pediency. The district court should have entered the declaratory
judgment that plaintiff prayed for,
2. The City's policy also violates the Due Process Clause by
virtue of its underlying conclusive presumption that a fleeing property-
-63-
crime suspect has subjected persons to actual or threatened death or
serious bodily injury (see part D3, supra). That presumption, as
we have demonstrated, "is not necessarily or universally true in fa c t ,”
Vlandis v. Kline, 412 U. S. 441, 452 (1973); the presumption "explicitly
disdains present realities in deference to past fo rm a lities ,” Stanley
V. Illinois, 405 U. S. 645, 656-67 (1972); it "applies even when the. . .
evidence. . . might be wholly to the contrary,” Cleveland Bd. of Educ.
V. LaFleur, 414 U. S. 632, 644 (1974); and, indeed, the presumption is
"often contrary to fa c t ,” as it was in this case. United States Dept, of
Agriculture v. M urry, 413 U. S. 508,514 (1973). See also Weinberger
V. Sain, 422 U. S. 749, 771-72 (1975); ]^ 1 v. Burs on, 402 U. S. 535
(1971). These cases hold that such "unwarranted conclusive
presumptions” violate the Due Process Clause. The presumption employed
by the City in this case is plainly unnecessary, and the City
is called on to sacrifice no permissible
end when it is required to reach its ob
jective by a reasonable and just proce
dure adequate to safeguard rights of the
individual which concededly the Constitu
tional protects.
Skinner v. Oklahoma, 316 U. S. 535, 545 (1942)(Stone, C. J. , concurring).
Since the City’s policy embodied a sim ilar presumption, it--
a r\ '
and its result in this case--is sim ilarly unconstitutional. —
60/ As previously discussed (part B2, supra), the function of the
irrebuttable presumption doctrine is to require the state, when fundamental
interests are involved, to proceed by individualized determination rather
[Footnote cont'd on next page]
-64-
3. Because the Memphis deadly-force policy impinged upon
the fundamental constitutional rights of plaintiff's decedent, the Equal
Protection Clause also subjects the policy to "stric t scrutiny," Skinner
V. Oklahoma, supra, 316 U. S. at 541, and invalidates it except insofar
as it is "tailored to serve a substantial governmental interest. " Police
Dept, of the City of Chicago v. M osley, 408 U. S. 92, 99 (1972). See
also, e. g. , Dunn v. Blumstein, 405 U. S. 330 (1972); Shapiro v.
Thompson, 394 U. S. 618 (1969). As shown above, the City's policy is
not supported by compelling state interests to the extent it authorized and
resulted in the death of plaintiff's decedent. Neither the City's interests
in the protection of property and the apprehension of criminal suspects,
nor its asserted interest in using the policy to deter criminal conduct.
60/ [Cont'd]
tFan by conclusive generalization. The usual remedy for such a due
process violation is to impose upon the state the duty to conduct a
hearing such that the determinative facts may be ascertained. Such a
"hearing,"in a formal sense, is not a practicable remedy in this case,
fo r we recognize the need for the exercise of immediate judgment by
the officer on the beat. The point of the irrebuttable presumption cases
is not thereby lost, however, because the remedial principle of these
cases can be easily served by imposing upon the City and its police
officers the duty to pursue a deadly-force policy which makes the
propriety of using such force turn on the individualized facts of each
case as reasonably determined by the officer at the scene. M oreover,
some of the conclusive presumption decisions expressly sanction, in
lieu of an individual hearing, a remedy which narrows the defendants'
harmful policy by employing "alternative administrative means, which
do not so broadly infringe upon basic constitutional liberty, in support
of their legitimate goals. " Cleveland Bd. of Educ. v. LaEleur, supra,
414 U. S. at 647 n. 13(suggesting as an appropriate alternative to a
-school board mandatory maternity leave policy, a policy limited to "the
last few weeks of pregnancy"). See also Vlandis v. Kline, supra,
412 U. S. at 452 (holding that a state non-resident tuition policy con
taining a durational residency requirement is an acceptable alternative
to an unconstituonal permanent and irrebuttable presumption of non
residency).
-65-
are sufficient to "satisfy the appellees' heavy burden of justification,
and insure that the State, in pursuing its asserted objectives, has
chosen means that do not unnecessarily burden constitutionally pro
tected in terests." Memorial Hospital v. Maricopa County, 415 U. S.
