Petition by Defendants-Appellees for a Rehearing and Suggestion for Rehearing En Banc

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

CLEAMTEE GARNER, )
)

Plaintiff-Appellant, )
)VS. )
)MEMPHIS POLICE DEPARTMENT, )

ET AL., )
)

Defendants-Appellees. )

CIVIL LAW 
NO. 81-5605

PETITION BY DEFENDANTS-APPELLEES 
FOR A REHEARING AND SUGGESTION 

FOR REHEARING EN BANC

Clifford D. Pierce, Jr. 
City Attorney 
Room 314 
125 N. Main St,
Memphis, TN 38103
Henry L. Klein 
Staff Attorney 
1500 1st TN Bldg. 
Memphis, TN 38103
Arthur J. Shea 
Deputy City Attorney 
Room 314 
125 N. Main St.
Memphis, TN 38103



PETITION FOR A REHEARING AND SUGGESTION 
FOR A REHEARING EN BANC

I express a belief based on a reasoned and studied 
professional judgment that the panel decision is contrary to the 
following decisions of this Circuit and the United States Court 
of Appeals for the Sixth Circuit and that consideration by the 
full Court is necessary to secure and maintain uniformity of 
decisions in this Court:

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

Beech v. 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); and 
Wiley V .  Memphis Police Department, 548 F. 2d, 1247 

(6th Cir. 1977) cert, denied, 434 U. S. 822 (1977).
I express a belief based on a reasoned and studied pro­

fessional judgment that this appeal involves one or more ques­
tions of exceptional importance:

I.
Can the United States Court of Appeals 

find the Tennessee Fleeing Felon Statute,
TCA §40-808, unconstitutional and disregard of 
its previous rulings upholding the constitu­
tionality of said statute?

II.
Can the United States Court of Appeals dis­

regard the fact that in one of its previous cases 
it sustained the conclusions of law of the District 
Judge who had disposed of a Fourth Amendment 
argument holding it to be "meritless"?



Ill
Can this Court determine those crimes 

warranting the application of the Tennessee 
Fleeing Felon Statute, TCA 
this a determination which 
within the province of the

§40-808, or is 
lies exlusively 
legislative branch?

________Clifford- D.j'^Pi^rce, Jr, 
Attorney of. Record for 
Def endants-^Appellees

Henry L. Klein 
Attorney of Record for 
Defendants-Appellees

Attorney of Record for 
Defendants-Appellees



ARGUMENT

IN THIS CASE, THE UNITED STATES COURT OF APPEALS HAS 
RENDERED AN UNPRECEDENTED OPINION WHICH IS DIRECTLY CONTRARY TO 
PREVIOUS OPINIONS IN THIS CIRCUIT WHICH HAVE UPHELD THE CONSTITU­
TIONALITY OF THE TENNESSEE FLEEING FELON STATUTE, TCA §40-808.

The constitutionality of TCA §40-808 was first con­
sidered in this circuit by a three-judge District Court in 
Cunningham v. Ellington, 323 F.Supp. 1072 (W.D. Tenn. 1971). The 
facts in that case are similar to those in the case at bar in 
that they involve a shooting by the Memphis police which resulted 
in death after investigating a burglary attempt in which the vic­
tim was fleeing from arrest by the officers. It was contended 
that the statute was unconstitutional on its face because it 
permitted the use of cruel and unusual punishment in violation of 
the Eighth Amendment; that it was unconstitutionally over-broad; 
that it was an unconstitutional incursion with respect to a 
person's right to trial by jury, confrontation of witnesses and 
assistance of counsel; and that it violated the due process 
clause of the Fourteenth Amendment. These arguments were 
disposed of by the Court and the statute held to be 
constitutional in all respects. It is obvious from a reading of 
the opinion, that the three-judge Districct Court, carefully 
considered the statute in making its decision. Although a Fourth 
Amendment question was not raised, it can certainly be argued



that in considering the matter as carefully as the Court did, if 
the three judges had felt the Fourth Amendment was a basis for 
holding the statute unconstitutional, they would have done so sua 
sponte.

Likewise, this Court considered the constitutionality 
of the statute in Beech v. 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); and Wiley v. Memphis Police 
Department, 548 F. 2d, 1247 (6th Cir. 1977) cert, denied, 434 U. 
S. 822 (1977). Again, this Court gave very serious consideration 
to the constitutionality of TCA §40-808 and again it was upheld.

II.
THE UNITED STATES COURT OF APPEALS IS IN ERROR WHEN IT 

SAYS THAT THE FOURTH AMENDMENT QUESTION WAS NOT CONSIDERED BY 
THIS COURT PREVIOUSLY.

