Summary of Senate Bill 741 and House Bill 417

    SENATE BILL NO. 741 BY DAVIS 
HOUSE BILL NO. 417 BY DREW

AN ACT to amend Tennessee Code Annotated, Section
40-7-108, relative to the use of deadly force 
by an arresting officer.

SUMMARY:

NOTE:

T.C.A. 40-7-108 (Resistance to officer) currently 

provides that the officer may use all the necessary means 

to effect the arrest if, after notice of the intention to 

arrest the defendant, he either flees or forcibly resists. 

This bill provides that the foregoing shall constitute 

the only conditions wherein the officer may use deadly 

force and even under those conditions such force may 

be used only:

1) When the officer has reasonable cause to 

believe such force is necessary to prevent loss of life

or serious bodily injury to himself, or another individual;

2) When the officer has reasonable cause to 

believe that a felony offense against the person involving 

the actual or threatened use of physical force has been

or is being committed, and specifically includes a sus­

pected felon who is in the perpetration of or fleeing such 

offense. Such offenses shall include, but are not limited 

to: any degree of murder, manslaughter, mayhem, rape,
I

any degree of criminal sexual assault, robbery, felonious 

assault, arson, kidnapping, or any degree of burglary 

or any attempt to commit or attempt to commit any of the 

included offenses.
However, in the above enumerated instances when 

use of deadly force is permitted, the officer cannot be 

justified in using such force if other reasonable means 

of apprehension and control are available to him in 

effecting the arrest.
The U.S. Court of Appeals for the Sixth Circuit 

in the case Cleamtee Garner vs. Memphis Police Department 

declared T.C.A. Section 40-7-108 unconstitutional in 

violation of the Fourth and Fourteenth Amendments to the 

United States Constitution. On appeal from the state,

35



SB NO. 741 BY DAVIS
HB NO. 417 BY DREW
PAGE TWO

SUMMARY; 
(contd.)

the case was argued before the United States Supreme 

Court in October of 1984 and was decided on March 21, 
1985. A syllabus of the Court's ruling is attached 

below.

PRESENT LAW:

40-7-108 . R e s is ta n c e  to  o ffic e r . —  If, a fter notice o f th e in ten tio n  to arrest 
the defendant, he e ith er  flee  or forcib ly resist, th e  officer m ay u se a ll th e  
necessary m eans to  effect th e arrest. [Code 1858, § 5040; S h an ., § 7000; Code 
1932, § 11539; T .C .A . (orig. ed .), § 40-808 .]

add new language

FISCAL NOTE: FRC reports minimal fiscal impact.

SUPREME COURT OF THE UNITED STATES

Syllabas

TENNESSEE n  GARNER ET AL.

APPEAL FROM THE UNITED STATES COURT OF APPEALS FOB 
THE SIXTH CIRCUIT

No. 83-1035. Argued October 8 0 ,1984-D «aded M irth 27, 1965*

A  Tennessee itita te  providea that if, after a poUce officer has given notice 
of an intent to arrest a criminal suspect, the suspect flees or forcibly r»> 
aista, ‘th e  officer may use all the necessary means to effect the arrest” 
Acting under the authority of this statute, a Memphis police officer shot 
and killed appellee-respondent Gamer's son u , after being told to h alt 
the son fled over a tena  at night in the backyard of a house be was sus­
pected of burgiariong. The officer used deadly force despite being *Yea- 
aonably sure’* the su sp e c ts^  unarmed and thinking that be was 17 o f l8  
y e m  old and of ̂ g h t build. The father subeequenUy brought an action 
m Federal D istrict Court, seeking damages under 42 U. S. C. 119S3 for 
asserted violations of his son’s constitutional rights^ The D istrict Court 
held that the statute and the officer's actions were constitutionaL The 
Court of Appeals reversed.

H eld' The Tennessee statute is unconstitutional insofkr as it autborizei the 
use of deadly force against, as in this c s m , an apparently unarmed, 
nondangerous fleeing suspect; such force msy not be used unless neees- 
t y y  to prevent the escape and the officer has probable cause to believe 
that the suspect poees a cgnifleaiit threat of death or serious phyacal 
h^'ury to the officfa* or others. Pp. 5-20.

(a) Apprenension by the use of deadly force is a seizure subject to the 
Fourth Amendment's reasonableness requirement. To determine 
whether such a seizure is reasonable, the extent of the intrusion on the 
suspect's rights under that Amendment must be balanced against the 
governmental interests in effective law enforcement. This 
process demonstrates that, notwithstanding probable cause to seize a

*Together with No. 83-1070, Utmpkis Polie* D*partmmt gt oL % 
Garrur gt al., on certiorari to the same court.

