Brief for the Appellant

    No. 83-1035

In The

Supreme (Kourt of tl|e llniteii ^ates
October Term, 1984

State Of Tennessee, 
Appellant, 

vs.
Cleamtee Garner, 

Appellee,

On Appeal from the United States Court of Appeals 
for the Sixth Circuit

BRIEF FOR THE APPELLANT

W illiam M. Leech, Jr.
Attorney General & Reporter 
State of Tennessee

Jerry L. Smith 
Assistant Attorney General 
450 James Robertson Parkway 

Nashville, Tennessee 37219 
(615) 741-6439

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477



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QUESTION PRESENTED

Whether Tennessee Code Annotated Sec. 40-7-108 is un­
constitutional as repugnant to the Fourth and Fourteenth 
Amendments to the Constitution of the United States?

LIST OF PARTIES

The following parties appeared in the Court of Appeals:

Cleamtee Garner, as father and next of kin of Ed­
ward Eugene Garner, a deceased minor,

(Plaintiff-appellant in the Court of Appeals, 
Appellee in this Court in No. 83-1035; 
Respondent in this Court in No. 83-1070).

The State of Tennessee,

(Appellee in the Court of Appeals, Appellant 
in this Court in No. 83-1035).

The City of Memphis; The Memphis Police 
Department,

Defendants-appellees in the Court of Ap­
peals, Petitioners in this Court in No. 
83-1070).



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TABLE OF CONTENTS

Page

Opinions B elow .................................................................... 1

Jurisdiction............................................................................  2

Constitutional and Statutory Provisions Involved..........  2

S ta tem en t..............................................................................  3

Summary of A rgum ent.......................................................  6

Argument

Tennessee Code Annotated Sec. 40-7-108 Is Not 
Unconstitutional Under The Fourth and Four­
teenth Amendments To The United States Con­
stitution ........................................................................ 8

(A) The Common Law Rule Embodied In 
Tennessee Code Annotated Sec. 40-7-108 Is
Not Violative Of The Fourth Amendment . . .  9

(B) In Declaring Tennessee Code Annotated
Sec. 40-7-108 Unconstitutional As Depriving 
The Fleeing Felony Suspect Of Life Without 
Due Process Of Law Under The Fourteenth 
Amendment, The Court Of Appeals Inap­
propriately Ennunciated A Constitutional 
Doctrine That Is More Appropriately A 
Policy Decision That Should Be Left To The 
Legislatures.........................................................  13

(C) The Due Process Clause Of The Four­
teenth Amendment Does Not Require Imposi­
tion Of The Rule Ennunciated By The Court 
Of Appeals Solely Because The Historical 
Underpinnings Of The Common Law Rule
On Deadly Force Have C h an g ed ..................... 17



IV

C onclusion ............................................................................  19

TABLE OF AUTHORITIES

Page

Cases:

Ashcroft V. Mattis, 431 U.S. 171 (1977)........................... 7,14

Bellv. Wolfish, 441 U .8 .5 2 0 (1 9 7 9 ).................................  18

Bivens v. Six Unknown Federal Narcotics Agents, 403
U.S. 388(1971)............................................................ 10,12

Chimel v. California, 395 U.S. 752 (1969) ....................... 6,9

City of Columbus v. Fraley, 41 Ohio St.2d 173, 324
N.E.2d 735 ....................................................................  11

Cunningham v. Ellington, 323 F.Supp. 1072 (W.D.
Tenn. 1971)..................................................................  15

Garner v. Memphis Police Department, 600 F.2d 52
(6th Cir. 1979).............................................................. 5

Hilton V. State, 348 A .2d 242 (Me. 1975)......................... 15

Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970)..........  13

Jones V. Marshall, 528 F .2d 132 (2nd Cir. 1975)........ 7,14,17,18

Kortum v. Alkine, 69 C.A.3d 325, 138 Cal. Rptr. 26
(1977)............................................................................  14

Landrigan v. City of Warwick, 628 F.2d 736 (1st Cir.
1980)..............................................................................  10

Love V. Bass, 145 Tenn. 522, 238 S.W. 94(1921)............  8,11

Mattis V. Schnarr, 547 F.2d 1007 (8th Cir. 1976)........... 7,14,15,16

Miller v. State, 462 P.2d 421 (Alaska 1969) ..................... 12



V

Minceyv, Arizona, 437 U.S. 385 (1978)........................... 6,10

Monell V. Department of Social Services, 436 U.S. 658,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)....................... 5

Monroe V. Pape, 356 U.S. 167 (1961)............................... 10

Reneau v. State, 70 Tenn. 720 (1879)................................. 8

Scarborough V. State, 168 Tenn. 106(1934)....................  8,11

State V. Boles, 598 S.W.2d 821 (Tenn. Crim. App.
1980)..............................................................................  8,11

State v.Mulvihill, 57 N.J. 151,270 A.2d 277 (1970) . . . .  12

State V. Peters, 450 A.2d 332 (Vt. 1982)........................... 11

State V. Richardson, 95 Idaho 446, 511 P.2d 263 (1973) . 12

State V. Sundberg, 611 P.2d 44 (Alaska 1980)................  14

Terry v. Ohio, 392 U.S. 1 (1968) .......................................  10

Wiley V. Memphis Police Department, 548 F.2d 1247
(6th Cir. 1977).............................................................. 15

