Supplemental Memorandum Submitted by Defendants; Correspondence from Winter to Turner Re: Amicus

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

WESTERN DIVISION

CLEAMTEE GARNER,
Plaintiff,

VS.
MEMPHIS POLICE DEPARTMENT, et al, 

Defendant.

NO. C-75-145

SUPPLEMENTAL MEMORANDUM SUBMITTED 
BY DEFENDANTS

The Plaintiff has filed a Memorandum subsequent to the oral 
argument on December 1^, 1979, at the request of the Court further 
outlining the issues which he submits require additional discovery 
and elucidation at trial. Plaintiff breaks down the areas of inquiry 
and proof into certain categories such as Racial Discrimination, 
Adequacy of Memphis Police Department Training, Intra Departmental 
Investigation and Discipline, etc. Although it may be somewhat repe­
titious, since the points about to be raised have been touched upon in 
a previous Memorandum submitted by Defendants and in oral argument on 
December 14, 1979, Defendants are nevertheless constrained to elabo­
rate the reasons why a further hearing is unnecesary.

In its opinion in this case, the Court of Appeals reversed 
and remanded the case against the City for reconsideration by the 
District Court in light of Monell v. Department of Social Services. 
436 U.S. 658 (1 9 7 8). They went on to say that Monell holds that City 
may be held liable in damages under Section 1983 for constitutional 
deprivations that result from a ’’policy or custom” followed by the 
City. After reading this opinion numerous times it is very difficult 
for counsel to understand the distinction the Court'is making between 
the liability of the individuals and the liability of the City. The 
Appellate Court affirmed the District Court’s judgment dismissing the



case against the individual Defendants. If the individual Defendants 
are not liable, then on what basis would the Ci^y be liable? It was 
held in Monell and Rizzo v. Goode. H23 U.S. 362 (1976), that a govern­
mental entity is liable under Section 1983 only if its policies or 
customs are the actual cause of the plaintiff's injury. Also see 
Ohland v. City of Montpelier. 46? F.Supp. 324, 344 (1979). It would 
seem rather clear and axiomatic that if the Officer was justified in 
using deadly force under the circumstances in this case, the City's 
policy or custom would hardly give rise to a claim of constitutional 
deprivation. On the contrary it would seem to be an approval of the 
City's customs and policies.

The Court of Appeals goes on to say: "Our previous deci­
sions do not establish the constitutionality of TCA Section 40-808, 
permitting a City to authorize its officers to use deadly force 
against a fleeing felon . . . ." There can be no question that the 
Court has held the statute to be constitutional —  at least in some 
respects. Again, it is most difficult to see how a distinction can be 
made as to the constitutionality of a statute as it relates on the one 
hand to individuals and on the other to a municipality. The previous 
decisions to which the Court refers are Beech v. Melancon. 465 F.2d 
^25; Qualls v. Parrish, 534 F.2d 690; and Wiley v. Memphis Police 
Department, 548 F.2d 1247. It is interesting to note in Wiley that in 
discussing that category of individuals and entities which were 
entitled to rely upon the constitutionality of TCA Section 40-808 it 
included the City. The Court said, beginning at page 1254:

"We are of the opinion further that MPD, the 
City» the Mayor, and the former Mayor, and the 
Chief of Police had the same right to rely on 
the law of Tennessee and the decisions of this 
Court and the decision of the three-Judge Court 
in formulating their policies. Also, they 
could rely on the presumption that the 
Tennessee statute was constitutional and on the 
fact that no court at that time had ever held 
that statute or a similar statute to' be uncon­stitutional." (Emphasis ours.)

In discussing Qualls and Wiley the Court of Appeals said: 
"The essential holding of these cases was that an individual officer

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has a qualified privilege or immunity from liability for constitu­
tional claims based on good faith performance of his duties in 
accordance with statutory or administrative authority, a holding sub­
sequently approved by the Supreme Court in Butz v. Economou, 438 U.S. 
4 7 8, 596-508 (1 9 7 8)." Then the Court posed the question of whether a 
municipality has a similar qualified immunity of privilege based on 
good faith under Monell. At the oral argument before this Court on 
the question of whether a hearing was necessary, counsel for Defen­
dants referred to the case of Owen v. City of Independence, Missouri, 
589 F.2d 335 (CA 8, 1978), which held that a municipality does in fact 
have a qualified immunity based upon good faith and in so deciding the 
Court discussed Monell at length. Also mentioned was Leite v. City of 
Providence, 435 F.Supp. 585 (R.I. 1978), which has dictum to the same 
effect.

