Defendants' Proposed Findings of Fact and Conclusions

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

WESTERN DIVISION

CLEAMTEE GARNER, father and next 
of kin of EDWARD EUGENE GARNER, 
a deceased minor.

Plaintiff,
CIVIL ACTION 
NO. C-75-145

MEMPHIS POLICE DEPARTMENT; CITY 
OF MEMPHIS, Tennessee; WYETH 
CHANDLER, Mayor of Memphis; JAY 
W. HUBBARD, Director of Police 
of Memphis; and E. R, HYMON, 
Police Offj.cer of the City oc 
Memphis,

Defendants.

DEFENDANTS' PROPOSED FINDINGS OF FACT
AND

CONCLUSIONS

FINDINGS OF FACT

1. On the evenxng of October 3, 1974, Edward Eugene 
Garner broke into the Anderson home at 739 Vollintine, Memphis, 
Tennessee, for the purpose of commiting larceny.

2. A telephone call was placed to the Memphis Police 
Department from the home of Dad.sey Bell Statts, 737 Vollintine, 
advising that someone had broken into the house next door.
Although the Statts house was not the one being broken into, the 
address of 737 Vollintine was given to the police.

3. A call went out by retdio over the police network to 
the police car in Ward 128 that was manned by Defendant Hym.on and 
Patrolman Leslie Wright directing them to proceed to 737 Vollintine 
where there was a prowler inside.

4. Upon arriving at 737 Vollintine, the officers saw 
Daisey Bell Statts standing on her porch pointing to the house 
next door which v/as 7 39 Vollintine. Defendant Hymon got out of

138



the car to question Ms. Statts ^̂ bout the situation and she said, 
"They are breaking in inside".

5. Defendant Hymon returned to the car, got his flash­
light, advised his partner what was happening, and then proceeded 
south along the west side of the house at 739 Vollintine.

6. Patrolman Wright then moved the squad car to the 
curb, called the dispatcher to advise they were on the scene, 
picked up his flashlight, and moved toward the east side of the 
house.

7. Defendant Hymon was aware that tliere was a light on 
in the house as he proceeded down the west side to the rear.

8. As Defendant Hymon approached the southwest corner 
of the house he heard the back screen door slam and as he got to
a point just beyond the corner of the house he saw a figure running 
from the back of the house to the back of the lot where a six (6) 
foot cyclone fence stretched across the south boundary of the 
property.

9. There was a three to four (3 to 4) foot chicken wire 
fence which ran in a north to south direction along the west side 
of the back yard and was situated between Defendant Hymon and the 
cyclone fence.

10. As Defendant Ĥ mion was standing at a point near 
the southwest corner of the house he observed that a garbage can 
was placed under a window on the back side of the house and the 
glass was broken out of the window.

11. Defendant Hymon then shined his flashlight along 
the fence and spotted a person who later turned out to be Edward 
Eugene Garner in a stooped position next to the cyclone fence near 
the southv/est corner of an outbuilding located in the southeast 
corner of the yard.

12. Defendant Hymon shouted "halt" and Garner paused 
momentarily and then as Defendant Hymon took two steps in his

-  2 139



direction and toward the chicken wire fence Garner began to spring 
over the cyclone fence and had gotten half of his body over the 
fence when Hymon fired his service revolver hitting Garner in the 
right side of the head.

13. Patrolman Wright who had proceeded along a pickett 
fence in the front of the house on the east side heard Defendant 
Hymon yell "halt" in a loud voice, following which there was a 
pause and then as he approached the northeast corner of the house 
he heard a shot.

14. When Patrolman Wright reached the southwest corner 
of the house, Defendant Hymon said, "He's over there on the fence" 
at which time Wright flashed his flashlight along the fence until 
he picked up Garner whose body was draped on the fence, the top 
half over the south side and the lower half on the north side.

15. An ambulance was called and the body was removed 
from the fence at which time Garner was neither moving nor speaking,

16. Garner was transported to the hospital where he 
expired shortly after his arrival.

17. It was determined that after breaking into the 
house. Garner ransacked the bedrooms and removed a ring and wallet 
containing $10.00 in cash.

18. The cyclone fence at the back boundary of the lot 
where Garner was shot was six (6) feet tall.

19. The distance from Defendant Hymon to Garner at the 
time of the shooting was approximately thirty-five to thirty-seven 
(35 - 37) feet.

20. Although Defendant Hymon did not see a weapon of 
any kind on Garner up to the time of the shooting he was not 
positive that Garner was unarmed as he could not tell if he had a 
weapon on his person.

14U
-  3



21. There was a concrete block and a board about a 
foot from the fence which Garner used to climb on the fence.

22. Defendant Hymon could not have apprehended Garner 
on foot before he climbed the fence nor did Hymon believe in his 
own mind that he could have caught Garner once he climbed over 
the fence.