250, 263 (1974). The only interest asserted by the City of sufficient
substance to approach "compellingness" is its legitimate concern for
the protection of human life and bodily security. But that interest
simply does not exist in connection with fleeing property-crime suspects
like Freddie Lee Berry, and the City's conclusive presumption to the
contrary is much too "overinclusive" to sustain the policy. Id. at 264.
The irrebuttable presumption is " 'fa r greater than is essential to the
furtherance of [a substantial governmental] interest. ' " Police Dept, of
City of Chicago v. M osley, supra, 408 U. S. at 102 (brackets in
original). Freddie Lee Berry was killed in conformity with a policy
that thus violates the Equal Protection Clause of the Fourteenth
Amendment.
4. Finally, it is apparent that the City's deadly-force policy as
applied to plaintiff's son does not manifest the minimum "rational
relationship to a legitimate state purpose" necessary to sustain it under
the Equal Protection Clause's less stringent demands applicable where
fundamental rights are not at stake. Weber v. Aetna Casualty & Surety
Co. , 406 U. S. 164, 172 (1972). See also United States Dept, of Agricu l
ture v. Moreno, 413 U. S. 528 (1973); Eisenstadt v. Baird, 405 U. S.
-66-
438 (1972); Reed v. Reed, 404 U. S. 71 (1971). The arbitrary and
illogical nature of the common-law rule is not saved by the City's
asserted interests in preventing and deterring crime or in apprehending
criminal suspects. These interests, to the extent they are legitimate,
are not served by a policy which "simply does not operate so as
rationally to further" the claimed purposes. United States Dept, of
Agriculture v. Moreno, supra, 413 U. S. at 537, Moreover, the crime-
deterrence rationale is impermissible (see part B2, supra); and it is,
in any event, wholly ineffective and is better served by the state's
criminal laws. Weber v. Aetna Casualty fc Surety Co. , supra,
406 U. S, at 175. To the extent that the policy's pux-pose is related
to the apprehension of suspects, it is impermissibly "underinclusive. "
Eisenstadt v. Baird, supra, 405 U, S. at 454 . This is so because the
policy excludes from its reach, for example, persons suspected of
grand larceny and auto-theft, crimes sim ilar in kind and in prescribed
punishment to third-degree burglary, which the state and the City treat
alike for all other criminal justice purposes (see note 57, supra). In
short, to the extent the City's policy authorized and resulted in deadly
force against plaintiff's son, it does not rationally promote any legitimate
state interest and is, therefore, unconstitutional even under this less
stringent equal protection analysis.
For each and all of the foregoing reasons, the district court
erred in denying plaintiff the declaratory judgment she requested.
-67-
THE USE OF DEADLY FORCE TO APPREHEND PLA IN T IF F S
SON CONSTITUTED AN UNREASONABLE SEIZURE VIOLATIVE OF
THE FOURTH AMENDMENT.
II.
The district court considered p la in tiffs Fourth Amendment claim
"m er it le s s ,” apparently because ” [n]o federal case cited by plaintiff
has construed this amendment to apply to this type of situation." [A. 257
(Mem. Op. 22)]. The court also stated that "the o fficers had a right to
arrest Berry" and that the use of deadly force to arrest is not "per se
unreasonable and unconstitutional." Neither of these latter two
propositions is disputed by plaintiff, and we concede that we have found
no case testing the use of deadly force to arrest fleeing property-crime
suspects against the Fourth Amendment. But if the district court considered
the Fourth Amendment inapplicable, it plainly misapprehended the law; and,
consequently, it erred in failing to invoke the Amendment's "reasonableness"
mandate in assessing the constitutionality of the "se izu re" of p la in tiffs son
by deadly force as authorized by the City's policy. Had the court below
pursued and applied the proper legal standard, it would have been impelled
to the conclusion that the particular use of deadly force sanctioned in this
case is unreasonable and unconstitutional.
While this case does not present the more fam iliar Fourth Amend
ment questions dealing with probable cause to search or to arrest, it is
well settled that the Amendment applies with equal force to the manner of
68 -
making an arrest. The use of deadly force to apprehend fleeing property-
crime suspects quite clearly implicates the Fourth Amendment because
any form of physical apprehension of a suspect is a "seizu re” within the
meaning of the Amendment. See, e. g. , Cupp v. Murphy, 412 U.S. 291,
294 (1973); Davis v. M ississippi, 394 U.S. 721, 726-27 (1969); Sibron v.