Additionally, Defendants call to the Court’s attention the 
recent cases of Sala v. County of Suffolk, 604 F.2d 207 (CA 2, 1979); 
Ohland v. City of Montpelier, supra; and Huemmer v. Mayor and City 
Council, etc., 474 F.Supp. 704 (1979) > all of which are in accord with 

There is also dictum in Gross v. Pomerleau. 465 F.Supp. II67 

(1 9 7 9), dealing with good faith immunity under Section I9 8 3.

It was pointed out at the oral argument that Owen v. City 
of Independence, Missouri, supra, is on appeal to the Supreme Court 
of the United States. It would certainly be helpful to await the 
results of the Supreme Court’s action in the Owen case before pro­
ceeding further, because if they find that the City has immunity 
based upon good faith under Section 1983 then that would be the only 
real issue in the case at bar. This would be a fact question with the 
standard of good faith immunity being applied as enunciated by the 
Supreme Court in O’Connor v. Donaldson. 422 U.S. 563 (1975); Wood v. 
Strickland, 420 U.S. 308 (1975); and Scheuer v. Rhodes. 4l6 U.S. 232 
(1974).

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In discussing this standard the Court in Gross v. Pomerleau 
stated at page 1175:

"The standard for good faith immunity in Sec­
tion 1983 actions was recently addressed by the 
Supreme Court in O'Connor v. Donaldson. 422 
U.S. 563, 95 S.Ct. 2466, 45 L.Ed 2d 396 (1975), 
and Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 
9 9 2, 43 L.Ed. 2d 214, reh. denied, 421 U.S. 
9 2 1, 95 S.Ct. 1 5 8 9, 43 L.Ed. 2d 790 (1975). 
In O'Connor, the Court held that a State Mental 
Hospital's Superintendent could be held per­
sonally liable for monetary damages only if he 
"knew or reasonably should have known that theaction he took within 
responsibility would 
tional rights of (the 
the action with the 
cause a deprivation of 
other injury to (the 
577, 95 S.Ct. at
Strickland, 420 U.S.

duty

his sphere of official 
violate the constitu- 
patient), or if he took 
malicious intention to 
constitutional rights or 
patient)." 422 U.S. at 

2 4 9 4, citing Wood v. 
at 3 2 2, 95 S.Ct. 9 9 2. An 
to anticipate unforesee-official has "no

able constitutional developments," 422 U.S. at 
577, 95 S.Ct. at 2495, and good faith reliance 
on a policy which later is held unconstitu­
tional cannot lead to liability for monetary 
damages where the officials and individuals 
responsible for devising and implementing that policy did so without malice.
”In Wood V. Strickland, supra, the Court elabo­
rated a good faith immunity test to be applied 
to the conduct of school board members:

"A compensatory award will be appropriate 
only if the school board member has acted 
with such an impermissible motivation or 
with such disregard of the student's 
clearly established constitutional rights 
that his action cannot reasonably be 
characterized as being in good faith.

"420 U.S. at 3 2 2, 95 S.Ct. at 1001. Mr. 
Justice Powell, in a separate opinion, phrased 
the standard for qualified immunity of a 
government official as "whether in light of the 
discretion and responsibilities of his office, 
and under all of the circumstances as they 
appear at the time, the officer acted reason­
ably and in good faith." 420 U.S. at 330, 95 
S.Ct. at 1005 (Powell, Jr., concurring in part 
and dissenting in part). Aside from plain­
tiff's broad allegations, there is nothing in 
the record to indicate that the municipal and 
medical defendants, or the court official, 
acted in disregard of plaintiff's constitu­
tional rights. While each of them was involved 
in drafting, implementing, recommending or 
applying the policies in the Memorandum, there 
is nothing in the record which links them 
directly with plaintiff's initial arrest and 
ultimate commitment. Although Monell, supra, 
would apparently allow Section 1983 liability

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for an unconstitutional policy such as the 
Memorandum, it does not abrogate the good faith 
immunity defense which these defendants mav successfully invoke." ^

The Court can decide the good faith immunity question on 
the proof heretofore introduced. The action as initially filed was 
against the Memphis Police Department, City of Memphis, Mayor Wyeth 
Chandler, and Director J. W. Hubbard. The City acts through its 
officials. Since the Court found that Mayor Chandler and Director 
Hubbard were not liable, this would seem to indicate that they acted 
in good faith. It should also be pointed out that another City repre­
sentative, Captain John A. Coletta testified. He was a member of the 
Memphis Police Department and in charge of the Training Academy. He 
testified about the procedure used in connection with the Training 
Program of Police Officers and how the decision was made to change to 
hollow point ammunition. In any event, there is ample proof avail­
able for the Court to make a determination of whether these officials 
acted in bad faith and with malice toward the deceased.