Federal Statutory Authorities:

Fourth Amendment, U.S. C onstitu tion ....................... 2,6,8,9,10

Fourteenth Amendment, Sec. 1, U.S. Constitution . .2,5,6,8,16

28U.S.C. § 1254(2).............................................................  2

28U.S.C. § 1331 .................................................................. 4

28U.S.C. § 1343(3).............................................................  4

28 U.S.C. § 2403(c).............................................................  5

42U.S.C. § 1981 .................................................................. 4

42 U.S.C. § 1983 .................................................................  4



VI

42U.S.C. § 1985 ..................................................................  4

42U.S.C . § 1986 ..................................................................  4

42U.S.C. § 1988 ..................................................................  4

State Statutory Authorities:

Iowa Code §804.8 ................................................................  9

Minn. Stat. Ann. §607.7 .....................................................  9

Tennessee Code Annotated Sec. 40-7-108 .........................passim

Other Authorities:

Alaska Stat. § 11.81.370 .....................................................  9

Comment, Deadly Force to Arrest: Triggering Consti­
tutional Review, 11 Harv. Civ. Rights - Civ. Lib.
L .Rev. 360, n.30 (1976).............................................  8

5 W. Blackstone, Commentaries at 292 (1803) (Tucker
E d .) ................................................................................  9

Model Penal Code Sec. 3.07(2)(b).....................................  15

Mogin, The Policeman’s Privilege to Shoot a Fleeing 
Suspect: Constitutional Limits on the Use of Dead­
ly Force, 18 Am. Crim. L. Rev. 533 (1981) ............  9,19

II Pollock and Maitland, History of English Law,
464-466, (2d. Ed. 1959)...............................................  17

Ringel, Searches and Seizures, Arrests and Confessions,
§23.7, pp. 23-29 (2ed 1982) .......................................  8

Sherman, Execution Without Trial: Police Homicide
and the Constitution, 33 Vand. L. Rev. 71 (1980).. 17

Tentative Drafts Nos. 8, 9, and 10, Model Penal Code,
pp. 60-61........................................................................ 12



No. 83-1035

In The

Supreme Olourt of tl|e United S>tatCB
October Term, 1984

State Of Tennessee, 
Appellant,

vs.
Cleamtee Garner, 

Appellee.

On Appeal from the United States Court of Appeals 
for the Sixth Circuit

BRIEF FOR THE APPELLANT

OPINIONS BELOW

The opinion of the United States Court of Appeals for the 
Sixth Circuit, holding Tennessee Code Annotated Sec. 40-7-108 
unconstitutional, was entered on June 16, 1983, and is reported 
at 710 F.2d 240 (6th Cir. 1983). (JS. App. p. A-1).* A sugges­
tion for Rehearing En Banc was denied on September 26, 1983, 
and the order doing so is unreported. (JS. App. p. A-17).

* Reference to documents previously printed in the appendices to 
the Jurisdictional Statement in 83-1035 or the Petition For A Writ of
Certiorari in 83-1070 will be referred to as (JS. App. p____ ) and (Pet.
App. p .___ ), respectively.



—  2

The opinion of the United States District Court for the 
Western District of Tennessee, after remand, dated February 
29, 1980, and upholding the constitutionality of Tenn. Code 
Ann. §40-7-108, is unreported. (Pet. App. p. A-20).

The opinion of the United States Court of Appeals for the 
Sixth Circuit entered in the first appeal of the instant case is 
reported at 600 F.2d 52 (6th Cir. 1979). (Pet. App. p. A-15).

The memorandum opinion of the United States District 
Court for the Western District of Tennessee entered in the 
original trial of the instant case and dated September 29, 1976, 
is unreported. (Pet. App. p. A-1).

JURISDICTION

The judgment of the court of appeals declaring Tenn. Code 
Ann. §40-7-108 unconstitutional was entered on June 16, 1983. 
(JS. App. p. A-1). A Suggestion for Rehearing En Banc was 
denied on September 26, 1983. (JS. App. p. 17). Notice of Ap­
peal to this Honorable Court was filed on October 26, 1983. 
(JS. App. p. A -18). This Court entered an order noting pro­
bable jurisdiction on March 19, 1984. The jurisdiction of this 
Court rests upon 28 U.S.C. §1254(2).

CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

Fourth Amendment, United States Constitution:

The right o f the people to be secure in their persons, 
houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated, and no warrants shall 
issue, but upon probable cause, supported by oath or affir­
mation, and particularly describing the place to be search­
ed, and the persons or things to be seized.

Fourteenth Amendment, Sec. 1, United States Constitution:



All persons born or naturalized in the United States, and 
subject to the jurisdiction thereof, are citizens of the 
United States and of the state wherein they reside. No 
state shall make or enforce any law which shall abridge the 
privileges or immunities of citizens of the United States; 
nor shall any state deprive any person of life, liberty, or 
property, without due process of law; nor deny to any per­
son within its jurisdiction the equal protection of the laws.

Tennessee Code Annotated Sec. 40-7-108:

Resistance of Officer — If, after notice of the intention to 
arrest the defendant, he either flee or forcibly resist, the of­
ficer may use all the necessary means to effect the arrest.

