Motion to Affirm or Dismiss and Brief in Opposition

    Nos. 83-1035 
83-1070

IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1983

THE STATE OF TENNESSEE,
Appellant, and

MEMPHIS POLICE DEPARTMENT; CITY OF MEMPHIS, TENNESSEE,
Petitioners,

V .

CLEAMTEE GARNER, as father and next of kin of 
Edward Eugene Garner, a deceased minor.

Respondent-Appellee.

On Appeal from the United States Court of Appeals 
for the Sixth Circuit in No. 83-1035

On Petition for a Writ of Certiorari to the 
United States Court of Appeals 

for the Sixth Circuit in No. 83-1070

MOTION TO AFFIRM OR DISMISS 
in No. 83-1035 and
BRIEF IN OPPOSITION 

in No. 83-1070

Respondent-appellee, CLEAMTEE GARNER, respectfully 
submits that his motion to affirm the judgment below or 
dismiss the appeal in No. 83-1035 should be granted and that 
the petition for a writ of certiorari in No. 83-1070 should be 
denied.

OPINIONS BELOW
The decision of the United States Court of Appeals for 

the Sixth Circuit, renaered on June 16, 1983, is reported as 
Garner v. Memphis Police Dept., 712 F.2d 240 (6th Cir. 1983). 
Rehearing was denied on September 26, 1983; this order is



notea at 710 F.2d at 240. The Sixth Circuit's prior opinion
* /is reported at 600 B'. 2d 52 (6th Cir. 1979).—

STATEMENT OB' THE CASE
Fifteen-year-old Edward Eugene Garner was shot and 

killed by a Memphis police officer on the night of October 
3, 1974. On April 8, 1975, Cleamtee Garner filed "an action 
for damages brought pursuant to 42 U.S.C. 1981, 1983,
1985, 1986 and 1988 to redress the deprivations of the rights, 
privileges and immunities of Plaintiff's deceased son, Edward 
Eugene Garner, secured by the Fourth, Fifth, Sixth, Eighth 
and Fourteenth Amendments to the United States Constitution." 
Complaint If 2; App. 6.-'̂  On August 18, 1975, the district 
court entered an order dismissing the City of Memphis and 
the Memphis Police Department as defendants under 42 U.S.C.
§ 1983. Trial was held on August 2 through 4, 1976. On 
September 29, 1976, the district court entered a memorandum 
opinion rendering judgment for the defendants.

Plaintiff appealed. The court of appeals. Chief 
Judge Edwards and Judges Merritt and Lively, reversed ana 
remanaed the case for reconsideration in light of Monell v. 
Department of Social Services, 436 U.S. 658 (1978). One of 
the questions that it listed for consideration on remand was 
whether "a municipality's use of deadly force under Tennessee 
law to capture allegedly nonaangerous felons fleeing from

V  Citations to the opinion below are to the appendix to 
the petition for a writ of certiorari in No. 83-1070 and 
are designated as A. Citations to the record below
are to the Joint Appendix in the Sixth Circuit and are 
designated as App. ____.
_1/ The suggestion by the state, appellant in No. 83-1035, that the fourth amendment had not been raised, see Jurisdictional 
Statement at 5, is incorrect. Indeed, the district court 
noted in its initial opinion that; "Plaintiff cited specific­
ally in this regard the Fourth Amendment right to be free of 
unreasonable seizure of the body ... incorporated into the 
due process clause of the B'ourteenth Amendment and made 
applicable to the States." A. 2. See also Complaint M 19,
App. 11-12; Memorandum Opinion of Feb. 29, 1980, A. 21.

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nonviolent crimes [is] constitutionally permissible under 
the fourth, sixth, eighth and fourteenth amendments?" Garner 
V. Memphis Police Dept., 600 F.2d 52, 55 (6th Cir. 1979); A.
18, It also remanded for consideration of the question of 
Memphis's "policy or custom" for purposes of liability under 
Monell. Id., 600 F .2d at 55; A. 19.

On remand, the district court denied plaintiff the 
opportunity to introduce additional evidence on the question 
of the Memphis "policy or custom," to submit an offer of 
pi oof, or to submit a brief on the merits; it entered judgment 
for the defendants. A. 20. After consideration of plaintiff's 
motion to reconsider, the court allowed the submission of a 
brief and offer of proof and then again entered judgment for 
the defendants, A. 31. The court of appeals. Chief Judge 
Edwards and Judges Merritt and Keith, reversed. It held 
that the Tennessee statute, Tenn. Code Ann. § 40-808 (1975), 
violated the fourth amendment and the due process clause of 
the fourteenth amendment "because it authorizes the unnecessarily 
severe and excessive, and therefore unreasonable," use of 
deadly force to effect the "arrest" of unarmed, nonviolent, 
fleeing felony suspects such as plaintiff's son. 710 F .2d 
at 241; A. 40-41. Rehearing and rehearing en banc were 
denied on September 26, 1983. 710 F.2d at 240; A. 58.

