Correspondence from Steven L. Winter to Walker L. Bailey

    egal efenseF
October 5, 1979

N A A C P  L E G A L  D E F E N S E  A N D  E D U C A T I O N A L  F U N D ,  I NC.
10 C o l u m b u s  Circle,  N e w  York,  N.Y.  10019 • (212) 586-8397

Walter L. Bailey, Jr. Esq.
Bailey Hicks and Bailey 
161 Jefferson Avenue 
Memphis, TN 38103
Re: Garner v. Memphis Police Department 
Dear Walter:
Please find enclosed a copy of our memorandum in support of the 
necessity for further hearings. Thanks for your though Is on this 
matter; as you will see, I have incorporated them in the 
memorandum.
Also, please find enclosed copies of both of my letters to 
Drew Days regarding Justice Department involvement in this 
case.
I will be away most of next week. I will contact you during 
the week of the 15th about our next move in this case.
Best regards.

Sincerely,
I

\ . ' •
Steven L. Winter

SLW:sch 
Enel.

(lonlt ihiitiiws (U r ilrili ic lihir for  (/..S', iiiroinr ln\ pinposcs

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it
was founded by it and shares its commitment to equal rights. LDF has had for over 20 years a separate Board, program, staff, office and budget.



egal efenseF
October 5, 1979

NAACP LEGAL DEFENSE AND EDUC ATIONAL FUND,  INC.
10 C o l u m b u s  Circle,  N e w  York,  N.Y.  10019 • (212) 586-8397

Hon. J. Franklin Reid 
Clerk, U. S. District Court

for the Western District of Tennessee 
Western Division 
950 Federal Building 
Memphis, TN 38103
Re: Garner v. Memphis Police Department et al Civ.No. C-75-145 
Dear Sir:
Please find enclosed the original and one copy of Plaintiff s 
Memorandum in Support of the Necessity for Further Hearings 
in the above-noted case. Also enclosed are two copies of a 
letter to the Hon. Harry W. Wellford. Please file them in 
accordance with the local rules.
Thank you prompt attention in this matter.

Sincerely, r

I r

Steven L. Winter
SLW:sch 
Enclosures
cc: Walter L. Bailey, Jr. Esq.

(. iw li i hiil io iis it ir  i lc i li ii  l i l i l r  jor V.S. i i i rom r lax jaitixxsrs

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People allhough it
was founded by it and shares its commitment to equal rights. LDF has had for over 20 years a separate Board, program, staff, office and budget.



egal efenseF■ ■ l u n d N A A C P  L E G A L  D E F E N S E  A N D  E D U C A T I O N A L  F U N D ,  I NC.
10 C o l u m b u s  Circle,  N e w  York,  N.Y.  10019 • (212) 586-8397

October 5, 1979

The Hon. Harry W. Wellford 
United States District Judge

for the Western District of Tennessee 
957 Federal Building 
Memphis, TN 38103
Re: Garner v. Memphis Police Department Civ. No. C-75-145 
Dear Judge Wellford;
Please find enclosed two copies of Plaintiff's Memorandum 
in Support of the Necessity for Further Hearings in the 
above-noted case.

Sincerely,
I

// I.  ̂̂  - V,.
Steven L. Winter

SLW:sch
cc: Walter L. Bailey, Jr., Esq.

Henry L. Klein, Esq.
Enel.

( .null ilnilioiis a ir  ilrilurlihir jo r  ILS. nuotm' lax jaiiposes

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND is not part of the National Association for the Advancement of Colored People although it
was founded by it and shares its commitment to equal rights. LDF has had for over 20 years a separate Board, program, staff, office and budget.



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.

X

Plaintiff,
V.

MEMPHIS POLICE DEPARTMENT; CITY 
OF MEMPHIS, TENNESSEE; WYETH 
CHANDLER, Mayor of Memphis, 
and JAY W. HUBBARD, Director 
of Memphis Police,

Defendants.

Civil Action No. C-75-145

X

PLAINTIFF'S MEMORANDUM IN SUPPORT OF THE 
NECESSITY FOR FURTHER HEARINGS

On August 10, 1979, this Court invited the parties to 
submit memoranda regarding whether further hearings are nec­
essary for the determination of the issues presented on remand. 
Plaintiff respectfully submits that further hearings are nec­
essary. It appears that they were contemplated by the Sixth 
Circuit in ordering a remand.

