Answer of Defendants

    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.

Plaintiff,
VS. CIVIL ACTION 

No. C-75-145
MEMPHIS POLICE DEPARTMENT;
CITY OF MEMPHIS, Tennessee; 
WYETH CHANDLER, Mayor of 
Memphis; JAY W. HUBBARD, 
Director of Police of Memphis; 
and E. R. HYMON, Police Officer 
of the City of Memphis,

Defendants.

ANSWER OF DEFENDANTS

COMES NOW the Defendants, Memphis Police Department, 
City of Memphis, Tennessee, Wyeth Chandler, Jay W. Hubbard, and 
E. R. Hymon and while reiterating and relying upon each and every 
ground set forth in their Motion to Dismiss, heretofore filed in 
this cause, for answer to the Complaint filed herein state as 
follows:

FIRST DEFENSE

1. Complaint fails to state a cause of action upon 
which relief can be granted.

SECOND DEFENSE

1. Defendants admit the averments set out in Paragraph 
1 of the Complaint.

2. Defendants deny that this Court has jurisdiction 
as averred in Paragraph 2 of the Complaint.

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r .>•.

3. Defendants deny that the shooting and killing 
of Edward Eugene Garner by a police officer of the City of 
Memphis also deprived the deceased of rights, privileges, and 
immunities secured him by the Constitution and laws of the State 
of Tennessee. Defendants deny that this action is a proper one 
for damages for wrongful death and survival and further deny that 
this is a proper action for violations of the deceased's state- 
conferred rights through exercise of this Court's pendent juris­
diction.

4. Defendants are v/ithout information sufficient to 
form a belief as to the truth of the averment set out in Paragraph 
4 of the Complaint with regard to Plaintiff Cleamtee Garner being 
an adult black citizen of the United States and the State of 
Tennessee residing in Memphis, Shelby County, Tennessee, and that 
he is the father and next of kin of Edward Eugene Garner, deceased 
minor, who died on October 3, 1974, and, therefore, deny same. 
Defendants deny that the death of Edward Eugene Garner was a result 
of Defendants' policies, practices, customs, and usages. Defendants 
are without information sufficient to form a belief as to the truth 
of the averment set out in Paragraph 4 to the effect that at the 
time of his death, Edward Eugene Garner, resided with Plaintiff and, 
therefore, deny same. Defendants admit that Edward Eugene Garner 
was fifteen (15) years old at the time of his death.

5. Defendants admit the averments set out in Sub-
Sections (a), (b), and (e) of Paragraph 5 of the Complaint.

With regard to Sub-Section (c) of Paragraph 5 of 
the Complaint, Defendants admit that Wyeth Chandler is Mayor of 
the City of Memphis and as such is its chief executive officer and 
further admit that prior to becomming I-Iayor on January 1, 1972, 
Defendant Chandler was a member of the Memphis City Council, the 
City's legislative body. Defendants deny that Chandler is 
responsible for all policies and practices and actions or omissxons

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of the Department and has the duty to preserve to all citizens 
the rights, privileges, and immunities secured by the Constitution 
and laws of the United States.

With regard to Sub-Section (d) of Paragraph 5 of the 
Complaint, Defendants deny that J. W. Hubbard is at this time 
Director of Police of Memphis. However, they admit that on 
October 3, 1974, he was Director of Police of Memphis, and in 
that capacity, as chief executive officer of the Memphis Police 
Department, he was responsible.for establishing general practices, 
procedures, and policies with respect to the operation of that 
Department. Defendants further admit that pursuant to that 
authority he has promulgated regulations relating to the use of 
lethal force by Memphis officers and has authorized the use of 
weaponry and ammunition by police officers in certain instances. 
Defendants deny that any regulations promulgated by Defendant 
Hubbard in his official capacity or individually, directly or 
indirectly, violated the constitutional rights of the deceased.

6. Defendants admit the averments set out in Paragraph
6 of the Complaint.

7. Defendants admit the averments set out in Paragraph
7 of the Complaint, however. Defendants aver that not all revolvers 
are issued by the Department as some are privately owned.

8. Defendants admit the averments set out in Paragraph
8 of the Complaint.

9. Defendants admit that the Remington 125 grain 
jacketed hollow-point bullet is a member of a class of projectile 
sometimes referred to as "Dum-Dum" bullets. However, Defendants 
deny that it is commonly referred to by that name and aver that 
proper designation of such bullets is "controlled expansion 
projectiles." Defendants are without information to form a belief 
as to the truth of the averment that the bullets were named after

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an arsenal near Calcutta, India, and, therefore, deny same.
Since the Complaint does not define the meaning of "traditional 
cartridges," Defendants are without information sufficient to 
form a belief as to the truth of the averment set out in 
Paragraph 9 of the Complaint with regard to the "Dum-Dum" bullets 
possessing the very special quality of expanding and flattening 
more easily in the human body than traditional cartridges, and, 
therefore, deny same.