STATEMENT —

On the night of October 3, 1974, police were called to a 
residence at 739 Vollintine in Memphis, Tennessee. Upon their 
arrival, the officers dispatched to the residence were informed 
by a neighbor that “ they are breaking in’’. One officer reported 
to his dispatcher while the other went toward the rear of the 
house. As he approached the back corner of the house, the of­
ficer heard a rear door slam and saw with the aid of a flashlight, 
the figure of a black male crouching next to a fence thirty (30) to 
forty (40) feet away. The officer was unable to ascertain 
whether the man was armed. (Pet. App. pp. A-2-A-4).

The officer shouted to the suspect to “ halt’’ and he identified 
himself. The suspect, after a momentary pause, leaped to the 
top of the fence; and, with half his body over the top, the of­
ficer fired, fatally wounding the suspect. The officer stated he 
fired because he knew he would be unalbe to apprehend the 
suspect in any other manner. The officer was unfamiliar with 
the neighborhood and the terrain, was having difficulty getting 
through the cluttered back yard and because of his size and 
equipment, he did not think he could scale the fence which was 
six (6) to seven (7) feet high. The officer indicated it was dark



—  4 —

and he was concerned about the possibility of an armed ac­
complice in the residence. (Pet. App. pp. A-3, A-4, A-6, 
A-lO-A-11)

The suspect who was killed turned out to be fifteen (15) year 
old Eugene Garner. Garner was unarmed and had a small 
amount of money and jewelry from the residence on his person. 
The residence was unoccupied at the time of the break-in 
although this was unknown to officers at the time of the 
shooting. (Pet. App. p. A-5, A-11)

On April 8, 1975, Cleamtee Garner, the father of Eugene 
Garner, brought the instant action in the United States District 
Court for the Western District of Tennessee pursuant to 42 
U.S.C. §§ 1981, 1983, 1985, 1986, 1988, and 28 U.S.C. §§1331, 
and 1343(3), seeking redress for the fatal shooting of Eugene 
Garner. Named defendants in the lawsuit were the Memphis 
Police Department; the City of Memphis, Tennessee; Wyeth 
Chandler, Mayor of the City of Memphis; Jay W. Hubbard, 
Director of Police for the City of Memphis; and E. R. Hyman, 
Police Officer of the City of Memphis. (App. pp. 4-6).

The suit alleged that Officer Hyman violated the constitu­
tional rights of Edward Eugene Garner when Hyman shot and 
killed Garner in an attempt to apprehend him as Garner fled 
from the burglary of a private residence at 739 Vollintine, Mem­
phis, Tennessee. The remaining defendants were joined on the 
grounds that their failure to exercise due care in the hiring, 
training, and supervision of defendant Hyman made them 
equally responsible for Garner’s death and all defendants were 
sued on the grounds that their use or authorization to use the 
“ hollow point’’ bullet further caused the deprivation of 
Garner’s rights under the Constitution and Laws of the United 
States. (App. p. 6-19).

Trial was held on August 2-4, 1976, before the United States 
District Court for the Western District of Tennessee, the 
Honorable Harry W. Welford, Judge, sitting without the in­



5 —

tervention of a jury. At the conclusion of the plaintiffs proof 
on August 4, 1976, the district court granted a directed verdict 
for defendants Hubbard and Chandler, and a partial directed 
verdict as to the City of Memphis and the Memphis Police 
Department with respect to hiring practices.

On September 29, 1976, the district court found in favor of all 
defendants on all issues. On appeal, a panel of the United 
States Court of Appeals for the Sixth Circuit affirmed the judg­
ment of the district court dismissing the case against the in­
dividual defendants. However, the case was remanded as 
against the City of Memphis for reconsideration in light of this 
C ourt’s opinion in Monell v. Department o f  Social Services, 436 
U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). See: Garner v. 
Memphis Police Department, 6(X) F.2d 52 (6th Cir. 1979). (Pet. 
App. pp. A-1 - A-19).

On remand, the district court entered an order in favor of the 
City of Memphis and determined inter alia that Tennessee Code 
Annotated Sec. 40-7-108 was not violative of the cruel and 
unusual punishment prohibitions of the Eighth Amendment to 
the Constitution nor did the statute violate the due process pro­
visions of the Fourteenth Amendment to the Constitution. 
(Pet. App. pp. A-20 - A-30).

Plaintiff-appellee again appealed to the United States Court 
of Appeals for the Sixth Circuit. During the pendency of this 
second appeal, the Clerk of the Court of Appeals notified the 
Office of the Attorney General of Tennessee that Tennessee 
Code Annotated Sec. 40-7-108 was under constitutional attack. 
Despite the provisions of 28 U.S.C. §2403(c), no prior notice of 
such an attack had been afforded the Office of the Attorney 
General of Tennessee. Pursuant to 28 U.S.C. §2403(c), the 
State of Tennessee, through the Office of the Attorney General, 
filed a motion to intervene in this case for the purpose of defen­
ding the constitutionality of Tennessee Code Annotated Sec. 
40-7-108. The United States Court of Appeals for the Sixth Cir­



—  6

cuit granted the State of Tennessee’s motion to intervene and 
permitted the State to file a brief on the issue. (JS. App. pp. 
A-1, A-11, A-12).