New York, 392 U.S. 40, 67 (1988); Terry v. Ohio 392 U.S. 1, 16-20
(1968)'; Henry v. United States, 361 U.S. 98, 100-01 (1959); Giordenello v.
United States, 357 U.S. 480, 485-86 (1958), and cases cited. Since "[t]he
Fourth Amendment applies to all seizures of the person," it therefore
"requ ires that the seizure be 'reasonable. " ' United States v. Brignoni-
Ponce, 422 U. S. 873, 878 (1975),
Not only does the Amendment require that a "seizu re" be
"reasonable" in the sense that there be sufficient grounds to make it, but
also the manner of making the seizure must be reasonable;
The manner in which the seizure
and search were conducted is, of course,
as vital a part of the inquiry as whether
they were warranted at all. The Fourth
Amendment proceeds as much by lim ita
tions upon the scope of governmental
action as by imposing preconditions upon
its initiation.
Terry v. Ohio, supra, 392 U.S. at 28-29, Thus, for example, in
Schmerber v, California, 384 U.S. 757 (1966), the Court considered the
constitutionality of withdrawing a blood sample without consent. The
Court's analysis began with an assessment of the role o f the Fourth
- 69
Amendment in such a case:
The Fourth Amendment's proper function is
to constrain, not against all intrusions as such,
but against intrusions which are not justified in
the circumstances, or which are made in an im
proper manner. In other words, the questions
we must decide in this case are whether the
police were justified in requiring petitioner to
submit to the blood test, and whether the means
and procedures employed in taking his blood re
spected relevant Fourth Amendment standards
of reasonableness.
Id. at 768 (emphasis added). In applying this standard to the case before
it, the Schmerber Court considered both (a) the reasonableness of the
method chosen, in general; and (b) the reasonableness of the manner in
which the seizure was made in the specific case. Id. at 771. The Court
thereupon concluded that, on the facts before it, the blood test was
reasonable; but the Court admonished (id. at 772);
It bears repeating, however, that we reach
this judgment only on the facts of the present
record. The integrity of an individual's person
is a cherished value of our society. That we
today hold that the Constitution does not forbid
the States minor intrusions into an individual's
body under stringently limited conditions in no
way indicates that it permits more substantial
intrusions, or intrusions under other conditions.
The reasonableness of the manner in which a seizure was effected
was also scrutinized under the Fourth Amendment in Ker v. California,
374 U. S. 23 (1963). In that case, the Court examined petitioners' arrest
"to determine whether, notwithstanding its legality under state law, the
- 70
t '̂tethod of entering the home may offend federal constitutional standards
of reasonableness and therefore vitiate the legality of an accompanying
search,” ^ at 38 (emphasis added). The particular police "method”
at issue in Ker was breaking into a dwelling, for the purpose of making
an arrest, without prior announcement of the o fficers ' identity and pur
pose, Eight of the Justices found the requirements of the Fourth Amend
ment applicable. They split evenly, four-to-four, over whether those
requirements were satisfied. Justice Harlan, who did not agree that the
States are subject to the Fourth Amendment's reasonableness requirement,
supplied the fifth vote necessary for affirmance on the ground that
"Fourteenth Amendment concepts of fundamental fairness” were satisfied,
at 46,
Another illustration of the principle that the Fourth Amendment
proscribes seizures made in an unreasonable manner is the line of cases
dealing with the scope of subpoenas. These cases establish that a sub
poena "w ill be disallowed if it is 'fa r too sweeping in its terms to be
regarded as reasonable' under the Fourth Amendment,” United States v,
Calandra, 414 U, S. 338, 346 (1974),
The same principle has frequently been applied in border search
cases. As summarized in Henderson v. United States, 390 F, 2d 805,
61/ See also United States v, Dionisio, 410 U, S, 1, 11-12 (1973);
United States v, Morton Salt Co, , 338 U.S. 632, 552-53 (1950); Oklahoma
Press Pub, Co, v, Walling, 327 U, S. 186, 208-09 (1946); United States v.
Bausch & Lomb Optical Co, , 321 U, S. 707, 727 (1944); HafFv Henkel
201 U, S, 43, 75-77 (1906), ------ ---------^
- 71 -
806 (9th Cir, 1967): "W e have repeatedly said that a border search can
be undertaken without probable cause, but we have also held that even in
such cases, the officers must act reasonably." And: "O ffic ial action must
meet the standard of reasonableness. The scope of the particular intrusion,
the manner of its conduct, and the justification for initiating it must be
considered." United States v. Guadalupe-Garza, 421 F. 2d 876, 878 (9th
Cir. 1970). For applications of the principle, generally Huguez v.