I

36



{ .

SB NO. 741 BY DAVIS
HB NO. 417 BY DREW
PAGE THREE

n  TENNESSEE u GARNER

SyOabua

•uspect, an officer may not always do ao by WHng him jh e  use of 
deadly force to prevent the escape of all febnv auroect* the
creumstanoea, is conatitntionally nnr»«*nnmhle. ^ jo .

(b) The Fourlh Amendment, for purpoees of t>ii« ease, should not be 
consumed in light of the coznmon*law rule allowing the of whateror
force if necessary to effect the arrert of a fleeing felon. Changes in the
legal and technological context mean that that rule is distorted 
beyond recognition when literally applied. Whereas felonies were fbir* 
meriy capital crimes, few are now, or can be, and many crimes classifled 
as misdemeanors, or nonexistent, at common law arc now M m iff 
Also, the common-law rule developed at a time when weapons were nidi* 
mentary. And, in light of the varied roles adopted in the States 
ing s long-term movement sway from the common-law rule, partieular)y 
in the police departments them selves, nile is a dubious of
the constitutionality of the Tennessee statate. There is no indicatian 
that holding a police pracUce such as that ‘^iK'ri^ri by the statute 
reasonable will severely hamper effective law enforcement. Pp. 10-18.

(c) While burglary is s  serious crime, the officer in th ii ««nnld
reasonably have believed that the suspect—young, slight, and un­
armed—posed any threat. Nor does the fret that an unarmed suspect 
has broken into a dwelling at night mean be ia dangerooa.
Pp. 18-20.

710 F . 2d 240, aiSlnned and remanded.

White, J ., delivered the opinion of the Court, in which Bsennan, Has- 
SHAU., Blacsmun, Powell, and Stevens, JJ., joined. O'Connor, J ., 
filed a diaaenting opinion, in which Burger, C. J ., and Rzenqubt, J ., 
Joined.

37



'mrmwmmmM

-: :.'̂ <}:C-

Pr«£ll«d for Introduction on 4/1/85

BOUSE BILL MO. 1062

By
Knnt

AN ACT relative to the force a law 
enforcement officer nay uae 
to effect an arrest and to 
amend Tennessee Code 
Annotated# Section 40*7*108.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE: 
SECTION 1. Tennessee Code Annotated# Section 40-7*108, is 

amended by deleting the section in its entirety and substituting 
instead the following:

Section 40-7-108.
(a) If, after notice of the intention to 

arrest the defendant, he either flees Or forcibly 
resists, the officer siay use all the necessary 
skeans to effect the arrest.

(b) Deadly force is authorized to effect an 
arrest only if all other reasonable means of 
apprehension have been exhausted and one (1) or 
more of the following conditions exist:

(1) The officer has reasonable cause 
to believe that there is a substantial risk 
that the person to be arrested will cause 
death or serious bodily harm or will commit 
a dangerous felony if his apprehension is 
delayed; or

43088c r



(2) The officer has reasonable cause to 
believe that the person to be-arrested is armed 
or that he will endanger the physical safety 
of himself or others if not capturedj or

(3) The officer has reasonable cause to 
believe that a fleeing suspect has committed 
a dangerous felony. As used in this subpart, 
unless the context otherwise requires, 
■dangerous felony" means a felony offense 
which involves conduct including the use or 
threatened use of deadly force, including, but
limited to, any of the following specific
offenses:

(A) any degree of homicide.
• (B) mayhem.
t (C) rape.

(D) any degree of criminal sexual

• assault.
(E) robbery.
(F) felonious assault.

i
(G) aggravated arson.
(H) aggravated kidnapping.
(I) any burglary of an occupied

premises. or
(J) any attempt to commit any of

above offenses.
SECTION 2. This act shall take effect upon becoming a law, 

the public welfare requiring it.

- 2- 43088c



ir:̂ ;.V?̂ -'-V»̂ --i

FISCAL NOTE

TO: Chief Clerk of the Senate
Chief Clerk of the House

FROM: Donald L. Morton, Executive Director
Fiscal Review Cotnmittee

DATE: April 11, 1985
SUBJECT: House Bill 1062

This bill, if enacted, is estimated to have 
ininimal fiscal impact and, therefore, can be implemented 
within the existing level of funding.