STATEMENT OF FACTS
A. The Facts Regarding the Shooting

At the time of his death, Edward Eugene Garner was 
fifteen-years-old. He was an obvious juvenile; slender of 
build, he weighed between 85 and 100 pounds and stood only 
five feet and four inches high, App. 78 and 290-91. He

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had a minor juvenile record. At the age of 12, he and two
other boys illegally entered the house in whose yard they
were playing. App. 686 and 689. In July of 1974, his family
called the police when they discovered that he had taken a

2/jar of pennies from a neighbor's house.— He was placed on 
probation for one year. App. 88-89 and 689. There was also 
a prior arrest for a curfew violation, but that was resolved 
when it was explained that young Garner was working at a 
local store and under supervision at the time. App. 84 and 
693-94.

On the night of October 3, 1974, Officers Hymon and
Wright responded to a burglary in progress call at 737
Vollentine in Memphis. When they arrived at that address, a
woman was standing in the door pointing at the house next
door. Upon inquiry by Officer Hymon, she said that "she had
heard some glass breaking or something, and she knew that

3/somebody was breaking in." App. 207.— Hymon went around 
the near side of the house, his revolver drawn, while Wright 
went around the far side. Hymon reached the backyard first, 
where he heard a door slam and saw someone run from the back 
of the house. He located young Garner with his flashlight:

_2/ The neighbor declined to call the police about this 
minor incident. It was the family that insisted that the 
police be called. App. 88-89.
3/ Hymon testified that: "Roughly I recall her saying,
'They are breaking inside....'" App. 207. He qualified 
that testimony when He was asked: "Did you understand her
to be saying that there were several people inside the house?" 
He responded: "I don't really think she knew. I think that 
she —  I think that she might have mentioned that she had 
heard some glass breaking or something, and she knew that 
somebody was breaking in. I don't think that the plural 
form had any indication of her knowing." Id.

This version was corroborated by his partner. Officer 
Wright. He testified that: "I was leaning over in the 
street like this to hear what she was saying through the 
open door. She said, 'Somebody is breaking in there right
now. App. 707.

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Garner was crouched next to a six foot cyclone fence at 
the back of the yard about 30 to 40 feet away from Hymon.
Hymon was able to see one or both of Garner's hands; he 
concluded that Garner was not armed. App. 239, 246-47, 658, 
and 677.-/

While young Garner crouched in Hymon's flashlight
beam, Hymon identified himself and ordered Garner to halt.
Garner paused a few moments during which Hymon made no attempt 

5 /to advance,— but continued to aim his revolver at Garner. 
Garner bolted, attempting to jump the fence. Hymon fired, 
striking young Garner in the head. Garner fell, draped over 
the fence. He did not die immediately; when the paramedics 
arrived on the scene "he was holding his head and just 
thrashing about on the ground," App. 141, "hollering, you 
know, from the pain." App. 137. Edward Eugene Garner died 
on the operating table. App. 153.

£/ At his deposition, introduced into evidence, Hymon 
testified that: "I am reasonably sure that the individual
waf; not armed...." App. 246. On direct examination by the 
city at trial, Hymon was asked: "Did you know positively
whether or not he was armed?" He replied: "I assumed he 
wasn't...." App. 658.

Hymon also testified that Garner did not act as an 
armed suspect would, neither firing a weapon not throwing it 
down. App. 246. He testified that: "I figured, well, if
he is armed I'm standing out in the light and all of the 
light is on me the[n] I assume he would have made some kind 
of attempt to defend himself...." App. 658. That officer 
Hymon operated on the assumption that young Garner was 
unarmed is further corroborated by his testimony that he 
"definitely" would have warned his partner if he had had any 
question whether Garner was armed, App. 246-47, and that: "I 
would have taken more cover than what I had." Id.
5/ Hymon testified that he did no more than take "a couple 
of steps," App. 651, "which wasn't, you know, far enough to 
make a difference." App. 256. Officer Wright testified 
that when he rounded the corner of the house after the shot, 
Hymon "was standing still...." App. 720. According to 
Wright, it took only "three or four seconds" for Hymon to 
reach Garner after the shot. Id.

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There was no one home when the house was broken 
into. After the shooting, the police found that young 
Garner had ten dollars and a coin purse taken from the 
house. App. 737. The owner of the house testified that the 
only items missing were a coin purse containing ten dollars 
and a ring belonging to his wife, but that the ring was 
never found. The ten dollars were returned. App. 169.—^

Plaintiff called two expert witnesses —  Chief Detective 
Dan Jones of the Shelby County Sheriff's Department and 
Inspector Eugene Barksdale, former commander of the personal 
crimes bureau of the Memphis Police Department —  to testify 
about the reasonableness of Hymon's use of deadly force 
under the circumstances. As the district court found: "The 
substance of such testimony was to the effect that Hymon 
should first have exhausted reasonable alternatives such as 
giving chase and determining whether he had a reasonable 
opportunity to apprehend him in some other fashion before 
firing his weapon." A. 8. Both Jones and Barksdale testified 
that Hymon "should have tried to apprehend him," App. 278 
and 375; Barksdale added that "in all probability he could 
have apprehended the subject without having to shoot him...." 
App. 373.
B. The Memphis Policy or Custom: Liberal Use of Deadly

Force
Because of the district court's decision not to allow 

further hearings on remand, the record on the question of 
"policy or custom" is a hybrid. It consists of the evidence 
adduced at the original trial and the offer of proof tendered 
on remand.