10. Defendants deny the averments set out in Paragraph 
10 of the Complaint.

11. Defendants admit that the "Dum-Dum" type bullets 
have been outlawed in international warfare, but deny that it is 
because of the devastating effect it has upon the human body and 
aver that it has no more devastating effect on the human body than 
land mines, mortars, recoilless rifles, artillery, and atomic 
weapons which have not been outlawed.

12. Defendants admit the averment set out in Paragraph
12 of the Complaint.

13. Defendants admit the averments set out in Paragraph
13 of the Complaint.

14. Defendants deny the averments set out in Paragraph
14 with regard to the height and weight of the deceased Garner, 
however, they admit he did not respond to Defendant Hymon's order 
to halt and was shot with a Remington 125 grain jacketed hollow- 
point bullet from his service revolver. Defendants deny that the 
deceased was shot in the back of the head and aver that he was 
actually shot in the side of the head.

15. Defendants deny the averments set out in Paragraph
15 of the Complaint.

16. Defendants admit that the deceased Garner was 
unarmed at tua time he v/as shot by Defendant Hymon.

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17. Defendants deny the averments set out in Paragraph
17 of the Complaint.

18. Defendants deny the averments set out in Paragraph
18 of the Complaint.

19. Defendants deny the averments set out in Paragraph
19 of the Complaint.

20. The defendants deny the averments set out in 
Paragraph 20 of the Complaint.

21. Defendants are without information sufficient to 
form a belief as to the truth of the averment set out in Paragraph
21 of the Complaint and, therefore, deny same.

22. Defendants deny the averments set out in Paragraph
22 of the Complaint.

23. Defendants deny the averments set out in Paragraphs 
24, 25, 26, 27, 28, 30, 31, 32, 33, 34, 36, 37, 38, 39, 40, 42, 43, 
and 45 of the Complaint.

24. Defendants deny that they are liable for damages, 
either compensatory or punitive, under any Federal claims and 
further deny that Defendants Hymon, Hubbard, and Chandler are liable 
for damages, either compensatory or punitive, under the pendent 
claim.

25. Defendants deny that Plaintiff is entitled to 
declaratory relief pursuant to 28 U.S.C., Sections 2201 and 2202, 
declaring that the use of "Dum-Dum" type bullets by Memphis Police 
Officers to apprehend persons fleeing from the alleged commission 
of non-violent felonies who pose no threat to the life or physical 
safety to officers or third persons violates the 4th, 5th, 6th, 8th 
and 14th Amendments to the Constitution and the Federal laws enacted 
pursuant to those Amendments.

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i .
4̂  . * /

THIRD DEFENSE

1. For further answer to the Complaint, Defendants 
aver that on October 3, 1974, Defendant E. R. Hymon and his 
partner received a call to go to a residence at 737 Vollintine 
Street, Memphis, Tennessee, and they arrived upon the scene 
at approximately 11:00 P.M. where they were met by the occupant 
of 737 Vollintine, who advised them that the house next door at 
739 Vollintine was being burglarized. Defendant Hymon ran back 
to his squad car, got his flashlight and advised his partner that 
someone was breaking in next door at 739 Vollintine. Defendant 
Hymon ran to the rear of the house and heard |:he rear door slam 
and a noise on the back fence. He shined his flashlight on the

ifence and spotted the deceased on the fence at that time. He 
then called out for the deceased to halt. The deceased continued 
to scale the fence, at which time Defendant Hymon fired one shot 
hitting the deceased in the side of the head.

. 2 . Defendants aver that the actions of Defendant
Hymon are governed by TCA 40-808, which reads as follows:

"Resistance to Officer -- If, after notice 
of the intention to arrest the defendant, 
he either flee or forceably resist, the 
officer may use all the necessary means to 
effect the arrest."

All allegations contained in the Complaint that are «
neither admitted nor denied are here and now denied as though 
specifically denied.

And now having fully answered. Defendants pray that this 
Complaint be dismissed and the costs be adjudged against the 
Plaintiff.

Henry L.yKlein, Staff Attorney 
City of Memphis 

Attorney for Defendants 
Suite 3500, 100 North Main Bldg. 

Memphis, Tennessee 38103

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