United States, 406 F. 2d 366, 378-79 (9th Cir. 1968)(a suspected smuggler
"was handcuffed, thrown on the table, pressured flat down and pulled by
the handcuffs until the metal bit into his flesh and the skin was peeled,
resulting in cuts on his wrists. In these circumstances, the 'medical
examination ' degenerated into a 'force process,' so aptly termed by
Agent Gates, which cannot be condoned, justified, or upheld as a consti
tutional border search."); United States v. Guadalupe-Garza, supra
(oral emetics administered to handcuffed suspect "two or three times";
search held unreasonable); United States v. Johnson, 425 F. 2d 630 (9th
Cir. 1970), cert, dismissed pursuant to Rule 60, 404 U.S. 802 (1971)
(strip search held unreasonable); Henderson v. United States, supra
(body cavity search held unreasonable). 62/
These examples show that the Fourth Amendment forbids any
62/ See also United States vT Harrison, 434 F. 2d 1328 (D. C. Cir. 1970);
United States ex rel. Manduchi v. T racy , 350 F. 2d 658 (3d Cir. ), cert.
denied, 382 U.S. 943 (1965); 'Taglavore v. United States, 291 F. 2d 262
(9th Cir. 1961)(alternative ground); United States ex rel. Ametrane v.
G a ^ , 276 F. Supp. 555 (E.D. Pa. 1957), aff'd per curiam, 401 F. 2d 765
(3d Cir. 1968). ---------------------
- 72 -
seizure (or search) to be made in an unreasonable manner. It was
therefore the district court's duty, notwithstanding the absence of
dispositive precedent, to determine for this case whether the use of
deadly force, authorized and employed against plaintiff's son, was a
reasonable seizure under the Fourth Amendment, For the reasons de
tailed in parts ID and IE, supra, we submit that it is grossly unreasonable
to allow a police o fficer to shoot a person fleeing from the scene of a
property crime and posing no threat to the physical security of any person.
Such use of deadly force is the most intrusive and destructive possible
method or manner of making a seizure of a person. While it might be
deemed reasonable to use deadly force to apprehend a suspect who, either
by the nature o f his crime or by his conduct in fleeing arrest, poses a
realistic threat of death or serious bodily injury to the police officer or
other persons, it was, as we have seen, manifestly unreasonable to kill
Freddie Lee Berry, who presented no such threat and who a court, after
according him the fullest possible panoply of procedural protections,
would have subjected to only a relatively mild prison sentence at most.
Plaintiff's son was killed in violation of the Fourth Amendment 63/;
the district court should have so declared.
63/ The Fourth Amendment, like due process principles (see note 36,
supra), also requires specific rules to govern and confine the use of
deadly force. See generally Amsterdam, Perspectives on the Fourth
Amendment, 58 MINN. L . REV, 349, 414-38 (1974). There were no
such regulations in effect at the time plaintiff's son was killed (see note
10, supra, and accompanying text).
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III.
THE CITY'S DEADLY-FORCE POLICY AUTHORIZES,
AND HERE RESULTED IN, THE INFLICTION OF
CRUEL AND UNUSUAL PUNISHMENT.
A. In Cunningham V. Ellington, 323 F. Supp. 1072, 1075 (W. D.
Tenn. 1971 )(three-judge court), the court, in considering the facial
validity of TENN. CODE ANN. §40-808, held that the Eighth Amendment
was inapplicable because the deadly force authorized by the statute to appre
hend suspects is not "punishment” within the contemplation of the Amend
ment. Contra, United States v. Clark, 31 Fed. 710, 713 (C, C. E, D.
Mich. 1887)(dictum). The district court rejected out of hand p la in tiffs
Eighth Amendment claim in this case, relying entirely on Cunningham.
[A. 257(Mem. Op.22)]. The holding of the district court was error for two
independent reasons which it declined to discuss; (1) the Cunningham
court's conclusion that deadly force is not "punishment," though not
binding on either the district court or tliis Court, — is incorrect; (2)
the record here shows that deadly force i^ implemented in Memphis for
punishment purposes, making Cunningham, which was not decided on an
evidentiary record revealing the purposes of the common-law statute,
inapposite even as a precedent.