6/ The owner also testified that: "The first -- I had some 
old coins in there and when they did let me in, I went to 
them. They were still there." Id.

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At trial, plaintift called Captain Coletta, who was 
responsible for recruit training and the ammunition policies 
of the Memphis Police Department. He testified that the 
department used the film "Shoot - Don't Shoot," which presents 
only armed fleeing felons in its situational illustrations 
of the fleeing felon rule, App. 329-32; that there was no 
training in alternatives that should be exhausted before 
resorting to deadly force to stop unarmed fleeing felony 
suspects, App. 340; that the department's firearms manual 
details firearms techniques, but not techniques to avoid the 
need for the use of weapons, App. 344-45; and that the use 
of deadly force to stop fleeing felony suspects is left to 
the individual officer's discretion; recruits are simply 
told that they must live with themselves if they kill a 
person. App. 326 and 345. Accord App. 195-96, 901, 956, 
and 1796.

According to Captain Coletta, the Memphis police have 
always used a .38 caliber Smith and Wesson. In the years 
immediately preceding the Garner shooting, Memphis twice 
upgraded its ammunition to bullets with greater velocity, 
accuracy, and predicted wounding power. App. 413-16, 425- 
27, and 447. The bullet that was finally selected was the 
125 grain, semi-jacketed, hollow-point Remington. Both 
Coletta ana the Shelby County meaical examiner testified 
that this bullet is a "dum-dum" bullet banned in international 
use by the Hague Convention of 1899 because it is designed 
to produce more grievous wounds. App. 487-88 and 572. This 
is the bullet that killed young Garner.

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Finally, Coletta testified that Memphis recruits are 
taught to aim at the torso, or "center mass," where vital 
organs are more likely to be hit. App. 357-58. See also 
App. 1597 and 1807-08. In a prior case, the district court 
found that Memphis police officers "were trained whenever 
they use their firearms to 'shoot to kill.'" Wiley v. Memphis 
Police Dept., 548 F.2d 1247, 1250 (6th Cir. 1977).

On remand, plaintiff assembled an extensive offer of 
proof on the question of the Memphis policy or custom.
App. 762-1891. Organized in fifteen parts, it contains 
affidavits of expert witnesses who would have been called to 
testify, App. 765-97; excerpts from prior federal cases 
against the Memphis Police Department that illuminate Memphis's 
actual policies and customs regarding the use of deadly 
force, App. 798-1019, 1409-57, 1460-69, 1477-1601, and 1614- 
1891; excerpts from the report of the Tennessee Advisory 
Committee to the U.S. Commission on Civil Rights, which was 
based on hearings on civil rights abuses by the Memphis 
Police Department, App. 1050-58; the deadly force policies 
of 44 major municipalities, App. 1108-1368; the training 
materials tor the New York Police Department, App. 1369- 
1408; and an excerpt from an LEAA publication on deadly 
force that details police training procedures used in other 
cities but not in Memphis. App. 1602-13.

It IS beyond the scope of this submission to summarize 
these materials in depth. In general, these materials in­
dicate the deficiencies in the Memphis policies and customs 
concerning the use of deadly force in terms of written policy, 
actual practice, training, and discipline. For example, one

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of plaintiff's experts was William R, Bracey who, at the 
time of his affidavit, was Chief of Patrol of the New York 
Police Department with supervisory authority over all 17,500 
uniformed personnel of the New York Police Department. He 
would have testified: that guidelines and committed enforce­
ment of those guidelines by the police hierarchy will lead 
to reductions in the use of unnecessary deadly force; that 
New York has reduced firearms discharges by 50% by these 
means; that the result of this reduction has been the increased 
safety of New York Police Department officers with fewer 
assaults on officers and fewer deaths; that law enforcement 
has been unhampered; that training, including training in 
alternatives to minimize the need for use of deadly force, 
and discipline are the keys to reducing unnecessary deadly 
force; that shooting unarmed fleeing felons is related to 
the officer's subjective notions of punishment; ana that the 
Memphis policies of shooting fleeing property crime suspects, 
use of "dum-dum" bullets, and training and discipline were 
all deficient. App. 765-76.