It is necessary to distinguish between the nature of 
the case on remand and the posture of the case as it was before 
this Court previously and on appeal. Previously, the case fo- |icused on the question of the constitutionality of the acts of j 
the individual defendant. Officer Hymon. There was some |
evidence adduced relating to the policies and practices of the ,I
municipal defendants and the effects of those policies on the j

j

conduct of Officer Hymon. However, this aspect of the case was 
secondary to the case against the individual officer.

In contrast, in its current posture, the case is 
purely one involving questions of systemic practices relating



to the use of deadly force by Memphis police officers. If the 
Court is to decide the systemic case, it must have systemic 
evidence. Plaintiff should be afforded the opportunity to 
supplement the record so that this Court can be provided with 
the necessary factual background to decide the difficult consti­
tutional issues of this case.

A. The Scope of The Issues Presented on Remand
The four general questions noted by the Sixth Circuit ido not exhaustively define the issues that remain to be liti­

gated. Rather, the panel opinion itself recognized the complex  ̂
nature of these questions. In remanding the case to the district 
court, it did not limit the remand to the four listed questions. 
Rather, it merely indicated that those four questions remain 
open after Monell. It remanded the case "for reconsideration in 
light of Monell, including consideration of these questions." 
Garner v. Memphis Police Dept., 60Q F.2d 52, 55 (6th Cir, 1979) 
(emphasis added).

Analysis of the issues suggested by the four general 
questions in turn suggests areas in need of further factual 
development. For example, in its second question, the Sixth 
Circuit indicated that the constitutionality of the use of 
deadly force under the Fourteenth Amendm.ent is still an open 
question. Plaintiff needs to be able to develop further 
evidence regarding the race of the victims and potential victims 
and the relevant circumstances in all incidents involving the 
use of deadly force by Memphis police officers in order to 
ascertain whether there is a Fourteenth Amendment violation.
There was evidence in the prior hearing that officers were, 
essentially, instructed to use their own judgment in determining 
when to use deadly force. If the leaving of this discretion to 
the individual officer in fact results in proportionately more 
blacks being shot than whites, controlling for similar cir-

-  2 -



cumstances, than it can be said that the municipal policy 
caused a constitutional violation. Avery v. State of
Georgia, 345 U.S. 559, 562 (1953)(discrimination in jury 
selection); Rowe v. General Motors Corp., 457 F.2d 348, 359 
(5th Cir. 1972)(Title VII: subjective determinations "are a
ready mechanism for discrimination").

Indeed, the Sixth Circuit was plainly concerned by 
this aspect of the case and contemplated the supplementation 
of the record. This was evidenced by the questions asked from 
the bench at oral argument and the discussion of the racial 
breakdown of the victims of Memphis police shootings in the 
panel's opinion. 600 F.2d at 55 n. 4. The court indicated 
that "[o]n the question of 'policy or custom,'" the record in 
this case was deficient in that it failed to provide the facts 
regarding the incidence of the use of deadly force by Memphis 
police officers, the numbers of resulting fatalities, and the 
circ\amstances of those deaths, including the race and alleged 
crimes of the victims. Id.

B. The Relevance of Supplemental Evidence on The 
Practices And Policies of Other Police 
Departments

The Sixth Circuit's second question also suggests 
another area in which the record needs to be supplemented. In 
determining whether the use of deadly force to stop an unarmed 
fleeing felon is unconstitutionally excessive, cf, Coker v, 
Georgia, 433 U.S. 584 (1977), or "shocks the conscience,"cf. 
Rochin v. California, 343 U.S. 165 (1952), the Court must first 
develop some standard against which this policy can be measured. 
Plaintiff must have the opportunity to develop evidence to 
enable the Court to formulate these standards. The testimony of 
experts and other evidence relating to the practices and 
policies of other police departments will be helpful to 
establish the enlightened professional judgment of police pro­

I

-  3 -



fessionals necessary to aid the Court in establishing these 
stardards. !

