Decision and Filing of Garner v. Memphis Police

    No. 77-1089

UNITEO STATES COURT OF APPEALS
"■-OR THE SIXTH CIRCUIT

Clei\m ti:e (Earner, father and next of 
kin of Eugene Gamer, a deceased, 
minor,

Pluintiff-Appellant,

V.

M em I'JUS 1’o u c e  13epa rtm en t , C ity 
OE MiOMi’ins, T ennessee and Jay  
W. IluRBARD and E. R. Hymoi  ̂ in 
their official capacities.

Defendants-Appellees.

O n Appeal from the 
United Slc'es District 
Court for the Western 
District of Teimessee.

Decided and Filed June 18, 1979.

Before: Edwaiujs, Chief Judge; L ively aiid M erritt, Cir­
cuit Judges.

M erritt, Circuit Judge. On the night of October 3, 1974, 
a fifteen year old, unanned boy broke a window and en­
tered an unoccupied residence in suburban Memphis to steal 
money and property. Two police officers, called to the scene 
by a neighbor, intercepted the youth as he ran from the back 
of the house to a six foot cyclone fence in the back ytud. 
Using a 38-calibre pistol loaded with hollow point bullets, 
one of the officers shot and killed the boy from a range of 
30 to 40 feet as he climbed the fence to escape. After shining 
a flashhght on the b y as he crouched by tlie fence, the of-



ficer identified himself as a policeman and yelled “Halt.” He 
could see that the fleeing felon was a youth and was apparent­
ly unarmed. As the boy jumped to get over the fence, the 
officer fired at the upper part of the body, as he was trained 
to do by his superiors at the Memphis Police Department. 
He shot because he believed the boy would elude capture in 
the dark ouc-e he was over the fence. The officer was taught 
that it was proper to kill a fleeing felon rather than run 
the risk of allowing him to escape.

The Dis-inct Court dismissed the suit of decedent’s father 
brought against the City under 42 U.S.C. § 1983 (1976) to 
rec-over damages for vTongful death caused by claimed con­
stitutional violations of the fourth, eighth and fourteenth 
amendments. In accordance with then existing law, the Dis­
trict Court held that a city is not a “person” subject to suit 
under § 1983; but Monroe v. Pape, 3C1 U.S. 167 (1961), in 
which the Supreme Court so ruled, was overruled on this 
point last term by the case of Monell v. Department of Social 
Services, 436 U.S. 658 (1978). Following a bench trial, the 
District Court also dismissed the case against the officer and 
his superiors holding, in accordance with our decisions in 
B eechv. Melancon, 465 F.2d 425 ( 6th Cir. 1972), cert, denied, 
409 U.S. 1114 (1973); Qualls v. Parrish, 534 F.2d 690 ( 6th Cir. 
1976); am’ W iley  v. Memphis Police Department, 548 F.2d 
1247 (6th Cir.), cert, denied, 434 U.S. 822 (1977), that the 
officers acted in good faith reliance on Tennessee law which 
allows an officer to kill a fleeing felon rather than nin the 
risk of allowing him to escape apprehension.

W e conclude that the District Court did not err in finding 
that the individual defendants acted in good faith reliance 
on Tenn . C ode A n .v . § 40-808 which provides that an officer 
“may use all the necessary means to effect the arrest” of a 
fleeing felon. As our previous cases, cited above, point out, 
Tennessee cornls have interpreted this statute as a codification 
oi the common law rule allowing officers to kill fleeing felons 
rather than run the risk of permitting them to escape ap­

2 Garner v. Memphis Police Department, et al. No. 77-1GJ9

prehension. This rule applies to fleeing felons suspected of 
property crimes not endangering human fife, as well as life- 
endangering crimes, and to fp’ ons who pose no threat of 
bodily harm to others, if not apprehended immediately, as 
well as felons who may be dangerovL to others if left at large. 
Applying the qualified “good faith” privilege or immunit)- 
from liabilih- for constitutional claims, as announced in our 
previous decisions cited abo\e, we affirm that portion of the 
District Court's judgment dismissing the case against the in­
dividual defendants.

W e reverse and remand the case against the Cit)’, how­
ever, far reconsideration by the District Court in light of 
Monell V. Department of Social Services, supra. Monell holds 
that a city may be held liable in damages under § 1983 for 
constitutional deprivatio"s that result from a “policy or cus­
tom” followed by the city. 436 U.S. at 694 and n.66.