23. Plaintiff's expert witness Eugene Barksdale 
testified that in apprehending a fleeing felon, if in the officer's 
own mind the person is about to escape and there is no other way
to catch him, then he is justified in using lethal force.

24. Captain John Coletta, who qualifies as an expert 
in the use of firearms as v;ell as when lethal force should be 
used, testified that in his opinion Hymon was justified in using 
his weapon to apprehend Garner under the circumstances.

25. Less than two months prior to October 3, 1974,
Edward Eugene Garner was placed on probation by the Juvenile Court
in Memphis in connection with an adjudication of Juvenile Delinquency 
stemming from a charge of Burglary in the Second Degree.

26. On August 26, 1974, when Edward Eugene Garner was 
placed on probation on a charge of Burglary in the Second Degree, 
his father indicated to the probation officer that it might be 
better if his son was sent to a correctional institution.

27. Edward Eugene Garner was placed on probation by 
Juvenile Court on November 1, 1971, in connection with a charge 
of Burglary in the Third Degree.

28. Edward Eugene Garner was charged with violation 
of curfew by the Juvenile Court which matter was adjusted non 
judicially and Garner was released to his mother.

29. At the time of his death, the alcohol content in 
the blood of Edward Eugene Garner was .09 which is just under
.10, the standard established by State Law which creates a presump­
tion that one is acting under the influence of an intoxicant.

-  4 -
141



30. When Defendant Hymon yelled, "halt", Garner looked 
in his direction and could see that he was being confronted by a 
police officer, especially in view of the fact that there was a 
porch light turned on next door at 737 Vollintine which illuminated 
Defendant Hymon.

31. Defendant Hymon at the time he was attempting to 
apprehend Garner could not be certain whether there was an accomplice 
in the house.

32. The area by the cyclone fence in the back of the 
house and the area south of the fence was very dark at the time 
Defendant Hymon was trying to apprehend Garner.

33. The General Order published by the Memphis Police 
Department on February 5, 1974, in connection with the "Use of 
Firearms and Deadly Force" which was in effect on October 3, 1974, 
is more restrictive than TCA 40-808, the Tennessee Statute which 
deals with means by which a fleeing felon may be apprehended.

34. The training methods used and the subject matter 
taught at the Memphis Police Department Training Academy and in 
particular in the area of the use of firearms and deadly force, 
are consistent with those used by other police departments 
throughout the country and the FBI Academy.

33 Blood was found on both sides of the cyclone fence 
following the shooting.

36. There is nothing in the record to indicate that 
Defendant Hymon had any propensity toward the precipitous and 
reckless use of firearms.

37. After a full investigation of the incident of 
October 3, 1974, and a review of same by the Firearm's Review Board, 
no disciplinary action was taken against Hymon.

38. The shooting of Garner by Hymon was presented to 
the Shelby County Grand Jury and a No-True Bill was returned.

-  5 -
14



39. Defendant Hymon was a graduate of the 36th Session 
of the Memphis Police Academy.

40. The Memphis Police Department decided to make a 
study of various types of ammunition following complaints by 
officers that the round nose ammunition they were issued was not 
effective in stopping or neutralizing individuals with whom they 
were confronted in dangerous situations.

41. Numerous tests were run by the firearms' section 
of the Memphis Police Department under the auspicies of Captain 
John Coletta and he recommended a change to a hollow point projec­
tile for the reasons that it would be more effective in neutralizing 
an individual and it was less likely to penetrate the individual 
and continue in flight and do harm to innocent people and property.

42. During the term of Director Jay Hubbard, the Memphis 
Police Department after careful study and consideration, switched 
to hollow point ammunition, to-wit: .38 Special Caliber Remington 
125 Grain semi-jacketed hollow point.

43. Hollow point ammunition is used by other police 
departments throughout the United States as v/ell as the FBI.

44. The key factor in the injury producing effect of 
bullets is not whether they are hollow point or round nose but 
the part of the body they strike.

45. Medical authorities have concluded that hollow point 
ammunition produces no more injuries than round nose ammunition.

CONCLUSIONS

1. Defendant Hymon was justified in using his weapon to 
apprehend Edward Eugene Garner as this was the only reasonable 
and practicable means of taking a felon or preventing his escape.

(a) TCA 40-808 provides that "if, after notice 
of the intention to arrest the defendant,' he either

14di
-  6 -



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

(b) At the time in question. Officer Hymon 
commanded Garner to "halt".

(c) Garner was guilty of commiting Burglary in 
the First Degree, to-wit: breaking and entering a 
dv/elling place in the nighttime with intent to commit 
a felony, TCA 39-901.