Similarly, the Memphis-specific materials show a policy 
or custom that can only be characterized as a liberal use of 
deadly force policy. The Memphis policy has been one of 
ready resort to deadly force which, as in this case, has 
served as a disincentive to the exhaustion of reasonable 
alternatives by the police officer. See, e.g., App. 798-818 
(Preliminary Report of Jan. 18, 1972); App. 819-74 (Deposition 
of Officer Fredrick). This has been reinforced both by the 
public statements of Memphis mayors and police directors, 
see App. 1632 and 1825-28, and the operation of the Memphis

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Police Department disciplinary system: No Memphis police 
otficer has ever been disciplined for the use ot his gun, 
App. 547 and 1858; the civilian complaint procedures are

7 /designed to deter complaints. App. 1050-58.—
C. The Memphis Policy or Custom: Race Discrimination

The materials contained in the offer of proof strongly 
support a finding that the Memphis deadly force policy runs 
afoul of the Constitution in another fundamental way not 
discussed by the court of appeals: It is a policy that
discriminates on the basis ot race.

The offer of proof contains the raw data concerning 
all arrests in Memphis between 1963 and 1974, App. 1409-57 
and 1767-68; aata on all shootings of fleeing property crime 
suspects between 1969 and 1974, App. 1460-69; data on all 
those killed by Memphis police officers between 1969 and 
1976, App. 1764-67 and 1071;—^ prior analysis of this data 
by a statistician, App. 1769-77, and his testimony at an 
earlier trial regarding this analysis, App. 1559-62 and 
1589-92; historical data regarding race discrimination by 
the Memphis Police Department from 1874 through the mid­
seventies, including the deposition testimony of the mayor 
and police director supporting this conclusion, App. 908- 
910, 928-32, 972-74, 1539-40, 1571-75, 1646-56, 1677-78,
1690, and 1828-29; and the affidavit of plaintiff's expert.

!_/ The two salient procedures that deter complaints are 
the rule that all complainants must take a polygraph while 
no officer is ever required to and that the officer against 
whom a charge is made must immediately be notifiea of the 
complainant's name and address. App. 1050-58.
%/ All of the foregoing data was collected and provided by 
the Memphis Police Department as defendant in Wiley v. Memphis 
Police Dept., Civ. Action No. C-73-8 (W.D. Tenn. June 30, 
1975), aff'd, 548 F.2d 1247 (6th Cir. 1977).

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Dr. James J. Fyfe,— which analyzed in detail the arrest and 
shooting data contained in the offer of proof. App. 787-97.

On the use of deadly force, the data reveal that 
there are significant disparities based on the race of the 
shooting victim/suspect and that virtually all of this dis­
parity occurs as the result of the Memphis policy that allows 
officers to exercise their discretion to shoot fleeing property 
crime suspects. Between 1969 and 1976, blacks constituted 
70.6% of those arrested for property crimes in Memphis but 
88.4% of the property crime suspects shot at by the Memphis 
police. In contrast, the percentage of black violent crime 
suspects shot at by Memphis police was closely proportionate 
to their percentage in the violent crime arrest population: 
85.4% and 83.1%, respectively. App. 1773.

Dr. Fyfe reviewed this data and concluded that con­
trolling for differential racial representation in the arrest 
population, black property crime suspects were more than 
twice as likely to be shot at than whites (4.33 per 1000 
black property crime arrests; 1.81 per 1000 property crime 
arrests), four times more likely to be wounded (.586 per 
1000 blacks; .1113 per 1000 whites), and 40% more likely to 
be killed (.63 per 1000 blacks; .45 per 1000 whites). App.
792. Comparison of shootings by Memphis Police officers 
while controlling for race of the shooting victim and the 
nature of the incident provided similarly striking data.
His analysis of the shooting incidents between 1969 and 1976 
described by the Memphis Police Department to the Civil

9 /

V  Dr. Fyfe is a former New York Police Department lieutenant 
and training officer. He designed a firearms trainings 
program for the New York Police Department in which over 
20,000 officers have participated. His doctoral thesis 
concerned the use of deadly force by New York Police Depart­
ment officers. He is an associate professor at The American 
University in Washington, D.C., and has served as a consultant 
on the deadly force issue for the United States Department 
of Justice and the Civil Rights Commission. App. 788-89.
He also teaches courses at the F.B.I. National Academy at 
Quantico, Va.

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Rights Commission showed a dramatic disparity between the 
situations in which whites were killed and those in which 
blacks were killed. Of the blacks shot, 50% were unarmed and 
nonassauitive, 23.1% assaultive but not armed with a gun,
26.9% assaultive and armed with a gun. Of the whites shot, 
only one was non-assaultive (12.5%), five (62.5%) were armed 
with a gun, and the remaining two (25%) were assaultive but 
not armed with a gun.— Based on this data. Dr. Fyfe con­
cluded that, during the period in question, Memphis police 
were tar more likely to shoot blacks than whites in non­
threatening circumstances and that the great disparity in 
blacks shot by Memphis police officers is largely accounted 
tor by the policy allowing the shooting of non-dangerous 
fleeing felony suspects. Between 1969 and 1976, Memphis 
police killed 2.6 unarmed, non-assaultive blacks tor each 
armed, assaultive white. App. 793-94.