In an opinion delivered by the Honorable Gilbert S. Merritt, 
the United States Court of Appeals for the Sixth Circuit deter­
mined that Tennessee Code Annotated Sec. 40-7-108 was 
violative of the Fourth and Fourteenth Amendments to the 
United States Constitution. The panel of the Court of Appeals 
found that in so far as the statute would permit the use of dead­
ly force against a non-dangerous fleeing felony suspect fleeing a 
non-violent felony, the statute permitted an unreasonable and 
excessive seizure of the person. The panel also held that the due 
process protections of the Fourteenth Amendment prohibit the 
use of deadly force to apprehend a non-violent fleeing felony 
suspect. The case was remanded for further proceedings consis­
tent with the opinion. (JS. App. pp. A-1 - A-16)

The State of Tennessee filed a Suggestion for Rehearing En 
Banc in a timely fashion. Rehearing en banc was denied on 
September 26, 1983. Notice of Appeal to this Court was filed 
October 26, 1983. This Court noted probable jurisdiction on 
March 19, 1984.

SUMMARY OF ARGUMENT

(A)

The Fourth Amendment must be read largely as a reaction to 
abuses suffered by the colonists before the adoption of the Con­
stitution. See: Chime! v. California, 395 U.S. 752, 760, 761 
(1969). The common law rule respecting the use of deadly force 
was ell recognized at the time of the adoption of the Constitu­
tion and has coexisted with the Fourth Amendment until the in­
stant decision of the Court of Appeals. This belies any argu­
ment the Fourth Amendment was ever intended to prohibit the 
use of necessary deadly force to arrest for a felony. Traditional 
F o u r t h  A m e n d m e n t  ana l ys i s  in d e t e r m i n i n g  
“ unreasonableness” has focused on arbitrariness in the govern-



merit’s intrusion or the necessity of the scope of it. Tennessee 
Code Annotated Sec. 40-7-108 is sufficiently narrow to prohibit 
the arbitrary or unnecessary use of deadly force. The Court of 
Appeals takes the unprecedented course of relating Fourth 
Amendment protections to the gravity of the crime involved a 
course this Court has previously rejected. See: Mincey v. 
Arizona, 437 U.S. 385, 393 (1978).

(B)

Almost every case which has previously considered the con­
stitutionality of the common law rule respecting the use of dead­
ly force as a last resort to effect an arrest, which is embodied in 
Tennessee Code Annotated Sec. 40-7-108, has upheld the validi­
ty of the rule in the face of a due process attack correctly con­
cluding that the legislative branch of government is the proper 
forum to address to what extent the needs of effective law en­
forcement can be accomodated by more restrictive deadly force 
policies. See: e.g. Jones v. Marshall, 528 F.2d 132 (2nd Cir. 
1975). Only one case has stricken a statute such as Tennessee’s 
on due process grounds. M att is v. Schnarr, 547 F.2d 1007 (8th 
Cir. 1976), vacated as moot per curiam sub nom. Ashcroft v. 
Matt is, 431 U.S. 171 (1977). Because of its ultimate disposition 
as moot Matt is is of only limited precedential value.

—  7 —

(C)

While the historical circumstances surrounding the origin of 
the common law rule respecting the use of deadly force may 
have changed, the State retains compelling interests in the ap­
prehension of criminals which can only be served through the 
truly effective power of arrest. Thus, the mere change in 
historical circumstances does not warrant a constitutional doc­
trine rennouncing the use of deadly force in all but life- 
threatening arrest situations, thereby giving some felons in ef­
fect the right to escape arrest.



8

ARGUMENT

Tennessee Code Annotated Sec. 40-7-108 Is Not Facially Un­
constitutional Under The Fourth and Fourteenth Amendments 
To The United States Constitution.

Tennessee Code Annotated Sec. 40-7-108 permits police of­
ficers to use whatever force is reasonably necessary to effect the 
arrest of a suspect when police have probable cause to believe 
the suspect has committed a felony. The statute has been inter­
preted by the Tennessee courts to permit an officer to use deadly 
force as a last resort to effect a lawful arrest of a fleeing felon 
when no other means of apprehension is available; but, if the 
deadly force is unreasonably excessive to effect the capture of 
the suspect, then the officer may be subject to criminal liability. 
Scarborough v. State, 168 Tenn. 106 (1934); Reneau v. State, 70 
Tenn. 720 (1879); Love v. Bass, 145 Tenn. 522, 238 S.W. 94 
(1921); State v. Boles, 598 S.W .2d 821, 823 (Tenn. Crim. App. 
1980). The Court of Appeals held the statute to be facially un­
constitutional as permitting an unreasonable seizure of the per­
son because the statute and case law made no differentiation 
between violent and non-violent fleeing felons. The Court of 
Appeals held that the Fourth and Fourteenth Amendments re­
quire not only probable cause to arrest a felony suspect, but also 
probable cause to believe the suspect is dangerous, or has com­
mitted a violent felony before deadly force may be used to effect 
the apprehension, even though the application of deadly force is 
necessary if the suspect is to be apprehended.

