Order on Remand

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

WESTERN DIVISION

CLEAMTEE GARNER, etc. , 

Plaintiff,
V.

MEMPHIS POLICE DEPARTMENT, 
et a l . ,

Defendants.

NO. C-75-145

O R D E R S:

m
o

The Court has entered an Order for reconsideration 

of its February 29, 1980 Order in light of fiorther contentions 

of counsel for plaintiff in this cause. There has been submission 
or tender of further proof by plaintiff in light of plaintiff's 

position that the remand from the Court of Appeals entitles 

it to go forward with further proof in the cause. Both parties 

have indicated that the matter is now submitted for decision 

on the difficult issues presented in this controversy.

The effect of plaintiff's submission of fxirther 

proof by affidavit is that a professor and former New York 

City policeman, James J. Fyfe, believes and expresses the 

opinion based on his study and experience, that use of deadly 

force to apprehend fleeing non-violent suspects is "inconsistent 
with the concern for life characteristic of the operations 

of the rest of the criminal justice system;" that it does 

not deter criminal behavior nor increase "law enforcement 

effectiveness." He found the incidence of use of firearms 
in Memphis prior to the episode in question by police was

. and/or
. ,..et inV .-tered on.doc^etIbis doc'onent e^te --- ..

79 (a) FRCP on



considerably higher than in New York City, and that this
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rate applied particularly to so-called "property crimes."*
Professor Fyfe found that although only comprising

about 40% of the population, about 80% of "property crime

suspects" shot at by Memphis Police were black. He did not,

however, specify the actual number of blacks arrested and/or

convicted for alleged "property crimes" as compared to whites

during this period. Presimably burglary of residences or

robbery of victims by use of a weapon or placing the victim

in fear of his own life may be a "property crime" in the

Fyfe definition. Whether or not a higher ratio of blacks

shot at than the ratio of blacks to the total number of persons

arrested, indicted, or convicted for criminal conduct was

not definitely established by statistical evidence. That

Fyfe's statistical analysis showed a higher proportion of

blacks involved in or arrested for so-called "property crimes"

being fired upon than whites is not,in this Court's view,

determinative of any racial selectivity, particularly since

plaintiff's affiant concedes elsewhere that there is also
2/"differential racial involvement in police shootings."

Neither does Fyfe's finding that the rate of blacks being 

wounded or killed by police as higher than whites necessarily 

indicate any racial animus or selectivity if more blacks 

were proportionately involved than whites in the felonious 
conduct being analyzed. This data does not indicate racial 

proportions as to resisting arrest, being armed, or whether

\j Professor lyfe admitted his cotiparison was not "precise" in respect 
to "property crimes" conparison.
2/ Yjte. states such differential in New York City is accounted for 
by "different racial involvanent in the types of activities likely 
to precipitate shootings."

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3/

the suspect was under the influence of drugs or alcohol,

for example, or whether there were multiple offenders involved
at the time of a shooting.

The thrust of the Fyfe affidavit is that there 
should be a policy against allowing police to fire at fleeing 

felons or those reasonably suspected to have been involved 

in so-called "property crimes," because this would eliminate 
much of the alleged racial discrepancy in statistical evidence 

above noted. Obviously, if there were a policy or rule adopted 
by a proper authority limiting the use of deadly weapons, 

there would be a reduction in woundings or deaths, and particularly 

as to those in the delineated and restricted category placed 

"off limits" to police. Plaintiff's expert assumes that 

"property crimes" do not involve danger to police or citizens,’ 

and that, therefore, as a matter of policy, suspects so involved 
should not be placed in fear of being shot. This assumption, 

however, is not so easily drawn - how does a police officer 

responding to a home burglary call, for example, know whether 

there has been,or may be in connection therewith,an act of 

violence committed to a home occupant, or that a homeowner 

or property owner may not have felt justified in using violence 
to respond to an assault upon his home or property?

The Court does not adopt Professor Fyfe's conclusions 

that Memphis Police were, at the time in question, more likely 
to shoot "unthreatening" blacks than "^threatening" whites.

Such conclusion cannot reasonably be drawn from the type 

of statistics referred to in the record; nor is it clear 
what "unthreatening" means -- if the suspect assaulted a 

victim, or placed in jeopardy a property owner's life, but

3/ See paragraph #13 of his affidavit to this effect.