Plaintiff proffered this evidence having previously 
requested both additional discovery and a hearing on these 
factual questions. The district court, in its post­
reconsideration order, A. 31, rejected Dr. Fyfe's conclusions 
on the basis of several unsupportable considerations. It 
noted Dr. Fyfe's "bias," A. 34, having never seen him testify.— ' 
It attacked Dr. Fyfe's conclusions because, it claimed, he 
failed to "specify the actual number of blacks arrested

11/

10/ Dr. Fyfe noted that: "These are certainly dramatic 
differences, but no measure of their significance is possible 
... because the only statistically significant category of 
whites killed is those armed with guns." App. 794.
11/ The district court's "bias" finding was based on Dr. 
Fyfe's disagreement with the Memphis policy allowing the use 
of deadly force against nondangerous suspects. This "bias," 
however, is the official policy of the F.B.I. and numerous 
metropolitan police departments as disparate as New York, 
Atlanta, and Charlotte, North Carolina. See App. 1113,
1200, 1293, and 1869.

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and/or convicted tor alleged 'property crimes' as compared 
to whites auring this period." A. 32. But, as discussed 
above, Dr. Fyfe's analysis specifically "controls for dif­
ferential involvement among the races in property crime...," 
App. 792; indeed, the data on which Dr. Fyfe relied was 
included in the offer of proof and provided the actual number 
of both white and black property crime arrests together with 
the raw data of all arrests. App. 1409-57 and 1767-68. The 
district court questioned the delineation of "'property 
crime' in the Fyfe definition." A. 32. But the delineation 
between property crimes and violent crimes that Dr. Fyfe 
employed was that made by the Memphis Police Department 
and included with the arrest statistics. App. 1559 and 
1767-68. In numerous similar ways, the district court either
misapprehended or deliberately distorted 
proffered testimony.

12/ Dr. Fyfe's

12/ For example, in questioning Dr. Fyfe's observation that 
the incidence of use of deadly force in property crime arrests 
in Memphis tar exceeded that in New York, the district court 
noted that: "Professor Fyfe admitted his comparison was not 
'precise' in respect to 'property crimes' comparison." A. 32 
n. 1. But Dr. Fyfe accounted for this imprecision in a way 
that favored Memphis. His "admission" was that:

More than half (50.7 percent) of the police 
shootings in Memphis during 1969-1974 involved shoot­
ing at property crime suspects. The comparable 
percentage in 1971-1976 in New York was no more 
than 11.8 percent. This comparison is not precise 
because the New York City figure includes all shoot­
ings to "prevent or terminate crimes." Thus, it 
includes shootings precipitated by both property 
crimes and crimes of violence. My estimate of the 
percentage of New York City police shootings which 
involved property crime suspects only is four percent.

App. 791.
Similarly, in 

for disparate racial 
the district court al 
that there is also 'd shootings.'" A. 32. 
"In New York City, di 
shootings also exists 
totally accounted for 
the types of activiti App. 792.

arguing that Dr. Fyfe failed to control 
involvement in the underlying felonies, 
leged that Dr. Fyfe "concedes elsewhere 
ifferential racial involvement in police 
What Dr. Fyfe said, however, is that: 
fferential racial involvement in police 
, but [unlike Memphis] it is almost 
by differential racial involvement in 
es likely to precipitate shootings."

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Because the court of appeals held that the Tennessee 
fleeing felon statute violates the fourth amendment and the 
due process clause, it did not reach the race discrimination 
issue.

REASONS FOR DENYING REVIEW
I. THE COURT OF APPEALS CORRECTLY HELD THAT A 

STATE STATUTE THAT CONFERS UNLIMITED DIS­
CRETION ON POLICE OFFICERS TO SHOOT NON- 
DANGEROUS, FLEEING FELONY SUSPECTS WHOM THEY 
REASONABLY ASSUME TO BE UNARMED VIOLATES 
ESTABLISHED CONSTITUTIONAL PRINCIPLES_______
The court of appeals applied established constitu­

tional principles to review a state statute that authorizes 
police officers to use deadly force against non-dangerous, 
fleeing felony suspects. It held that the fourth amendment 
applies and that it requires reasonable methods of capturing 
suspects. 710 F.2d at 243; A. 44. As at common law —  when 
all felonies were capital offenses, the fleeing felon doctrine 
authorized the use of deadly force to prevent the felon's 
escape —  the court of appeals held that the fourth amendment 
allows only the reasonable, proportional use of deadly force 
in the arrest context: i.e., "the police response must
relate to the gravity and need...." Bivens v. Six Unknown 
Agents, 403 U.S. 388, 419 (1971) (Burger, C.J., dissenting). 
Since the use of deadly force against unarmed, nonviolent 
felony suspects is excessive, it violates the fourth amendment, 
710 F.2d at 246; A. 51.