The Court of Appeals also asked this Court to address 
itself to the question of whether a municipality’s use of deadly 
force under Tennessee law to capture alleged nondangerous felons 
fleeing from nonviolent crimes is constitutionally permissible and 
whether the municipality’s use of hollow point bullets is constitu­
tionally permissible. If the municipality acted in good faith, it 
would seem to be immaterial whether the deadly force policy or the use 
of hollow point bullets was or was not constitutional. As the Supreme 
Court stated in OlConnor, good faith reliance on a policy which later 
is held unconstitutional cannot lead to liability for monetary 
damages where the officials and individuals responsible for devising 
and implementing that policy did so without malice.

There is certainly no indication at this time or at the 
time of the incident involved herein that either the deadly force 
policy as it relates to alleged nondangerous felons and the use of

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hollow point bullets was unconstitutional. On the contrary Wiley and 
the other cases seem to indicate that the deadly force policy was. 
Furthermore, this Court found that the use of hollow point ammunition 
by the Memphis Police Department was justified under the circum­
stances. The test applied was whether the Memphis Police Depart­
ment’s decision to use the hollow point bullet with high velocity is 
such conduct as to "shock the conscience of the Court". There was 
ample proof offered on this question and it is very difficult to see 
how anything additional would change the picture, especially in view 
of the fact that at the time other police departments were using 
hollow point ammunition as well as the Federal Bureau Investigation.

As to the fourth question posed by the Court of Appeals in 
its opinion, it would likewise be pretermitted since the only real 
issue is the good faith question.

In conclusion. Defendants submit that all of the areas of 
inquiry and proof suggested by Plaintiff in his Memorandum are 
totally unnecessary since the only real question may be the good 
faith one, and there is ample proof in the record upon which the Court 
can make a finding.

Respectfully submitted.

Clifford D. Pierce, Jr.
City Attorney
City Hall, 125 North Main Street Memphis, Tennessee 38103

_________ / —Henry L. /Klein
Staff Attorney, City of Memphis 
Suite 3500, 100 North Main Building 
Memphis, Tennessee 38103 
901-523-2363

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CERTIFICATE OF SERVICE

I, Henry L. Klein, do hereby certify that a copy of the 
foregoing Supplemental Memorandum Submitted by Defendants has been 
mailed to Mr. Steven L. Winter, Suite 2030, Ten Columbus Circle, New 
York, New York, 10019, and to Mr. Walter Bailey, 901 Tenoke Building,

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egal

)\

efenseF■■H und
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC. 
10 Columbus Circle, New York, N.Y. 10019 • (212) 586-8397

January 18, 1980

James P. Turner, Esq.
Deputy Assistant Attorney General 
Civil Rights Division 
United States Department of Justice 
Washington, D.C, 20530
Re: Garner v. Memphis Police Department
Dear Mr. Turner:
In our previous correspondence you asked me to keep you 
informed of any developments in the above noted case, 
in which we have asked the Justice Department to parti­
cipate as amicus curiae. In late Oct®ber, I had informed 
you that the court had requested ora 1 argument on the 
question of whether plaintiff would be provided further 
hearings and a trial now that the case is back in the 
district court on remand. Oral argument was held on 
December 14, 1979. Judge Wellford was extremely recep­
tive to our arguments; fortunately our case was strength­
ened by the recent decision in Popow v. City of Margate, 
476 F. Supp. 1237 (D.N.J. 1979). At the conclusion of
the argument, the judge requested a further memorandum des­
cribing in greater detail the areas that plaintiff would 
seek to elucidate at trial. I am enclosing a copy of the 
memorandum filed with the court.
As you will note in the memorandum, a major focus of any 
subsequent trial, if granted, will be on a comparison 
between the policies, practices, and training of the 
Memphis Police Department with regard to use of deadly 
force with those of other police departments. It is in 
this area that we believe that the Department can provide 
the greatest assistance to both the court and the plain­
tiff. We urge the Department to participate in this case, 
We eagerly await that decision.
I will keep you informed of any further developments.

Sincerely,
' J  i\ i - '
Steven L. Winter

S LW:mmcc: Walter L. Bailey, Jr., Esq.
Enclosure

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