Sec. 40-7-108 appears to be a codification of the common law 
rule with respect to the use of deadly force to effect an arrest. 
Despite movement in several jurisdictions to a more restrictive 
rule of law in this area, adherence to the common law rule is still 
widespread.’

‘ Ringel, Searches and Seizures, Arrests and Confessions, §23.7, pp. 
23-29 (2ed 1982); and Comment, Deadly Force to Arrest: Triggering



(A) The common law rule embodied in Tennessee Code An­
notated Sec. 40-7-108 is not violative of the Fourth Amend­
ment.

In declaring Sec. 40-7-108 unconstitutional as violative of the 
Fourth Amendment, and positing a constitutional doctrine re­
quiring police to have probable cause to believe the fleeing 
felony suspect is dangerous or has committed a violent felony, 
the Court of Appeals has undertaken an unprecedented inter­
pretation of Fourth Amendment protections. The common law 
rule respecting the use of deadly force was apparently the rule of 
law in England at the time of publication of the First edition of 
Blackstone’s Commentaries. See: 5 W. Blackstone, Commen­
taries at 292 (1803) (Tucker Ed.); and was apparently well 
recognized at the time of the adoption of the United States Con­
stitution. Mogin, The Policeman’s Privilege to Shoot a Fleeing 
Suspect: Constitutional Limits on the Use o f  Deadly Force, 18 
Am. Crim. L. Rev. 533, 550 (1981). The long history of the 
common law rule’s coexistence with the Fourth Amendment is 
of particular significance since the Fourth Amendment must be 
read in light of the abuses felt by the colonists to which the 
amendment was a reaction. Chimel v. California, 395 U.S. 752, 
760, 761 (1969). Yet until the decision of the Court of Appeals 
in the instant case, no court, of which the appellant is aware, 
has held the common law rule respecting the use of deadly force 
runs afoul of the Fourth Amendment. Appellant submits this 
belies any argument the framers of the Constitution felt the 
common law rule respecting the use of deadly force was an 
abuse of government power.

—  9 —

Constitutional Review, 11 Harv. Civ. Rights — Civ. Lib. L. Rev. 360, 
368 n.30 (1976); both indicate twenty-four (24) states adhere to the 
common law rule. However, Aaska, Minnesota, and Iowa appear to 
have amended their statutes to reflect a more restrictive use of deadly 
force to arrest. See: Aaska Stat. §11.81.370; Iowa Code §804.8; 
Minn. Stat. Ann. §607.7.



It is certainly true that the Fourth Amendment protects in­
dividuals from “ unreasonable” seizures by police using the 
power of arrest. Bivens v. Six Unknown Federal Narcotics 
Agents, 403 U.S. 388 (1971); Terry v. Ohio, 392 U.S. 1 (1968); 
Monroe v. Pape, 365 U.S. 167 (1961); Landrigan v. City o f  
Warwick, 628 F.2d 736 (1st Cir. 1980). However, the 
“ reasonableness” under the Fourth Amendment of the seizure 
of a person appears to have traditionally been evaluated in 
terms of whether the police action was arbitrary, or the 
magnitude of the action was necessary in relation to the state in­
terest served by the police conduct. See: e.g. Terry v. Ohio, 
supra, indicating brief seizure of suspect not arbitrary where 
there are reasonable grounds to believe criminal activity afoot 
and suspect is armed. Under Terry, a limited detention and 
search of the suspect for weapons is reasonable as necessary to 
protect the safety of officers and others.

But in the instant case, the Court of Appeals judges the 
“ reasonableness” of a seizure by the use of deadly force on the 
basis of the gravity of the crime. Thus, the Court of Appeals 
engages in a Fourth Amendment analysis in the instant case 
which is both unprecedented and unwarranted. By relating 
Fourth Amendment protections to the gravity of the crime, the 
Court of Appeals opens a door this Court has heretofore been 
unwilling to take. Mincey v. Arizona, 437 U.S. 385, 393 (1978); 
18 Am. Crim. L. Rev. 533 at 545 (1981).^

—  10 —

 ̂Despite its analysis in relating Fourth Amendment protections to 
the gravity of the crime involved, the Court of Appeals would ap­
parently allow the use of deadly force as a last resort to effect the ap­
prehension of a suspect fleeing a relatively minor felonious assault in­
volving violence, or to effect the arrest of an armed suspect fleeing 
some other relatively minor non-violent felony. On the other hand, an 
unarmed suspect fleeing a non-violent felony, though one deemed 
serious enough by society to merit lengthy punishment, such as 
treason or a triggering offense for recidivism, must be allowed to 
escape if he cannot be captured other than through deadly force. The



11 —

The common law rule codified by Sec. 40-7-108 is sufficient 
to protect the fleeing felon from the arbitrary or unnecessary 
police intrusions against which the Fourth Amendment stands 
guard. The statute permits an officer to use deadly force to ef­
fect a seizure of the person only if: (1) the officer has probable 
cause to believe the person fleeing has committed a felony, (2) 
the officer notifies the person fleeing that he intends to arrest 
the person, (3) the officer reasonably believes that no means less 
than deadly force can be used to prevent the escape of the per­
son fleeing. See: Scarborough v. State, supra; Love v. Bass, 
supra; State v. Boles, supra.