The court of appeals also held that the use of deadly 
force against unarmed, nonviolent felony suspects violates 
due process. The due process clause explicitly protects the 
right to life, U.S. Constitution Amend. XIV, i; Williams 
V. Kelly, 624 F.2d 695, 697 (5th Cir. 1980), a right so

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axiomatic that it is an understatement to characterize it as 
"fundamental." Compare Yick Wo v. Hopkins, 11b U.S. 356,
370 (1886) ("the fundamental rights to life, liberty and the 
pursuit of happiness"), and Johnson v. Zerbst, 304 U.S. 458,
462 (1938) ("fundamental human rights of life and liberty"), 
with Trop v. Dulles, 356 U.S. 86, 102 (1958) ("the right to 
have rights"). The Tennessee statute falls under the due 
process clause because the state interests cannot support 
the taking of life in the context of a nonviolent, nondangerous 
felony. 710 F.2d at 246-47; A. 52-53.

The state and the city argue that the court of appeals 
erred because the fourth amendment does no more than set the 
minimum standard —  i.e., probable cause -- for initiating 
an arrest, but that it does not govern the manner of police 
action in effectuating that arrest. Jurisdictional Statement 
at 8-9; Cert. Petition at 10-11. They argue that the reliance 
placed by the court of appeals on the Fourth Circuit's ruling 
in Jenkins v. Averett, 424 F .2d 1228 (4th Cir. 1970), is 
misplaced because in Jenkins the officer had no probable 
cause to arrest and, thus, was not authorized to use any 
force. Jurisdictional Statement at 8; Cert. Petition at 11. 
Finally, they argue that the Court should grant review because 
the decision in this case conflicts with that of the Second 
Circuit in Jones v. Marshall, 528 F.2d 132 (2d Cir. 1975). 
Jurisdictional Statement at 10; Cert. Petition at 10.

The state and the city are wrong on each of these 
points, and the court of appeals is correct. As we show 
below, the fourth amendment plainly applies under the prin­
ciples consistently enunciated by this Court and affirmed

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again only last Term. Moreover, the ruling below is entirely 
consistent with the decision in Jenkins and the parallel 
authority in every circuit, including the Second Circuit.

The Tennessee statute at issue, Tenn. Code Ann. § 40- 
808, provides that:

It, after notice of the intention to arrest the 
defendant, he either flee or forcibly resist, the 
officer may use all the necessary means to effect 
the arrest.

Id. It is an arrest statute; there can be no suggestion 
that "such police conduct is outside the purview of the 
Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 16 (1968). The 
fourth amendment speaks directly to: "Tie right of the people 
to be secure in their persons ... against unreasonable ... 
seizures...." U.S. Constitution Amend. IV; Terry, 392
U. S. at 16 ("It is quite plain that the Fourth Amendment 
governs 'seizures' of the person...."); accord United States
V. Place, ____ U.S. ____, 77 L.Ed.2d 110, 121-22 (1983);
Dunaway v. New York, 442 U.S. 200, 207 (1979); Cupp v. Murphy, 
412 U.S. 291, 294 (1973); Davis v. Mississippi, 392 U.S.
721, 726-27 (1969).

Moreover, the Court has long repudiated the contention 
that the fourth amendment governs only the "when" of police 
action and not the "how." Only last Term, the Court reaffirmed 
what it "observed in Terry, '[t]he manner in which the 
seizure ...[was] conducted is, of course, as vital a part of 
the inquiry as whether [it was] warranted at all.'" United 
States V. Place, 77 L.Ed.2d at 121 (quoting Terry, 392 U.S.

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at 28). 12/ In Place, the court went on to "examine the
agents' conduct...." i^., and found it "sufficient to render
the seizure unreasonable." at 122. See Schmerber v.
California, 384 U.S. 757, 768 (1966) ("whether the means and
procedures employed ... respected relevant Fourth Amendment
standards of reasonableness"); Ker v. California, 374 U.S.
23, 38 (1963) (whether "the method of entering the home may
offend federal constitutional standards of reasonableness");
United States v. Calandra, 414 U.S. 338, 346 (1974) (subpoena
"'far too sweeping in its terms to be regarded as reasonable'
under the Fourth Amendment") (dicta).

In determining the reasonableness of the use of deadly
force under the fourth amendment, the court of appeals followed
exactly the mode of analysis applied by this Court in considering
other forms of police action.

Terry and its progeny rests on a balancing of the 
competing interests to determine the reasonableness 
of the type of seizure involved within the meaning 
of "the Fourth Amendment's general proscription 
against unreasonable searches and seizures." 392 
U.S. at 20. We must balance the nature and quality 
of the intrusion on the individual's Fourth Amendment 
interests against the importance of the governmental 
interests alleged to justify the intrusion.

1 3/United States v. Place, 77 L.Ed.2d at 118.— ' The court

12/ In Terry, the Court added that: "The Fourth Amendment 
proceeds as much by limitations upon the scope of governmental 
action as by imposing preconditions upon its initiation."
392 U.S. at 28-29.
13/ In fact, this mode of analysis did not originate in 
Terry; the Terry Court derived it from the decision in Camara 
V. Municipal Court, 387 U.S. 523 (1967):

In order to assess the reasonableness of the police 
conduct as a general proposition, it is necessary 
"first to focus upon the governmental interest 
which allegedly justifies official intrusion upon 
the constitutionally protected interests of the 
private citizen," for there is "no ready test for 
determining reasonableness other than by balancing 
the need to search [or seize] against the invasion 
which the search [or seizure] entails."