1. The recognition in Cunningham that TENN. CODE ANN. §40-
, Farley V. Farley, 481 F. 2d 1009, 1012 (3d Cir. 1973);
United States v. Crosson, 462 F. 2d 96, 102 (9th Cir. 1972); IB MOORE'S
FEDERAL PRACTICE HO. 402[1] at pp. 61-62 & n. 29 (2d ed. 1974).
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808 is merely an adoption of the common-law rule should have been
sufficient, without further analysis, to show that the use of deadly
force is "punishment," For, as discussed at pages 43-44, supra,
punishment was a principal purpose of the common-law rule, which was
seen as a mere acceleration of the penalty the suspect had already in
curred by his conduct. That the use of deadly force against criminal
suspects constitutes punishment is further demonstrated by both the
history and the judicial application of the Eighth Amendment. It is clear
from the debates surrounding adoption of the Constitution that the Cruel
and Unusual Punishments Clause was intended not solely to restrict post
tria l penalties, but also to impose lim its on the pre-conviction treatment
of suspects. ^ 3 ELLIOT'S DEBATES 447-52 (2d ed. 1876), quoted in
Furman v. Georgia, 408 U. S. 238, 259-62 & nn. 2 & 3 (1972)(Brennan,
J. , concurring): at 320-21 (Marshall, J. , concurring). The courts
have accordingly held the Eight Amendment cruel-and-unusual-punish-
ment prohibitions applicable to the pre-tria l treatment of suspects even
though such treatment is not intended as "punishment" in the post-trial
sense. And this Court so held in Cox v. Turley, 506 F. 2d 1347, 1352
See Howell v. Cataldi, 464 F, 2d 272 (3d Cir. 1972); Wilson v
Beame, 380 F. Supp. 1232, 1243 (S. D. N. Y. 1974); Rhem v. McGrath
326 F. Supp. 681, 690 (S.D.N. Y. 1971)(Mansfield, J. ); United States ex
rel. von Wolfendorf v. Johnston, 317 F. Supp. 66, 68 (S. D. N. Y, 1970)
(Frankel, J. ); Ex parte Pickens. 101 F. Supp. 285, 288 (D. Alas T err
1951); In re Birdsong, 39 Fed. 599 (S. D. Ga. 1889). The use of deadly’
force to make an arrest clearly encompasses a usual definition of
"punishment” as including "severe, rough, or disastrous treatment "
WEBSTER'S THIRD INTERNATIONAL DICTIONARY (UNABRIDGED)
1843 (1961).
- 75 -
(6th Cir. 1974), a case concerned with the pre-tria l confinement of
a juvenile. It is therefore difficult to conceive how shooting down
p la in tiffs son falls into a category o f treatment that is not punishment;
for he was shot with the specific intent to kill him (see text at note 7,
supra), solely because he committed an offense against property and
was fleeing, not because of a need to protect the o fficers or any person
from any perceived or perceivable threat of physical violence.
2. In any event, it is not necessary to dwell further on the
validity of the Cunningham conclusion with respect to the nature of the
deadly force authorized by the state’ s adoption of the common-law rule,
because the record in this case renders Cunningham inapposite. The
Supreme Court has identified several factors as being relevant to the
inquiry whether a particular treatment constitutes "punishment";
Whether the sanction involves an affirm
ative disability or restraint, whether it has
historically been regarded as a punishment,
whether it comes into play only on finding of
scienter, whether its operation w ill promote
the traditional aims of punishment--retribution
and deterrence, whether the behavior to which
it applies is already a crime, whether an alter
native purpose to which it may rationally be
connected is assignable for it, and whether it
appears excessive in relation to the alternative
purpose assigned are all relevant to the inquiry,
and may often point in differing directions,
Kennedy v. Mendoza-Martinez, 372 U. S. 144, 138-39 (1933). It cannot
be doubted, under this analysis, that the Memphis deadly-force policy
as applied to Freddie Lee Berry is "punishment" within the contemplation
76
of the Eighth Amendment. The policy clearly "involve^ an affirmative
disability or restraint” and its common-law ancestor, which i<= asserted
to support it today, had a definite penal purpose. But the most deter
minative factor is that one of the policy's avowed principal purpose‘s,
though an unconstitutional one (see pp.56-57, supra), is to deter criminal
conduct. Given that principal purpose from the mouths of the City's
present and past policy-makers (see note 18, supra), the use of deadly
force against property-crim e suspects such as Freddie Lee Berry
imposes a "punishment” within the purview of the Eighth Amendment.