Evidence of practices of other police departments will | 
also be relevant to the other questions posed by the circuit 
court. Data on the use of hollow point bullets by other 
(3,0partments will be relevant to establish both the effects of 
the use of hollow points— whether they result in increased 
fatality rates— and the standards by which their acceptibility 
may be judged.

The practice of other departments in terms of policies 
and training will also be relevant to the applicability,as I
opposed to the availability/ of a good faith defense. That is, 
if a good faith immunity defense is available as a matter of 
legal principle— a question now sub judice in the Supreme Court, 
Owen V. City of Independence, M o c e r t . granted 48 U.S.L.W. 3189 
(1979),— the question still remains whether it is available in 
this case. This will turn on the factual findings regarding 
defendants' conduct. For example, if it can be shown that 
defendants' conduct in inadequately training Memphis police 
Qfficeirs in the use of deadly force caused the constitutional 
violation, the question will still remain whether the municipal 
conduct or "policy" was so inadequate as to preclude application 
of the good faith defense. This could be shown, for example, by 
proof that the training given Memphis police officers was so 
far below the standards accepted in police departments around 
the country that it gives rise to the inference that the 
defendant was deliberately indifferent to the effects of those 
failings on the victims. Of course, this could only be proven 
if plaintiff is allowed to develop further evidence on the 
training afforded in Memphis and the extent of training else­
where .

C. Other Factual Issues
Other factual questions remain, For example, there

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is the question whether the training provided to Memphis 
officers in alternatives to deadly force is inadequate and 
whether it results in the use of deadly force in situations, 
such as the instant case, where it was not necessary. The 
Sixth Circuit merely held that the individual officer had a 
good faith defense based on the fact that he used deadly force 
to "apprehend" a fleeing felon as he was taught. It did not 
indicate that the use of such force was justified in the 
instant case. The question of adequate training in this regard, 
as compared to the standards evidenced by the practices of 
other departments, is, thus, still open.

Still further factual issues are suggested by the 
Sixth Circuit's fourth question, which defendants concede is a 
factual one. First, there is the question of causation. Do the 
policies noted above result in the shooting deaths of unarmed 
fleeing felons? Second, there is the question of the interplay 
between the use of hollow points and the training afforded 
Memphis police officers in the use of deadly force. The Court 
did not previously address the question whether the interplay 
between the use of hollow points and the fact that officers 
are trained to shoot at the torso causes an unreasonable and 
unjustifiable risk of death. Finally, there is the question 
whether there is an unspoken policy, deduced by the officers 
from the type and content of their training, that officers who 
use their guns should shoot to kill. In Wiley v. Memphis Police; 
Department, 548 F .2d 1247 (6th Cir. 1977), the court quoted :

I
the district court's opinion which indicated that the |
defendants—  |

I

testified that they shot without 
attempting to wound or incapacitate the 
fleeing two, and that they were 
trained whenever they use their 
firearms to "shoot to kill. "

Id. at 1250.Plaintiff should be afforded the opportunity to show

-  5 -



the existence of such a policy and that it causes the un­
warranted deaths of unarmed fleeing felons.

Plaintiff does not dispute the defendants' assertion 
that this Court will ultimately have to decide issues of law. 
But the issues in this case are better characterized as mixed 
issues of fact and law. Plaintiff contends that he must be 
afforded the opportunity to put on all the evidence relevant 
to the determination and application of those complex issues. 
Accordingly, plaintiff respectfully submits that further 
discovery and hearing are necessary to resolve the questions 
posed by the Sixth Circuit on remand.

Respectfully submitted,

STEVEN L. WINTER
10 Columbus Circle 
Suite 2030
New York, N.Y. 10019

WALTER LEE BAILEY, JR.
161 Jefferson Avenue 
Suite 901, Tenoke Bldg. 
Memphis, Tennessee 38103

Attorneys for Plaintiff

CERTIETCATE OF SURVLCE
1 hereby certify that a copy of the foregoing PLAIN­

TIFF'S MEMORANDUM IN SUPPORT OF THE NECESSITY FOR FURTHER 
HEARINGS has been served by United States mail, postage pre- j
paid, to Henry L. Klein, Esq., 100 No. Main Building, Suite 3500,

1Memphis, Tennessee 38103, this 5th day of October, 1979. |

Steven L. Winter