Our pre\'ious decisions do not establish the constitutionality’ 
of T en x . C ode A x x . § 40-808, permitting a city to authorize 
its officers to use deadh- force against a fleeing felon, nor 
have they e‘‘*^ablished the constitutionality of the ciU’’s use of 
hollow point bullets. Although there is discussion of the 
constitutionality c : the Tennessee statute in the Beech, Qualls 
and Wiley cases, supra, all tlnee of those cases dealt with ac­
tions against individ’ ial officers under § 1983, and not liabili­
ty based on tĥ ' “policy or custom” of a governmental entity. 
Those cases held that it “would be unfair” to impose liability’ 
on an officer "who relied, in good faith, upon the settled law 
of his state that relie\’ed him from liability for the particular 
acts perfonned in his official capacity.” Qualls v. Parrish, supra 
at 694, quoted in Wiley v. Memphis Police Department, supra 
at 12.53. The essential bolding of those cases was that an in- 
di\idual officer has a qualified pri\'ilege or immimity from 
liability for constitutional claims based on good faith per­
formance oi Iris duties in accordance with statutorv or admin­
istrative authority, a holding subsequentlv approved by’ the 
Supreme Court in Butz v. Economou, 438 U.S. 478, 496-508

No. 77-1089 Garner v. Memphis Police Department, et al. 3



(1978). Although the qualified immunity developed in those 
cases insulates the oflBcers and officials from personal liability 
in this case, as the District Court held, the following ques­
tions in the case against the city are still open under Monell:

1. Does a municipahty have a similar qualified immuni- 
t)' or privilege based on good faith under Monell?’

2. If not, is a municipality’s use of deadly force under 
Tennessee law to capture allegedly nondangerous 
felons fleeing from nonviolent crimes constitutionally 
permissible under the fomth, sixth, eighth and four­
teenth amendments?®

3. Is the municipahty’s use of hollow point buUets con­
stitutionally permissible under these provisions of the 
Constitution?® . v

4. If til' municipal conduct in any of these respects vi­
olates the Constitution, did the conduct flow from a 
“policy or custom” for which <-he City is liable in 
damages under Monell?^

4 Garner v. Memphis Police Department, et al. No. 77-1089

J

’ See discussion of this question in Leite v. City of Providence, 463 
F. Supp. 585, 588 (D. R.I. 1978).

2 See generally Coker v. Georgia, 433 U.S. 584 (1977); Ingraham 
V. Wright, U.S. 651 (1977); Gregg v. Georgia, 428 U.S. 153 
(1976): Furman v. Georgia. 408 U.S. 238 (1972): Landrum v. Moats, 
576 F.2h 1320 (8th Cir.), cert, denied, 99 S.Ct. 282 (1978); Mattis v. 
Schnarr, 547 F.2d 1007 (8th Cir. 1976), vacated as advisory opinion 
sub nom. Ashcroft v. Mattis, 431 U.S. 171 (1977); Jones v. Marshall, 
528 F.2d 132 (2d Cir. 1975); Day, Shooting the Fleeing Felon: State 
of the Law. 14 Crim . L. Bull. 285 (1978); Comment, Deadly Force to 
Arrest: Triggering Constitutional Review, 11 Harv. C. R. — C. L. L. 
Rev. 361 (1976).

3 See generally Paust, Does Your Police Force Use Illegal Weapons? 
A Configurative Approach to Decision Integrating International and 
Domestic Law, 18 Harv. Int’l L.J. 19 (1977).

4 On the question of “policy or custom,” police records are said 
to show, according to reports we do not find in this record, that 
during the preceding eight years Memphis police officers killed 
seventeen fleeing burglary suspects; thirteen were black and five 
were youths. According to the same rep>orts, Memphis police of­
ficers killed twenty-four individuals during this period in connec­
tion with crimes of violence or in self-defense; they attempted to 
use deadly force on 177 occasions, 114 of which were in connection

W e remand the case against the City to the District Court 
for reconsideration in light of Monell, including consideration 
of these questions.

No. 77-1089 Gamer v. Memphis Police Department, et al. c

with property crimes. See the original certified appellate record, 
document 45, in Wiley V. Memphis Police Dep’t, 548 F.2d 1247 (6th 
Cir.), cert, denied, 434 U.S. 822 (1977), as summarized in Comment, 
Deadly Force to Arrest: Triggering Constitutional Review, 11 Harv. 
C. R. — C. L. L. Rev. 361. 362 n.4 (1976); Report, Term. Adv. Com­
mittee to U.S. Civ. Rights Comm’n, Civic Crisis — Civil Challenge: 
Police-Community Relations in Memphis 81 (1978).