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not the police, is he defined as "unthreatening?" Furthermore, 

as was indicated in considering the facts of the instant 

case, a police office simply cannot clearly determine at 

night or in darkness whether a suspect is armed or has been 
armed with a deadly weapon when involved in the suspected 

felony. The bias of plaintiff's expert is apparent in his 

last conclusion, "it was very wrong that the officer had 

been told to do what he did," (a conclusion drawn not from 

the record in this case, but from a brief account of facts
A/in an appellate decision) and that Garner was dead "because 

of policy and training which authorized the summary shooting 

of non-dangerous suspects on the basis of suspicion or probable 

cause."

This Court does not believe that the additional 

tender by plaintiff should properly be taken into account 

for the reasons set forth in the Court's Order (and Opinion) 

dated February 29, 1980, but even giving it full consideration, 
the conclusion heretofore reached is not changed. The facts 

of this case did not indicate to Officer Hymon that Garner 

was "non-dangerous."

The City cannot be held liable in this case absent 

a showing of direct responsibility for its improper action.

Wilson V. Beebe, _____ F. 2d _____ (6th Cir. 1980). No improper

action by Officer Hymon has been demonstrated for the reasons 
heretofore stated. The very question involved in this case 

was recently decided by Chief Judge McRae of this District 

in Campbell v. City of Memphis, No. 79-2508 (March 25, 1981), 

who held:

The Meirphis Police Department's deadly force policy, 
inter alia, authorized police after having made known their

_4/ The Sixth Circuit decision, dated June 18, 1979, made no factml 
reference to practices of the City except to indicate Hymon fired 
at the i^jper part of the body of the fleeing siispect, "as he was trained 
to do."

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identity and purpose, to use deadly force:

To apprehend a fleeing person, after exhausting 
every other reasonable means of prevention, 
apprehension, or defense, when the officer has 
reasonable cause to believe the suspect has 
coomitted a felony which is either a burglary 
in the first, second, or third degree, or a 
felony involving an actual or threatened attack 
which the officer has reasonable cause to 
believe could resxjlt, or has resulted, in death 
or serious bodily injury.

As plantiffs stress, this motion does not question the 
xise of deadly force by police officers against suspects who 
forcibly resist arrest, who pose a threat to the life or 
bodily secxjrity of the arresting officers or other persons, 
or the use of deadly force to apprehend persons siaspected of 
felonies involving violence. Instead, "[t]he only issue 
presented here in the constitutionality of using deadly 
force against a property crime suspect, who has not engaged 
in violenc.”

Plaintiffs contend that the deadly force policy of 
the Moiphis Police Department is mconstitutional on 
several grounds. First, they argue that use of deadly 
force against a non-violent property crime suspect is 
cruel and unusual pinishnent. Second, they argue that this 
policy violates the equal protection clause of the Fourteenth 
Amendment. Third, they contend that the use of deadly force 
against a non-violent property crime sxispect violates the 
due process clause of the Fourteenth Anendment. Fourth, 
they argue that lose of deadly force to arrest a non­
violent property crime suspect is an unreasonable 
seizure.

.... In accordance with Qjnningham, this Court holds 
that the deadly force policy of the MFmphis Police 
Department does not violate the equal protection clause 
of the Fourteenth Amendment becaiase of not allowing deadly 
force to be used against fleeing misdaiieanants.

The definition of the goal to be served by the deadly 
force policy becomes important. Clearly, a goal to be 
served by the deadly force policy of the Mecnphis Police 
Department is the prevention of all future felonies. As 
such, the deadly force policy is not overinclusive. See 
discussion in Coiment, Deadly Force to Arrest: Triggering
Constitutional Review, 11 Harv. C.R. - C.L.L.Rev. 351, 
375-380 (1976).

The dissenting jiodges in Mattis (v. Schnarr, 547 F, 2d 
1007 (8th Cir. 1976)), criticized the majority for failing 
to identify the interests of the state which should be 
balanced against the felon's ri^t to life. The dissent

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said these state interests ''include effective law enforce­
ment, the apprehension of criminals, tl^ prevention of crime 
and the protection of members of the general populace who, 
like fleeing felons, also possess a ri^t to life." Id..
1023. ---

The dissenting judges in Mattis also criticized the 
majority for a "single-minded foois on the seemingly 
absolute right of an individual to life." Id., 1022.
After noting that life is filled with contradictions and 
obstacles, the dissent noted, in a statement quoted by the 
Sixth Circuit in Wiley at 1253:

There is no constitutional right to conmit . 
felonious offenses and to escape the consequences 
of those offenses. There is no constitutional 
ri^t to flee from officers lawfiiLly exercising 
their authority in apprehending fleeing felons.