B, The question remains whether such punishment is "cruel and
unusual” under the Amendment. The prevailing opinions in Furman v.
Gear gia, 408 U. S. 238 (1972), point to several relevant considerations.
The three factors that convinced a majority of the Supreme Court to
invalidate the death penalties challenged in Furman are (1) the danger of
arbitrary application of death, ^ at 245, 249, 256-57 (Douglas, J. ,
concurring): i_̂ . at 274-77, 293-95 (Brennan, J. , concurring); id. at
309-10 (Stewart, J. , concurring);^ , at 313 (White, J. , concurring);
j^ . at 333-6o (Marshall, J. , concurring); (2) the severity of the penalty,
which was seen as so extreme as to be degrading to man's dignity, id.
at 271, 291 (Brennan, J. , concurring): and (3) the exce ‘̂ sivene'=- ̂ of the
penalty, in the sense that it was disproportionately har '̂h in relation to
any legitimate need asserted to justify it, at 279, 80, 300-05 (Brennan,
- 77 -
J. , concurring); at 309 (Stewart, J. , concurring);_i^. at 313 (White,
J. , concurring); id. at 331-32, 342-59 (Marshall, J. , concurring).
These same factors are present here. First, it is readily
apparent from this record that death in the streets imposed by the City's
deadly-force policy is at least as arbitrary as the court-imposed death
with which Furman was concerned. This is not just because the policy is
66/
so infrequently effective, — but prim arily because it is so ''wanton” and
"freakish” in its implementation as to be "cruel and unusual in the ^ame
way that being struck by lightning is cruel and unusual, "i^. at 309
(Stewart, J. , concurring); "there is no meaningful basis for distinguishing
the few cases in which it is imposed from the many cases in which it is
not.” at 313 (White, J. , concurring). — 'And as w ill be seen in the next
Argument, the policy in practice is "pregnant with discrim ination," id. at
242 (Douglas, J. , concurring); moreover, it " is imposed under a procedure
that gives room for the play of such prejudices" (see note 36 , supra). Id.
Second, death in a drainage ditch inflicted by a shotgun is surely
as severe and as degrading to the dignity of man as a post-trial execution.
66/ For example, defendants' descriptions of 114 occasions on which
deadly force was used against fleeing property-crime suspects shows
thai a suspect was killed or wounded on only 33 occasions (17 deatlm', 13
woundings), and that frequently no arrests were made at the scene. (See
Appendix A, attached hereto).
67/ As shown in note 16, supra, some Memphis police officers simply
do not use deadly force even in situations in vh ich it is authorized by
policy. Hence, whether or not a fleeing suspect is shot at depends in many
instances upon the personal philosophy, or the whim, of the officer at the
scene.
- 78 -
Finally, and alternatively, slaying Freddie Lee Berry for fleeing
from the scene of a property crime was "so greatly disproportionate to
the offence committed as to be completely arbitrary and shocking to the
sense of justice. " Kasper v. Brittain, 245 F. 2d 92, 9S (3th Cir. ), cert.
denied, 355 U. S. 834 (1957). This Court recently had occasion to apply
the "disproportionality" test of "cruel and unusual" to Ohio's criminal
statutes setting a 10-year minimum prison sentence as the punishment for
possession for sale of marijuana, and a 20-year minimum sentence for the
sale of marijuana. Downey v. Perin i, 518 F. 2d 1288 (oth Cir. 1975),
vacated and remanded for reconsideration in light of recent legislation,
44 U. S. L. W. 3330 (U. S. Dec. 1, 1975). The Court's analysis compared
the Ohio marijuana penalties with those imposed by other states and with
those imposed by Ohio for other crimes of an equal or more serious nature.
Pursuant to this analysis, the Court concluded that a sentence imposed
upon a defendant under the statutes in question
was excessive in length and disproportionate to the
nature of the offenses for which he was convicted.
The legitimate legislative purposes,. . may be
achieved without the imposition of penalties which
are neither proportionate to the offenses nor in
keeping with contemporary standards,
518 F. 2d at 1291, A sim ilar analysis necessarily results in the conclusion
that Freddie Lee Berry 's death, without a trial, was far more excessive
than the judicial sentences considered in both Furman and Downey, His
death, therefore, was authorized and inflicted in violation of the Fighth
Amendment.
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