The statute itself, therefore, insures that deadly force is not 
used by police arbitrarily or unnecessarily in effecting a lawful 
arrest. To conclude the Fourth Amendment requires as a 
precondition to the use of deadly force to effect an arrest, pro­
bable cause to believe the suspect is dangerous or has committed 
a violent felony ignores the practicalities of an arrest situation 
such as the instant case. The opinion offers no suggestion as to 
how officers who answer a call to a felony in progress, in the 
nighttime, in a situation requiring split-second decision making 
if the suspect is to be apprehended, are to gather sufficient in­
formation to establish probable cause to believe a fleeing 
suspect is dangerous or has committed a violent felony. The 
need to reduce violence in our society would be better served by 
the peaceful submission to arrest by suspects who have good 
reason to know the person seeking to arrest them is a law en­
forcement officer engaged in the performance of his duties, 
rather than by a constitutional doctrine which provides the op­
portunity for the swift felon to escape. See: State v. Peters, 450 
A.2d 332 (Vt. 1982); City o f  Columbus v. Fraley, 41 Ohio St.2d

opinion also leaves open the possibility that in the future all police ap- 
plicatipns of force, deadly or not, will be measured for their 
reasonableness not by the necessity for the force but by the gravity of 
the crime involved.



12

173, 324 N.E.2d 735, cert, den., 423 U.S. 872 (1975); State v. 
Richardson, 95 Idaho 446, 511 P.2d 263 (1973), cert, den., 414 
U.S. 1163 (1974); State v. Mulvihill, 57 N.J. 151, 270 A.2d 111 
(1970); Miller v. State, 462 P.2d 421 (Alaska 1969); all in­
dicating needs of a peaceful, law-abiding society promoted by 
peaceful submission to arrest by law enforcement officers.

As Professor Waite of the Model Penal Code’s Advisory 
Committee noted in dissenting from the Model Penal Code’s 
restrictive deadly force provisions:

. . . only through truly effective power of arrest can law be 
satisfactorily enforced. obviously until violators are 
brought before the courts the law’s sanctions cannot be ap­
plied to them . . . [Ejffectiveness in making arrests requires 
more than merely pitting the footwork of policemen 
against that of suspected criminals.

Tentative Drafts Nos. 8, 9, and 10, Model Penal Code, pp. 
60-61.

Once a decision to arrest has been made by police, the citizen 
can legally do very little if anything to prevent government ac­
tion to effect the arrest. See: Bivens v. Six Unknown Federal 
Narcotics Agents, 403 U.S. 388, 394, 395 (1971). Thus the 
Fourth Amendment should stand guard against the unnecessary 
use of excessive force to effect the arrest. But the fleeing felony 
suspect can do a great deal to prevent the application of deadly 
force: he can stop his flight and peacefully submit to a lawful 
arrest thereby forestalling the necessity to use deadly force. The 
freedom from arbitrary and unnecessary interference from the 
government that the Fourth Amendment confers on citizens 
cannot reasonably be said to encompass a chance to outrun any 
police officer who lawfully attempts to apprehend him. To con­
clude otherwise grants an immunity to the fleeing felon he does 
not deserve, and results in society’s sufferance of a risk it does 
not deserve.



13 —

The opinion of the court of appeals in the instant case cites 
Jenkins v. Averett, 424 F.2d 1228 (4th Cir. 1970); as the only 
case found by the court discussing Fourth Amendment limita­
tions on the use of deadly force to capture a fleeing suspect. 
But, Jenkins does not begin to suggest the constitutional doc­
trine posited by the court of appeals in the instant case. In 
Jenkins, the fleeing suspect was unreasonably seized within the 
meaning of the Fourth Amendment for two (2) reasons. First, 
the facts of the case lead to the conclusion that officers had no 
probable cause to interfere with Jenkins’s freedom of move­
ment at all and thus had no lawful right to arrest him using any 
level of force. Secondly, the use of deadly force was both 
reckless and excessive because it was apparently not necessary to 
capture him. Thus, Jenkins does not deal with the situation 
presented in the instant case, i.e. a fleeing suspect whom officers 
have probable cause to believe has committed a felony, and who 
cannot be apprehended other than through the use of deadly 
force.

For the foregoing reasons, the State respectfully submits that 
Tennessee Code Annotated Sec. 40-7-108 which permits the use 
of deadly force only as a last resort to capture a fleeing felony 
suspect is not violative of the Fourth Amendment to the Con­
stitution.

(B) In declaring Tenn. Code Ann. Sec. 40-7-108 unconstitu­
tional as depriving the fleeing felony suspect of life without due 
process of law under the Fourteenth Amendment, the Court of 
Appeals inappropriately ennunciated a constitutional doctrine 
that is more appropriately a policy decision that should be left 
to the legislatures.

The Court of Appeals in the instant case held Sec. 40-7-108 
facially invalid under the due process clause of the Fourteenth 
Amendment. The court determined that in less than life 
threatening confrontations with police, the State has no com­
pelling interest that would permit officers to use deadly force to



14

apprehend a fleeing felony suspect, i.e. deprive the suspect of 
his life without due process of law. The State respectfully sub­
mits the statute is not facially unconstitutional on this basis.