Terry, 392 U.S. at 20-21 (quoting Camara, 387 U.S. at 534- 
35, 536-37).

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of appeals looked at the "nature and quality of the intrusion:"
As an intrusion by police, the use of deadly force is "a
method 'unique in its severity and irrevocability.'" Garner,
710 F .2d at 243; A. 44 (quoting Gregg v. Georgia, 428 U.S.
153, 187 (1976)). It balanced this against the state's
interests and concluded that, as was true at common law, the
state interests are proportionate only when the underlying
felony is a violent one or the fleeing suspect will endanger

14/the physical safety of others.— ' The court of appeals thus 
properly applied settled fourth amendment principles and 
correctly arrived at the decision below.

Nothing in Jenkins v. Averett, on which the court of 
appeals relied, is inconsistent with this reasoning. Nowhere 
in Jenkins did the Fourth Circuit engage in the reasoning 
suggested by the state and the city: that the shooting 
violated the fourth amendment because there was no probable 
cause to arrest. To the contrary, the Fourth Circuit never 
discussed whether the police were authorized to stop Jenkins. 
Rather, the vice it found was that "our plaintiff was subjected 
to the reckless use of excessive force." 424 F .2d at 1232 
(emphasis added).

Jenkins was premised on the principle that the fourth 
amendment protects the "inestimable right of personal 
security." ][d. , 424 F . 2d at 1232 (quoting Terry v. Ohio, 392
U.S. at 8-9). Accord Florida v. Royer, 460 U.S. ____, 75
L.Ed.2d 229, (1983); Davis v. Mississippi, 394 U.S. at
726-27 ( "Nothing is more clear than that the Fourth Amendment 
was meant to prevent wholesale intrusions upon the personal

14/ The city argues that the court of appeals "fail[ed] to 
recognize the valid state interests encompassed by the 
statute...." Cert. Petition at 11. This is false. The 
scope of the state interests in the use of deadly force were 
fully briefed in the court below. Brief for Appellees at 
18; Brief for Appellant at 21-28, 33-35. They will not be 
recapitulated here because of the necessary length of such a 
discussion. Suffice it to note that the question was fully 
considered by the court below; it simply decided the issue 
adverse to the city.

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security of our citizenry...."). As such, the fourth amendment 
"shield covers the individual's physical integrity." Jenkins, 
424 F.2d at 232. See Schmerber v. California 384 U.S. 767 
("we are dealing with intrusions into the human body").
Every circuit has concurred in this conclusion, although 
most now follow the Second Circuit's lead as articulated by 
Judge P’riendly in Johnson v. Click, 481 F. 2d 1028 (2d Cir. ) , 
cert, denied, 414 U.S. 1033 (1973, that "quite apart from 
any 'specific' of the Bill of Rights, application of undue 
force by law enforcement officers deprives a suspect of 
liberty without due process of law." Id. at 1032; accord 
Landriqan v. City of Warwick, 628 E’.2d 736, 741-42 (1st Cir. 
1980) (citing United States v. Villarin Gerena, 533 F.2d 
723, 728 (1st Cir. 1977) (fourth and fifth amendments));
Howell V. Cataldi, 4 64 F.2d 272 (3rd Cir. 1972); United 
States V. Stokes, 506, 771, 775-76 (5th Cir. 1975); Tefft 
V. Seward 689 F.2d 637, 639 n. 1 (6th Cir. 1982); Byrd v. 
Brishke, 466 F.2d 6 (7th Cir. 1972); Herrera v. Valentine,
653 F.2d 1220, 1229 (8th Cir. 1981); Gregory v. Thompson,
500 F.2d 59 (9th Cir. 1974); Morgan v. Labiak, 368 F .2d 338 
(10th Cir. 1966); Carter v. Carlson, 447 F.2d 358 (D.C. Cir. 
1971), rev'd on other grounds, 409 U.S. 418 (1973). The 
court of appeals simply applied the well established prin­
ciple that excessive force by law enforcement personnel 
violates the fourth amendment and the due process clause to

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15/the facts of this case.— '

The state and city's argument that the decision below 
is in conflict with the Second Circuit opinion in Jones v. 
Marshall is simply wrong, Jones was decided before Monell. 
Jones decided only the question of the privilege the police 
officer could invoke under § 1983, not the substantive 
constitutional question under the fourteenth amendment.

441 U.S 
Wright, 430 U.S, 
Mendoza-Martinez, 
United States,
570 F.2d 
Mendoza-Martinez

15/ In the courts below, respondent-appellee advanced 
another, established, due process principle that supports 
the judgment. The due process clause provides "protection 
against punishment without due process of law...." Bell v. 
Wolfish, 441 U.S. 520, 535 (1979{; accord Ingraham v.