Mattis, 1023.

■pie dissent in Mattis, with which the Sixth Circuit agreed 
in Wiley, points out that the interests of the state in 
effective law enforcement, the apprehension of criminals, 
and the prevention of crime outweigh the interests of the 
fleeing felon in this matter. As noted earlier, deadly 
force may be used only after the officer has warned the 
fleeing felon to halt, and only if the officer reasonably 
believes that no lesser means will prevent the escape of 
the fleeing felon.

"No court has ever specifically found force necessary 
to effect arrest to be unreasonable under the fourth 
amendment." Deadly Force to Arrest: Triggering
Constitutional Review, supra, 384, 385^

Judge McRae concluded (after citing the Sixth Circuit cases

noted in this Court's prior Orders) that similar constitutional
attacks made by plaintiff in Campbell to those made on behalf
of Garner were meritless.

This Judge recognizes that the common law rule 
adopted in Tennessee as to use of deadly force on fleeing 

felons may in some circijmstances be deemed harsh or disagreeable 
to other jurisdictions and to some judges, but the policy 

determination should be a legislative decision not a judicial 
one. See Alaska v. Sundberg. 611 P.2d 41 (1980) and Landrum 
V. Mo a t e s , 576 F.2d 1320 (8th Cir. 1978). Jurisdictions 

may have strongly differing views on imposition of or abolition 

of the death penalty in any particular felony situation. Again,

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those views should be expressed legislatively as a matter 
of policy, not by a trial judge attempting to apply his view 

of the law to a given set of facts. See Davis v. Balson,

467 F.Supp. 842 (N.D.Ohio 1978), and Wolfer v. Thaler, 525
5/

F.2d 977 (5th Cir. 1976).
The answer to the first question posed by the appellate

court in remand is in some doubt. The answer may now, in

light of subsequent appellate interpretations, be "no” -

a city may not claim a good faith immunity in a 1983 action.

See Shuman v. City of Philadelphia, 47 U.S.L.W. 2720 (E.D.Pa.

1979), and Bertot v. School District, 47 U.S.L.W. 2336 (10th

Cir. 1978). Even if the answer were "no,” however, this

response would not impose liability upon the City in the

circumstances of this case. The City may not claim immunity

from liability simply because of the good faith action of

its agent. Officer Hymon. Owen v. Independence, 445 U.S.

622, 48 U.S.L.W. 4389 (1980). The answer is in doubt, however,

despite O w e n , supra, because the City itself was apparently

relying upon the Tennessee law as it had been interpreted

by the Federal as well as State courts concerned. Compare

City of Newport v. Fact Concerts, U.S. , 49 U.S.L.W.
6 /

4860 (1981).

The use of deadly force \ander Tennessee law under 

the circumstances of this case where the officer was attempting 
to apprehend a burglary suspect, whom he did not definitely 
know was unarmed, and when he did not know if some violent 
offense had been committed in the course of a burglary, was 

permissible and constitutional in this Court's view.

V  A particixLar state's view of the validity of the death penalty 
may, of coijrse, effect its viav of the issues involved in this case.

6/ No pmitive damage could be awarded against the City.

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The question of use of hollowpoint bullets does 

not require a constitutional determination imder the facts 

of this case; it had no causative relation in this case, 

because whatever kind of ammunition had been used, the result 

would have been the same. If required to answer the question, 

however, the answer would be "yes" as previously determined.
Since the answers to questions one through three 

are as indicated, the action taken would not render the City 

of Memphis liable for the conduct of its Police Officer,

H3mion, in this case. There was demonstrated no constitutionally 

impermissible "custom or practice" in the record.

The Court has attempted to deal with the difficult 

and even painful issues involved in this case in light of 

the remand. Upon reconsideration, judgment is rendered for 

the City of Memphis, primarily because of previous decisions 

by the Court of Appeals in Wiley v. Memphis Police Department,

548 F.2d 1274 (6th Cir.), cert, denied, 434 U.S. 822 (1977); 

and Beech v. Melancon, 465 F.2d 425 (6th Cir. 1972), and 
the persuasive reasoning in Ciinningham v. Ellington, 323 

F.Supp. 1072 (W.D.Tenn. 1971), and Campbell v. City of Memphis, 

supra.
f

It is so ORDERED this rpfil day of /jJic

1981.

IRY W/\WELLFORD, JUDG^/ 
UNITED STATES DISTRICT/COURT

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