This is to duly certify that the information 
contained herein is true and correct to the best of 
my knowledge.

bonaId L. Morton 
Executive Director

HOUSE BILL 1062



SUMMARY:

AN ACT relative to the force a law enforcement 
officer may use to effect an arrest and 
to amend Tennessee Code Annotated, Section 
40-7-108.
This bill would also delete T.C.A. 40-7-108 

and in lieu thereof provide the following:

- If, after notice of the intention to arrest 

the defendant, he either flees or forcibly resists, 

the officer may use all the necessary means to effect 

the arrest.
- Deadly force is authorized to effect an arrest 

only if all other reasonable means of apprehension have 

been exhausted and one (1) or more of the following con­

ditions exist:
(1) The officer has reasonable cause to believe 

that there is a substantial risk that the person to

be arrested will cause death or serious bodily harm or 

will commit a dangerous felony if his apprehension is 

delayed; or
(2) The officer has reasonable cause to believe 

that the person to be arrested is armed or that he will 

endanger the physical safety of himself or others if 

not captured; or
(3) The officer has reasonable cause to believe 

that a fleeing suspect has committed a dangerous felony, 

As used in this subpart, unless the context otherwise 

requires, "dangerous felony" means a felony offense 

which involves conduct including the use or threatened 

use of deadly force, including, but limited to, any

of the following specific offenses:

SENATE BILL NO. 1056 BY COHEN
HOUSE BILL NO. 1062 BY KENT

(A) any degree of homicide,

(B) mayhem.

(C) rape.

(D) any degree of criminal sexual assault.

(E) robbery.

115



SB NO. 1056 BY COHEN
HB NO. I0t>2 BY KENT
PAGE TWO

SUMMARY: 
(contd.)

(F) felonious assault,

(G) aggravated arson,

(H) aggravated kidnapping,

(I) any burglary of an occupied 

premises, or
(J) any attempt to commit any of the 

above offenses.

FISCAL NOTE; FRC reports minimal fiscal impact,

116



AN ACT relative to the use of deadly 
force by a law enforcement 
officer to effectuate an 
arrest and to amend Tennessee 
Code Annotated, Section 40-7-108

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF TENNESSEE;
SECTION 1. Tennessee Code Annotated, Section 40-7-108, is 

amended by deleting the section in its entirety and substituting 
instead the following:

(a) Except as provided in subsection (b) of this 
section, if, after notice of a law enforcement officer's 
intention to arrest a susnect, such suspect either flees 
or forcibly resists, the officer may use all necessary 
means to effectuate the arrest.

(b) A law enforcement officer may not use deadly 
force to effectuate an arrest or prevent escape unless
such deadly force is both necessary and such officer has probable 
cause to believe that the suspect poses a threat of serious 
physical harm, either to such officer or to others or that 
the suspect has committed an offense involving the infliction 
or threatened infliction of serious physical harm. If feasible, 
the law enforcement officer shall give some warning to the 
suspect before using deadly force.

SECTION 2. This act shall take effect upon becoming a 
law, the public welfare requiring it.



SUMMARY;

PRESENT LAW:

AN ACT relative to the use of deadly force by 
a law enforcement officer to effectuate 
an arrest and to amend Tennessee Code 
Annotated, Section 40-7-108.
T.C.A. 40-7-108 (Resistance to officer) currently 

provides that the officer may use all the necessary means 

to effect the arrest if, after notice of the intention 

to arrest the defendant, he either flees or forcibly 

resists. This bill repeals this section and provides 

instead the following:
(a) Except as provided in subsection (b) of this 

section, if, after notice of a law enforcement officer's 

intention to arrest a suspect, such suspect either flees 

or forcibly resists, the officer may use all necessary 

means to effectuate the arrest.
(b) A law enforcement officer may not use deadly 

force to effectuate an arrest or prevent escape unless 
such deadly force is both necessary and such officer has 
probable cause to believe that the suspect poses a threat 
of serious physical harm, either to such officer or to 
others or that the suspect has committed an offense 
involving the infliction or threatened infliction of 
serious physical harm. If feasible, the law enforcement 
officer shall give some warning to the suspect before 

using deadly force.

SENATE BILL NO. 1058 BY WILLIAMS
HOUSE BILL NO. 1076 BY LOVE

40-7-108. Resistance to officer. -  If. afier notice o f the intention ̂  arrest

r j l ' coa.
1932, § 11539; T.C.A. (ong. ed.), § 40-808.]

FISC7VL NOTE: FRC reports minimal fiscal impact.

IIA