651, 671-72 n. 40 (1977); Kennedy v.
372 U.S. 144, 165-67 (1963); Screws v.

___ , 325 U.S, 91, 106 (1945); Krause v. Rhodes,
563, 572 (6th Cir. 1977). Application of the seven

________________ criteria, cited in Wolfish as "useful
guideposts," 441 U.S. at 538, establishes that the shooting 
of nondangerous, fleeing felony suspects "amounts to punish­
ment," î . at 535, in violation of the due process clause. 
Sherman, Execution Without Trial; Police Homicide and the 
Constitution, 33 Vand. L, Rev. 71 (1980). This conclusion 
is particularly supported by the history of the common law 
fleeing felony doctrine, which was a direct outgrowth of the 
application of capital punishment ana, in its earliest in­
carnations, summary punishment for all felonies. Sherman, 
supra, at 81; see also 4 W. Blackstone, Commentaries 98 
(Garland ed. 1978); United States v. Clark, 31 Fed. 710, 713 
(C.C.E.D.Mich. 1887); Bohlen & Schulman, Arrest With and 
Without a Warrant, 75 U. Pa. L. Rev. 485, 495 (1927); Note,

Fleeing Felon, 15 Va. L. Rev. 582, 583Legalized Murder of a_______
(1929); T. Taylor, Two Studies in Constitutional Interpretation
28 (1968); 
The Use of

R. Perkins, Criminal 
Deadly Force in Arizona

Law lO (2d ed. 1969); Note, 
by Police Officers, 1972

L. St Soc. Order 481, 482 Comment, Deadly Force to Arrest; 
Triggering Constitutional Review, 11 Harv. Civ. Rights St 
Civ. Lib. L. Rev. 361, 365 (1974). In addition, the Memphis 
policy promotes one of "the traditional aims of punishment." 
Mendoza-Martinez, 372 U.S. at 168-69. The record establishes 
"that one of the principal purposes of Memphis's policy ... 
is to deter criminal conduct." Wiley, Civ. Action No. C-73- 
8, Slip op. at 13; see App. 962, 1832-33 and 1848-50. 
of the courts below, however, addressed this aspect of 
due process issue.

Neither
the

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Id., 528 F.2d at 137, 138, 140. 142. Indeed, it expressly 
rejected the view of the defendant in that case that the 
Connecticut statute was constitutional and that no further 
analysis was necessary. at 137. Rather, it noted that
Johnson v. Click provides the controlling constitutional 
principle, î . at 139, declined to assess the balance of 
the competing interests, î . at 142, and instead incorporated 
the Connecticut rule of the officer's privilege as a defense 
to the § 1983 action. at 138, 142. Thus, the opinion
in Jones is in striking conformity with the rulings of the 
court of appeals in this case. On the first appeal, the 
Sixth Circuit held that the officer was entitled to invoke 
the qualified privilege of good faith reliance on state law. 
Garner, 600 F.2d at 54; A. 16-17. On the second appeal, it 
reached the constitutional question not decided in Jones and 
held the state statute unconstitutional. 710 F.2d at 246- 
47; A. 51-A. 53.

The city makes one last argument against the balance 
of competing interests struck by the court of appeals.
Without any supporting authority, it asserts that "the 
nighttime breaking and entering a dwelling is a crime so 
frequently associated with the commission of violence...." 
Cert. Petition at 13. But there is no evidence in the record 
to support this bald assertion.— '̂ Nor has the Tennessee 
legislature ever made such a tactual determination. The

1_6/ This argument is, in tact, inconsistent with the city's 
position in the prior cases and that expressed in the record 
in this case. The mayor of Memphis has on several occasions 
testified under oath regarding the reasons for the Memphis 
policy allowing the officer discretion to shoot unarmed 
burlgary suspects. On those occasions, he has testified 
that the policy is justified not because burglars commit 
violence in connections with that crime, but because they 
graduate to commit subsequent crimes of violence. App. 961; 
App. 1832-34.

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statute at issue in this case was passed in 1858 and merely 
codified the then existing common law, Tenn. Code Ann.
§ 40-808; the Tennessee legislature has never held hearings 
on this question.

The available evidence is to the contrary. As the 
Court has observed,

competent observers have concluded that there is 
no basis in experience for the notion that death 
so frequently occurs in the course of a felony 
for which killing is not an essential ingredient.... 
This conclusion was based on three comparisons of 
robbery statistics, each of which showea that only 
about one-half of one percent of robberies resulted 
in homicide. The most recent national crime statistics 
strongly support this conclusion.

Enmund v. Florida, U.S. 73 L.Ed.2d 1140, 1153
(1982) (citations and footnotes omitted). In light of the 
fact that this is so for robbery, a crime that by definition 
involves the use of force or the threatened use of force, 
the city's assertion is highly questionable.

In sum, the court of appeals applied well established 
fourth amendment principles as enunciated by this Court. It 
applied principles under the fourth amendment and the due 
process clause that are consistent with the holdings of 
every circuit in the country. The decision below is 
correct, and review by this Court is unnecessary.

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