In the slip opinion in this case which was decided and 
filed June 16, 1983, the Court says as follows, at page 14:

"Our holding here under the Fourth Amend­
ment is not inconsistent with our holdings 
in Wiley v. Memphis Police Department, 548 
F.2d 1247 (6th Cir. 1977), and Beech v.
Melancon, 465 F.2d 425 (6th Cir. 1972), or 
the three judge District Court opinion in 
Cunningham v. Ellington, 323 F. Supp. 1072 
(W.D. Tenn. 1971), in all of which youths 
were killed by the Memphis police while 
fleeing from the commission of a burglary.
In each of those cases the Tennessee statute 
was drawn into question under the 'cruel and 
unusual punishment' clause of the Eighth 
Amendment and under the Fourteenth Amendment



as a matter of substantive due process.
In none of these cases was a Fourth 
Amendment question raised, discussed^ 
mentioned or decided. Fourth Amendment 
considerations were not argued. (Emphasis 
added. )
In the Memorandum Opinion entered by Judge Harry 

Wellford in Wiley v. Memphis Police Department  ̂ No. C-73-8 (W.D. 
Tenn., June 30, 1975), the Court stated as follows on page 22 of 
said Opinion:

"Plaintiff's Fourth Amendment claim here 
based on unreasonable 'seizure' of Berry 
is meritless. Certainly under these facts 
the officers had a right to arrest Berry 
and to search him for stolen prperty or 
weapons and to seize him and any stolen 
contraband. No federal case cited by 
Plaintiff has construed this amendment to 
apply to this type of situation. Terry v .
Ohio, 392 U.S. 1 (1968) involved a police­
man's stopping and frisking suspects under 
suspicious circumstances where no crime was 
committed in his presence nor yet reported 
to him.. Others involved suppression of 
illegally obtained narcotics or alleged 
kidnapping by authorities in a foreign juris­
diction. This court does not conclude that 
the policy of using all necessary force, 
including use of potentially deadly force to 
bring about arrest, as a last resort, of a 
fleeing felon is per se unreasonable and 
unconstitutional. As previously noted,
Cunningham v. Ellington, supra, has settled 
Plaintiff's Eighth Amendment 'cruel and 
unusual punishment' claim contrary to her 
contentions."
On appeal, this Court in its opinion refers to the fact 

that jurisdiction was invoked under 42 U.S.C. §§1981, 1983, 1985, 
1986, and 1988 and under the Fourth, Fifth, Sixth, Eighth, Thir­
teenth and Fourteenth Amendments to the Constitution. Wiley v . 
Memphis police Department, supra, 548 F.2d at 1248. In his 
opinion. Judge Weick goes on to say at page 1253:

5



"We are of the opinion that there was 
substantial evidence to support the 
factual findings of the District Court 
and they are not clearly erroneous. The 
Court's conclusions of law are correct."
(Emphasis added.)
Clearly, Judge Wellford had considered the Fourth Amen­

dment claim and clearly the Sixth Circuit had confirmed the 
findings.

It should also be noted that in the Brief for Appellant 
which was filed with this Court in Wiley, the Fourth Amendment 
question was extensively argued by able counsel (Brief for Appel­
lant pp. 68-73). This is a further indication that the Fourth 
Amendment was before the Court in Wiley.

Ill.
ANY CHANGE WITH REGARD TO THE USE OF DEADLY FORCE IN 

THE STATE OF TENNESSEE SHOULD BE LEFT TO THE STATE LEGISLATURE.
In Cunningham v. Ellington, supra, the three-judge Dis­

trict Court stated at page 651:
"Again the Court notes that any classi­

fication which would allow deadly force 
to be used against persons who have com­
mitted certain specified crimes, and not 
against other offenders would inevitably 
be subject to the same attack as plain­
tiff wages here. To abolish the use of 
deadly force altogether is to deprive 
the state and its citizens of their 
rights to security, safety and a feeling 
of protection. To pick and choose 
those crimes warranting the application 
of these statutes is the duty of the 
legislature. It involves a determina­
tion of the effect and seriousness of~ 
crimes on society and such a determina­
tion lies exclusively within the pro- 
^ n c e  of the legislative branch. It 
is not the role of a federal judge to 
legislate for the people of a state.
(Emphasis added.) 5



In Wiley v. Memphis Police Department  ̂ supra, this 
Court said at page 1252;

"The Eighth Circuit is the only Court 
to our knowledge which has ever held 
that such a statute, which is so nec­
essary even to elementary law enforce­
ment, is unconstitutional. It extends 
to the felon unwarranted protection, 
at the expense of the unprotected public.

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

CONCLUSION
Your Defendants contend in accordance with Rule 35 of 

the Federal Rules of Appellate Procedure, that the questions 
presented in this Petition are of the utmost importance, and the 
results reached in the panel's opinion are unprecedented. They 
pray that the United States Court of Appeals for the Sixth 
Circuit will rehear this en banc, reverse its previous decision, 
and affirm the action of the United States District Court in 
finding for the Defendants.

RespectJ submitted,

Clifford d I V p  ̂erc^"^ Jr.
Record for 

Defenc^nt^-Appellees

Henry L.' Klein 
Attorney of Record for 
Defendant-Appellees



Afcthur J. SJ>ea 
Attorney of Record for 
Defendant-Appellees

CERTIFICATION

I hereby certify that I have this 29th day of June, 
1983, forwarded a copy of the foregoing instrument to Mr. Jack 
Greenberg; Mr. James M. Nabrit III; and Steven L. Winter, Suite 
2030, 10 Columbus Circle, New York, New York 10019; and to Mr. 
Walter L. Bailey, Jr., Suite 901, Tenoke Building, 161 Jefferson 
Avenue, Memphis, Tennessee 38103, Counsel for Plaintiff- 
Appellant, by United States Mail, postage pre-paid, on the date 
shown above.

Henry L. Klein