Almost every case which has previously considered the con­
stitutionality of statutes similar to Sec. 40-7-108, or indeed Sec. 
40-7-108 itself, on due process grounds has upheld the constitu­
tionality of the statutes. Only the Eighth Circuit case of Matt is 
V. Schnarr, 547 F.2d 1007 (8th Cir. 1976), vacated as moot per 
curiam sub nom Ashcroft v. Mattis, 431 U.S. 171 (1977), reh. 
den., 433 U.S. 915, is in accord with the holding of the Court of 
Appeals in the instant case.’

In Jones v. Marshall, 528 F.2d 132 (2nd Cir. 1975); the court 
upheld the validity of the Connecticut common law rule concer­
ning the use of deadly force, which is virtually identical to Tenn. 
Code Ann. Sec. 40-7-108. Although expressing a belief that the 
privilege to use deadly force should as a matter of policy be 
restricted to situations where there is a violent crime or the flee­
ing suspect poses a serious threat of danger, the court declined 
to elevate this belief to a constitutional mandate. The court 
noted that the long history of the common law rule, the ready 
availability of weapons in our society, the widespread presence 
of violence and the changing needs of law enforcement made 
the policy decision one most properly entrusted to the 
legislatures where these factors could be weighed and debated.

On a previous occasion, the Sixth Circuit Court of Appeals 
has considered the constitutionality of Sec. 40-7-108 and has

 ̂ In Kortum v. Alkine, 69 C.A.3d 325, 138 Cal. Rptr. 26 (1977); 
State V. Sandberg, 611 P.2d 44 (Alaska 1980); the state courts inter­
preted their deadly force statutes to be limited in application to those 
fleeing violent felonies, or life-threatening situations but these courts 
did so on state law bases.



15 —

upheld its validity/ In Wiley v. Memphis Police Department, 
548 F.2d 1247 (6th Cir. 1977); the Sixth Circuit found Sec. 
40-7-108 [formerly §40-808], to comport with due process and 
roundly critized the contrary holding in Mattis v. Schnarr, 
supra, as extending unwarranted protection to the felon at the 
expense of the public. Because the abolition of the privilege to 
use deadly force in certain felonies thereby allowing some felons 
to escape had such a serious impact on the protection of the 
citizenry, the Sixth Circuit at the time of Wiley thought the 
question of the privilege to use deadly force one better left for 
the legislative branch. 548 F.2d at 1252. See also: Cunningham 
V. Ellington, 323 F.Supp. 1072 (W.D. Tenn. 1971) (three-judge 
court); upholding the constitutionality of Tennessee’s deadly 
force rule.

In Hilton v. State, 348 A.2d 242 (Me. 1975); the Supreme 
Judicial Court of Maine reversed the holding of a lower ap­
pellate court which abrogated the common law rule of Maine 
with regard to the use of deadly force to arrest in favor of the 
Model Penal Code’s more restrictive deadly force policy.^ In 
holding such public policy changes were better left to the 
legislature, the court said of the actions of the lower court:

In effect, it undertook to formulate a new public policy for 
the State of Maine in an area in which the delicacies of the 
balancing of values, the strongly held differing attitudes 
among segments of the populace and the potential for

'' Despite prostestations to the contrary in the opinion of the Court 
of Appeals in the instant case, the Sixth Circuit case cited in the text 
above clearly upholds the constitutionality of Sec. 40-7-108 in the face 
of a due process attack.

’ See: Model Penal Code Sec. 3.07(2)(b); restricting use of deadly 
force to violent felony situations or where there is substantial risk of 
violence by suspect if apprehension is delayed.



16 —

enormous impact upon the public welfare strongly point to 
the propriety of judicial restraint, and an acknowledge­
ment that inadequacies, if any, in the common law as 
presently operative should be left to the Legislature to 
evaluate and remedy.

348 A.2d at p. 245.

In Mattis v. Schnarr, supra, the Eighth Circuit Court of Ap­
peals by a single vote in an en banc hearing held a Missouri 
statute similar to Sec. 40-7-108 to be violative of the due process 
clause of the Fourteenth Amendment in so far as it would per­
mit the use of deadly force against fleeing felony suspects who 
were ultimately determined to be non-dangerous. In a strongly 
worded well-reasoned dissent three (3) judges of the Eighth Cir­
cuit found the question of when deadly force should be applied 
was one of public policy that should be entrusted to the 
legislature, not made a rule of constitutional magnitude. The 
dissent also pointed out that such a rule of constitutional law 
placed extraordinary burdens on police in emergency situations. 
In discussing the standard ennunciated in Mattis for the use of 
deadly force, which is similar to the one announced by the 
Court of Appeals in the instant case the dissent, per Chief Judge 
Gibson stated:

This standard presupposes that law enforcement officers 
are endowed not only with foresight, but also with that 
most characteristic judicial vision, hindsight. The majority 
does not suggest how law enforcement officers are to make 
the on-the-spot consitutional analysis called for by its pro­
posal and still react quickly enough to meet the exigencies 
of an emergency situation. How can a police officer ever 
know, reasonably or otherwise, whether the felon will use 
force against others if not immediately apprehended? It is 
clearly the perogative of the state legislatures to decide 
whether such restrictions on the use of deadly force are 
consonant with public policy.^

‘ 547 F.2d at 1023.