(d) Garner was aware that he was being commanded 
to halt by a police officer because he was within hear­
ing range of the officer and the back porch light had 
been turned on at 737 Vollintine which served to illu­
minate the officer and the fact that he had a gun in 
his hand.

(e) After having been told to halt and knowing 
that he was confronted by a police officer. Garner 
recklessly and heedlessly attempted to vault over 
the fence, thereby assuming the risk of being fired 
upon.

(f) In burglarizing a private home and attempting 
to flee. Garner knowingly and wilfully placed himseJ.f 
in a precarious oosition and should have known that 
firearms might be used.

(g) Under the circiamstances Garner was directly 
and proximately contributing to his own injury and 
death, taking into account all factors present.

(h) At the time of the shooting incident. Garner 
was on probation in connection with a previous burglary 
charge, and had been drinking to the extent that he 
bordered on being under the influence of an intoxicant.

(i) Defendant Hymon was satisfied in his own 
mind and justified in thinking that once Garner scaled

Î IA
-  7 -



the fence, he would have been unable to apprehend him, 
because (1) Garner was already half way over the fence 
before Hymon couJ.d get over the chicken wire fence 
separating him from the back yard; (2) Garner was some 
35 to 37 feet away from Hymon when Garner started to scale 
the fence; (3) Hymon was not fast enough on foot to 
catch him under the circumstances; (4) It was very 
dark by the fence and beyond to the south; (5) There 
was tall grass and brush in the area behind the fence;
(6) Hymon would have to negotiate his way through a 
cluttered back yard to get into position to try to 
climb over the cyclone fence; (7) With all of his 
equipment and paraphernalia it would have been hard 
for him to climb the fence with any speed; and (8)
Due to the fact that Hymon was advised by Ms. Statts 
upon arriving at the scene that "They are breaking 
in inside", he could not be certain whether there 
was an accomplice inside the house who might be armed 
and come out of the house shooting.

(j) Neither Hymon nor his partner could reasonably 
expect to catch Garner on foot before or after he scaled 
the back fence.

(k) The officers were totally unfamiliar with the 
area and in parcJcuiar that area behind and to the south 
of the cyclone fence.

(l) Garner was familiar with the neighborhood 
since he lived on Tully which was nearby.

(m) Although Hymon saw no weapon, he could not be 
absolutely certain that Garner was unarmed since he 
could have had a weapon on his person, nor could he be 
certain whether there was a weapon available to Garner 
on the other side of the fence.

(n) Because of the darkness and the fact that every­
thing happened so fast Hymon could not ascertain the age

- 8 - 145



or size of Garner to the extent of determining that he 
was in fact a juvenile.

(o) There was very little opportunity of identifi­
cation of Garner for purposes of future arrest if he 
escaped.

(p) Even if Hymon knew Garner was a juvenile, he 
would have been justified in using deadly force where
no other reasonable and practicable means were available 
to apprehend him,.

(q) While it was apparent to Hymon that the house 
had been broken into, he could not be certain whether 
the crime was being perpetrated against property or a 
person.

2. The training program of the Memphis Police Department 
which incorporates methods, practices and procedures used by other 
police departments throughout the country and principles taught
at the FBI Academy was more than adequate.

3. The policies of the Memphis Police Department which 
authorize the use of firearms to apprehend fleeing felons come 
within the ambit of the Tennessee Statute (TCA 40-808). Further­
more, the General Order dated February 5, 1974, and which was in 
effect on October 3, 1974, dealing with the subject of the "Use 
of Firearms and Deadly Force" is more restrictive than the State 
Statute.

4. The use of hollow point bullets does not assure 
that a person shot will be grievously wounded o.r killed instantly 
anymore than one shot with round nose ammunition. The part of the 
body hit is more determinative of the resulting injury than the 
type of ammunition used.

(a) In the instant case, the type of ammunition 
used would have little bearing on the subject, since



in all probability, a shot to the head would 
result in death regardless of whether tlie 
bullet was hollow point or round nose.

Henry L. Klein, Staff Attorney 
City of Memphis 

Attorney for Defendants 
100 North Main Building - 3500 
Memphis, Tennessee 38103

CERTIFICATE OF SERVICE

I, Henry L. Klein, Staff Attorney for the City of Memphis, 
hereby certify that a copy of the foregoing Defendants' Proposed 
Findings of Fact and Conclusions has been mailed to Mr. Walter Lee 
Bailey, Jr., Attorney at Law, Suite 901, Tenoke Building, 161 
Jefferson Avenue, Memphis, Tennessee 38103, and to Mr. Drev/ S. Days, III 
Attorney at Law, 10 Columbus Circle, New York, New York 10019, via 
United States Mail, postage prepaid, this 23rd day of August, 1976.

Henry L. Klein

\ M

-  10 -