17 —

The state’s interests in this area it is respectfully submitted are 
compelling, and include effective law enforcement, the ap­
prehension of criminals, the prevention of crime and protection 
of the general public.' The ready availability of handguns in 
our society and widespread violence indicate that to what extent 
the state’s interest can be served while protecting the fleeing 
felon’s right to life is a matter better entrusted to the state 
legislatures, than made a rule of constitutional law to which all 
states would be subject.'* *

(C) The due process clause of the Fourteenth Amendment 
does not require imposition of the rule ennunciated by the 
Court of Appeals solely because the historical underpinnings of 
the common law rule on deadly force have changed.

The opinion of the Court of Appeals takes as its premise for 
promulgating a constitutional doctrine on the use of deadly 
force to arrest, that the historical underpinnings surrounding 
the growth of the common law rule on deadly force have chang­
ed.’ (JS. App. p. A-8). It is true that some scholars have sug­
gested that the common law rule regarding the use of deadly 
force had its origin at a time when only violent crimes were 
felonies and all were punishable by death.'® The Court of Ap­
peals reasons that because this is no longer the case with 
felonies, evolving standards of decency require a constitutional 
doctrine renouncing the use of deadly force except for felonies 
police have probable cause to believe involve violence or 
danger." (JS. App. p. A-8)

 ̂ Id.

* Jones V. Marshall, 528 F.2d 132, 140.

’ 710 F.2d at 243-245.

II Pollock and Maitland, History of English Law, 464-466, 
578-80 (2d. Ed. 1959); Sherman, Execution Without Trial: Police 
Homicide and the Constitution, 33 Vand. L. Rev. 71 (1980).

" 710 F.2d at 244.



18

This reasoning assumes that the application of deadly force to 
arrest is really punishment. As such, it can only be imposed 
without due process guarantees such as a trial when there is a 
threat to life. But if the killing of a non-violent fleeing felony 
suspect deprives the supect of constitutional guarantees, it does 
so no less with the fleeing violent offender.’  ̂Yet no one serious­
ly argues that police should not be privileged to use deadly force 
to arrest in a situation frought with actual violence or the poten­
tial violence. The answer to this argument is that the use of 
deadly force as a last resort to effect the arrest of a fleeing felon 
is not punishment. The resultant disability to the fleeing 
fugitive is imposed not for the purpose of punishing him, but as 
a necessary incident to the government’s compelling interests in 
the apprehension of criminals, the prevention of crime and the 
protection of the public. This Court has previously indicated 
that not every pre-trial disability imposed on a criminal suspect 
is punishment; the test is whether the disability is imposed for 
the purpose of punishment or for the vindication of some other 
legitimate government interest. Bell v. Wolfish, 441 U.S. 520, 
537, 538 (1979).

Appellant does not mean to suggest that because the applica­
tion of deadly force is not punishment it can be arbitrarily or 
unnecessarily utilized. But Sec. 40-7-108 as interpreted by the 
Tennessee courts restricts the use of such force only to when it is 
necessary to effect the apprehension. This necessity is often 
created by the felon himself who refuses to peacefully submit to 
a lawful arrest. It is respectfully submitted the limited cir­
cumstances under which Sec. 40-7-108 itself permits the use of 
deadly force are sufficient to adequately accommodate the flee­
ing suspect’s right to life; the suspect has but to obey the order 
to halt to prevent the use of deadly force.

’’ Jones V. Marshall, supra, 528 F.2d at 136 n.9., rejecting the 
reasoning adopted by the Court of Appeals in the instant case.



A change in the historical factors giving origin to the common 
law rule does not mandate the adoption of the constitutional 
doctrine announced by the Court of Appeals. To adopt that 
deadly force doctrine gives the felon an unjustified opportunity 
to escape apprehension, while failing to sufficiently accom­
modate the compelling interests of the state in apprehending 
him. Unlike the days of the early common law, the modern 
police officer cannot count of the general citizenry to respond to 
the “ hue and cry’’ of the common law by which the public was 
obliged to aid in the capture of fleeing suspects.'^ Only through 
the privilege to use deadly force as a last resort to effect the cap­
ture of a fleeing suspect is the power to arrest truly effective. It 
would appear to be common sense that an officer’s order to 
“ stop or I’ll shoot” enhances the likelihood that suspects will 
submit to arrest, if that order is believed.

CONCLUSION

For the reasons set forth above, the Appellant respectfully re­
quests that the decision of the Sixth Circuit Court of Appeals be 
reversed.

Respectfully submitted,

WILLIAM M. LEECH, JR.
Attorney General & Reporter
State of Tennessee

JERRY L. SMITH
Assistant Attorney General 
450 James Robertson Parkway 

Nashville, Tennessee 37219 
(615) 741-6439

—  19 —

See: 33 Vand. L. Rev. 71 at 74, n. 14, citing 4 W. Blackstone, 
Commentaries at 293.

“ Mogin, The Policeman's Privilege to Shoot a Fleeing Suspect: 
Constitutional Limits on the Use o f Deadly Force, 18 Am. Crim. L.
Rev. 533 (1981).



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